Federal Court: AAT found: Kenyan authorities did not discriminate against people with mental illness, as they did not recognise those types of illness; rather, the authorities would, through a law of general application, take action against the Appellant on the basis of his (potentially criminal) erratic behaviour; thus, AAT found that he would not be discriminated against. Is a foreign law of general application capable of being implemented in a discriminatory manner? If so, can that amount to persecution? Does persecution require a subjective element of enmity or malignity?
SummaryThe Appellant arrived in Australia on a student visa, after which he was diagnosed with schizophrenia (still in Australia) and applied for a protection visa (PV). The Minister refused to grant him a PV, after which he applied to the Tribunal for review of that refusal. The Appellant argued to the Tribunal that he had been diagnosed diagnosed with schizophrenia in Australia and that he was owed protection both under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
...The term "refugee" was relevantly defined under s 5H(1)(a) of the Act as follows (emphasis added):
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality — is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;The term "well-founded fear of persecution" was relevantly defined under s 5J(1)(a) as follows (underlining added, emphasis in the original):
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;The Appellant's claim for at the AAT were as follows:
(a) the appellant was a member of the particular social group “mentally ill persons in Kenya” (the group) and he would be denied medical treatment because of this as the Kenyan government had chosen not to fund mental health services, and the lack of mental health services disproportionately affected members of the group;
(b) the appellant was at increased risk of harm from Kenyan authorities and community members because of his membership of the group as:
... people in Kenya do not try to understand or obtain medical treatment for this behavior[sic] but rather turn to spiritual or home remedies that cause significant harm and worsen the mental health of those already suffering. The authorities and those in the community do not treat everyone in the community in this way, but rather only those who exhibit symptoms of mental illness.
(c) the specific vulnerability of a person with schizophrenia had to be taken into account in assessing what constitutes serious harm;
(d) under the heading “Complementary Protection” the appellant submitted that people with mental illness in Kenya were at risk of being locked away or tied up and that this constituted intentional infliction of pain and suffering even if it was the only known way to deal with mental illness. Further, the appellant submitted:
Given the stigma associated with mental health issues in Kenya ... the motives of family and community members also cannot reasonably solely be attributed to a desire to help but rather can also be regarded as a desire to lock the offending person away to preserve the reputation of the family and community ... the pain and suffering caused by this very brutal pseudo medical treatment is not something that can be considered inadvertent as it is known and intended that this act will lead to pain, suffering and extreme humiliation.
(e) any form of treatment or punishment the appellant may face from Kenyan authorities because of his behaviour needed to be considered in light of his personal circumstances, and should not be regarded as“simply enacting a law of general application”. Although the appellant would be subject to the same laws and punishments as everyone else, there was a real chance that the appellant would face significant harm if he were in the hands of the Kenyan authorities or in prison, and the chance of this occurring was increased because of the consequences of the appellant’s symptoms of schizophrenia. The appellant specifically feared that if he was imprisoned, and not receiving appropriate medical treatment, his “unstable, erratic and delusional” behaviour may lead to his being subjected to abuse and mistreatment by other prisoners.The Tribunal found that: Kenyan authorities did not discriminate against people with mental illness, as that type of illness was not recognised by those authorities; thus, the Appellant did not fear being persecuted "for reason" of membership of the particular social group "mentally ill persons in Kenya" (see s 5J(1)(a) above). As a result, the Tribunal found that the authorities could act against the Appellant on the basis of his (potentially criminal) erratic behaviour (which was caused by his mental health illness), but not "for reason" of that mental illness.
[Ground 1]: The Federal Circuit Court erred by failing to find that the Tribunal erred by failing to consider whether any law that led the appellant to be detained by the police or authorities as a result of actions caused by his mental illness was ‘appropriate and adapted’, such that it did not amount to discrimination qualifying as persecution for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth).
[Ground 2]: The Federal Circuit Court erred by failing to find that the Tribunal erred by focussing not on the impact of the conduct being persecutory, but on the intent represented by the label (or lack thereof) given by the alleged persecutors. That is, the Tribunal erred by asking the wrong question, which question was concerned with the subjective motivations of the future persecutor of the appellant.
[Ground 3]: not discussed in this article.The FCA held as follows.
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