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[2010] FCA 154
Federal Court of Australia
2010-02-10
Mr J, Rares J
Original judgment source is linked above.
REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The sole issue in this appeal from the Federal Magistrates Court's refusal to grant constitutional writ relief to the appellant concerns the way in which the Refugee Review Tribunal dealt with evidence from an intern clinical psychologist.
tHE PSYcHOLOGIST'S REPORT 2 The psychologist reported that she had met the appellant not long before the tribunal hearing. Her report said that during the assessment the appellant briefly described experiences of religious persecution he had had in Bangladesh. She then opined that the appellant reported and displayed a number of symptoms that were consistent with those of post-traumatic stress disorder and dysthymic disorder. These were sleep disturbance, nightmares, loss of appetite, memory and concentration difficulties, hyper vigilance, persistent intrusive thoughts, excessive worry, feelings of grief and loss, headaches, body pain fatigue, sweating and an exaggerated startle response. The report observed that those symptoms were having a significant impact on many areas of the appellant's functioning and as a result, he was unable to obtain paid employment and was in need of financial assistance.
The tribunal decision 3 The appellant had based his claim to protection on the facts, that the tribunal accepted, that he was a Buddhist monk, had lived in a temple as a child and may have been involved in the religious, social and educational activities of the temple. The tribunal accepted that he performed work for an organisation associated with the temple. But it rejected his claims that, as a result of those activities, he had been targeted by fundamentalist or the Taliban or other people who were associated with Muslims hostile to Buddhists. The tribunal did not accept that he had been harassed or threatened or physically harmed or that such things had happened to his family by reason of his or their religion, politics, their familial association or associations with Buddhism, or the appellant's claimed activities. 4 In essence, the tribunal rejected all the appellant's claims that he and his members of his family suffered any persecutory treatment in Bangladesh. It found that there was no real chance that he would be persecuted by reason of his past activities were he to return to Bangladesh now or in the reasonably foreseeable future. 5 The tribunal's written statement prepared under s 430 of the Migration Act 1958 (Cth), referred on a number of occasions to the psychologist's report. It also noted that the appellant's migration adviser, who was present at the hearing, had stated that the appellant had informed him the day before the hearing that he was suffering from a trauma. The adviser told the tribunal that he had recommended to the appellant that he see a psychiatrist to seek treatment. The tribunal inquired whether the appellant had in fact seen a psychiatrist or sought treatment and was told he had not. 6 When it came to assessing the appellant's evidence and the matters that might be seen by it as inconsistent in that evidence, the tribunal had regard to the contents of the psychologist's report and the consistency of his symptoms with post-traumatic stress disorder and dysthymic disorder. The tribunal referred to the symptoms and the suggested possible diagnosis based on them. It said that it was satisfied that the appellant had been given a genuine opportunity to appear and present oral evidence. It noted that he had provided answers that were detailed and responsive and he had not appeared to have any experienced difficulty in understanding its questions or replying to them. The tribunal did not accept that the inconsistencies in the appellant's evidence, and other concerns that it described in the course of making adverse findings against him, were a result of his mental or medical condition. 7 The tribunal found the appellant had been untruthful in his evidence in a significant number of respects. It concluded that he had fabricated particular evidence of an incident in 2004 that he gave during the course of the hearing. He recounted that an associate of his asserted oppressor had entered the temple, demanded that he stop his activities and then slapped him. The tribunal did not accept that the appellant's general reference in his protection visa application to having been tortured was an adequate representation of this specific incident in which he had been physically assaulted. It concluded that his evidence of this incident in 2004 had been fabricated. It was not satisfied that the appellant had been unable to avoid harm by the claimed oppressors while he was living and working in the temple for over two years from 2002. 8 The tribunal raised with him that he had given significantly inconsistent evidence in his written and oral accounts in relation to his claim to have been implicated by his oppressors in an incident involving firearms that the police found in the temple that had resulted in criminal charges being brought against him. The tribunal found that the appellant had claimed he could not sleep and eat and that he did not think he had to confront a procedure like that in the tribunal. It expressed itself as being mindful of the letter from the psychologist and referred to the symptoms that he exhibited. But it found that in his evidence he had appeared to have been confused about some aspects of his claims while he had been able coherently to describe in detail other aspects. The tribunal found that the appellant was generally responsive to its questions and effective in the presentation of his evidence. It did not accept his explanation for the inconsistencies or that they were as a result of his medical condition. 9 The tribunal found his inconsistent oral and written evidence about those events to be of great significance because it related to serious incidents of harm and harassment which he claimed to have experienced and which formed the basis of his claims. The tribunal also considered that a number of documents that the appellant had provided in support of his claims were bogus and that his willingness to produce them adversely affected his overall credibility. 10 The tribunal also considered the appellant's claim that in 2005 he had fled to India to escape persecution in Bangladesh. He had then travelled to a number of different countries, and returned to India. He claimed to have been told in late 2007 that his mother was ill and that he arranged to visit her. He claimed that he spent 22 days in Bangladesh, as his passport evidenced, although only a few hours in his home village. He asserted he had spent 12 days on a bus. 11 The tribunal concluded that he had not been truthful about his activities in Bangladesh during that visit including his claim that he had only spent a few hours in his home village. It saw his willingness to travel to that country as being inconsistent with his claims that he was in fear of his life. It then said: "While many of these concerns on their own may appear to be insignificant, the combination of these matters causes the tribunal to find that the applicant has been untruthful in his evidence. The tribunal rejects the applicant's claims of persecution in Bangladesh." Critically for present purposes, the tribunal then went on to say: "[92] The Tribunal has considered the applicant's claim that he is mentally unstable and the STARTTS report, which refers to the applicant describing his experience of religious persecution he experienced in Bangladesh and notes that the applicant displays a number of symptoms that are consistent with the PTSD and Dysthymic disorder. While the Tribunal acknowledges the applicant's condition and has given it due weight when assessing the applicant's evidence, the Tribunal does not consider the report itself to be probative evidence of the religious persecution the applicant experienced in Bangladesh as the report relies on the applicant's description of such persecution." (emphasis added)
The appellant's challenge to the tribunal's decision 12 The appellant argued that the last sentence in this passage indicated that the tribunal had refused to consider whether there was a real chance that the symptoms it had accepted that the appellant had, could have been caused by, and so be corroborative of, his claimed persecution on the basis that it already disbelieved him about that persecution. In other words, the appellant argued that in this sentence the tribunal rejected any corroborative effect of the psychologist's report that he had suffered persecution as demonstrated by his symptoms. He argued that his symptoms could have been consistent with such persecution. But, he argued, the tribunal had refused to consider this as evidence to be weighed in arriving at a conclusion about his claims because it did not believe him on the critical events that he claimed had occurred to him on the premise that the report itself relied on the appellant's own description of those events to draw its link of consistency. 13 The appellant argued below, and on appeal, that it was only in cases in which an applicant for review had been so thoroughly discredited in his account of his or her own evidence to the tribunal that it was unnecessary for it to consider any evidence that might otherwise have been corroborative, because it could not be satisfied with the alleged corroboration. He argued that it would only be in cases where a party's credibility had been so weakened that the tribunal of fact could well treat what was proffered as corroborative evidence as of no weight for the reasons given by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at 70 [49], namely: "… because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker enjoined by statute to apply inquisitorial processes (as here) to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that the case comprises lies by the party." 14 The trial judge rejected this argument. He was not satisfied that the decision in Applicant S20/2002 198 ALR 57 operated only in "a poisoned well" case and held that it could operate in a case such as the present.
The argument on appeal 15 On appeal, the appellant argued that unless the tribunal had come to the conclusion that the well was poisoned in such a manner and to the degree indicated in Applicant S20/2002 198 ALR 59, it was required to, and in this case had failed to, consider the totality of the evidence that bore upon the facts to be found. He argued that having accepted that the appellant had the symptoms described in the psychologist's report, and that they were consistent with the conditions she described, it ought to have assessed whether those symptoms and their consistency with the conditions were themselves corroborative of his having suffered the persecution which he claimed. 16 The appellant relied on what Finkelstein J had said in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 at [23], [24] and [27]. He observed that a decision-maker had to consider any direct evidence of the existence of the facts in issue, together with any corroborative evidence that bore on that issue, and that it would only be a rare case indeed where the exception to the general rule referred to in Applicant S20/2002 198 ALR 59, would operate. He also referred to what Lee and Moore JJ had said in WAIJ v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 80 ALD 568 at 574-575 [27]. There, an applicant for review had complained that the tribunal had failed to have regard to certain documents because it was not convinced that the documents could overcome difficulties with the applicant's evidence. They held that for the exception of a "poisoned well" to apply there would need to be cogent material to support a conclusion that the appellant had lied. Their Honours said that it would not be open to exclude such material as worthless or not worthy of consideration as corroboration of an applicant for review's claims merely because the tribunal would consider it unlikely that the events described by the applicant would occur. They continued: "In such a circumstance the tribunal would be bound to have regard to corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error."
Consideration 17 A significant feature of the psychologist's report is its meagre description of a possible diagnosis of two psychological conditions (post traumatic stress disorder and dysthymic disorder) coupled with its observation that these were consistent with the symptoms described by the appellant. The only statement of the history taken from the appellant was that he "briefly described experiences of religious persecution he experienced in Bangladesh". The appellant here did not rely on that as being corroborative of his claim as such, but rather, on the fact that he had the symptoms and that they were consistent with the psychological conditions. The appellant did not argue that this necessarily required a finding of a diagnosis that those conditions were post-traumatic stress or dysthymic disorder, but merely said that his symptoms were corroborative of his having suffered from the events he claimed which had led to the development of the symptoms and conditions. 18 The psychologist's report did not express a connection between the meagre history she had described as taken from the appellant and his symptoms or the two psychological conditions. 19 The use of medical and psychological evidence, as well as suggestions in evidence before the tribunal that applicants for review suffer or may suffer from medical or psychological conditions such as post-traumatic stress disorder, has been considered in a number of authorities. Indeed, Applicant S20/2002 198 ALR 59 was itself a case with similar features. There the applicant for review had complained of an actual medical condition, being a form of hernia that he claimed was occasioned by reason of his treatment by persecutors in Sri Lanka. There, the tribunal had said it could not give weight to a doctor's report that such a condition was unusual in a 27 year old because the doctor was relying on the applicant for review's assertions as to how the hernia had been sustained. It had found that he was not a credible witness and could not be satisfied he had ever been detained or physically mistreated by the Sri Lankan authorities. Gleeson CJ said there was no error in the way in which the information from the doctor was treated. As McHugh and Gummow JJ, with whom Callinan J concurred, said, the critical passage in the reasons of the tribunal in that case should be read as reasoning that because the applicant for review could not be believed, the tribunal could not be satisfied with the alleged corroboration given by the doctor and that the tribunal was then unwilling to give that evidence weight: Applicant S20/2002 189 ALR at 64 [17] and [70] 49, 71 [51]-[52]. McHugh and Gummow JJ said: "The tribunal discounted the medical report for its reliance upon assertions by the appellant as to the circumstances in which the hernia had been sustained." 20 Shortly afterwards, in Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, the Court dealt with a situation in which the tribunal found that the applicant for review had been suffering from post-traumatic stress disorder. The tribunal had accepted that that condition could explain inconsistencies in earlier information he had provided and did not hold those against him. As Gleeson CJ observed, there was no argument there that further assessment of the applicant for review might have provided evidence that he had been, in fact, seriously harmed before he came to Australia: SGLB 207 ALR at 16-17 [19]. In their judgment, Gummow and Hayne JJ noted that in preparing its written statement under s 430 of the Act, the tribunal was obliged to determine which of conflicting accounts it accepted. They noted that after accepting that the applicant for review's ability to give evidence may have been impaired by the condition, the tribunal went on to determine whether his current condition was a consequence of Convention-related events in Iran rather than occurring during his detention in Australia. It was for the tribunal to make findings on the events which the applicant for review claimed had led to his decision to leave Iran. Their Honours said: "That is to say, while the tribunal was prepared to take the respondent's claims at their highest, namely, as last described in the oral evidence (at hearing) and written evidence (by affidavit after the hearing) where there was a conflict the tribunal was nevertheless bound to decide between those inconsistent accounts." 21 They held that the tribunal was still at the end of the day required to make a factual finding about those matters. It is of course the case that the reasons of an administrative decision-maker are intended to inform and they are not to be read with an eye finely attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 185 CLR 259 at 272. 22 In my opinion, the critical passage in [92] of the tribunal's reasons does not reveal a jurisdictional error. Rather, the tribunal had to make a factual finding. The appellant claimed a connection could exist between his symptoms as accepted by the tribunal and the claimed persecution. But, the tribunal was not satisfied such persecution existed, and found that there was no corroboration available from the symptoms. 23 I see no error in the way in which the tribunal expressed itself in discounting any probative effect of the existence of the symptoms as supporting the appellant's claims. In order to assess whether or not the aetiology of his symptoms was the persecutory conduct, or that there was a real chance that they had resulted from that conduct, the tribunal necessarily had to assess all of the evidence. It did so throughout mindful of the fact that the appellant was in fact experiencing and suffering from those symptoms. On a fair reading of the whole of the tribunal's reasons, it was conscious that he suffered from those symptoms, but considered that his substantive claim of persecutory treatment was simply, as it said, "untruthful" and had been "fabricated." 24 The tribunal's lack of satisfaction about the substantive factual events that the appellant said had occurred in Bangladesh was arrived at in a way that does not appear to be illogical or irrational or such as no reasonable person could have reasoned. The inconsistencies and implausibilities which the tribunal exposed in its reasoning concerning the factual claims entitled it to find that, even if it were to treat the symptoms the appellant was exhibiting as corroborative of his claims, those symptoms would have taken his claim no further. On the basis that the tribunal assessed the matter, the symptoms could hardly explain why, for example, the appellant had returned to Bangladesh for 22 days when allegedly in fear of his life and he was unable to explain to the tribunal's satisfaction why he was there. Similarly, the tribunal has not been shown to have been unable to treat, as it did in [92], the symptoms that the appellant was exhibiting as not satisfying it that they were probative of persecution where his account had the significant inconsistencies or untruthfulness which the tribunal identified. 25 I am not satisfied that his Honour erred in the conclusion that he arrived at below or that any jurisdictional error asserted has been established. 26 In my opinion, the appeal should be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
SZNGI
Minister for Immigration and Citizenship