SZNMJ v Minister for Immigration and Citizenship - [2009] FCA 1345 - FCA 2009 case summary — Zoe

CTHFCA

SZNMJ v Minister for Immigration and Citizenship

[2009] FCA 1345

Federal Court of Australia|2009-11-20|Before: Cowdroy J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2009-11-20

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Smith delivered on 18 August 2009 which dismissed an Application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 23 March 2009. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa to the appellant.

[2]

BACKGROUND 2 The appellant is a citizen of Bangladesh who arrived in Australia on 14 July 2008 as a participant in World Youth Day. On 26 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 4 December 2008. On 11 December 2008 the appellant applied to the Tribunal for a review of that decision. 3 In his application for a protection visa, the appellant claimed that his father had been a very strong supporter of the Bangladesh Nationalist Party ('the BNP'). The appellant claimed that whilst he attended school and college he was an active member of the 'BNP wing student politics Jattaytabadi Chattra Dal' ('the JCD'). The appellant claimed that he was also part of the 'Christian minority' which, together with his support for the BNP, made his life difficult when that party was not in power. He claimed that he had been assaulted on several occasions, and had been treated in hospital in 1996 after one such attack. He claimed that after the success of the Awami League in elections in 1996 he was arrested by police in 1997 after returning from a political meeting and was tortured by them. 4 The appellant stated that he moved to Chittagong and then to Dhaka. As an activist he participated in party meetings, political demonstrations, rallies and strikes. He claimed to have been assaulted by 'Awami League cadres' following a demonstration in which he participated at the end of October 2006, requiring treatment in hospital. 5 The appellant claimed that in June 2008 'the joint forces' came to his home, but he was not present. He then decided to take the opportunity of World Youth Day to come to Australia. He claimed that his life was at risk if he returned to Bangladesh and was caught by the joint forces, and that his life was threatened by 'the Present Caretaker Government and Awami League cadres'.

[3]

THE TRIBUNAL'S DECISION 6 The Tribunal didnot accept that the appellant was a witness of truth, finding that there were numerous inconsistencies in his evidence as to whether he was ever a member of the BNP and JCD. As a result of the Tribunal's view of the appellant's credibility, it specifically rejected every element in his claimed history concerning his involvement in political activities, assaults and other persecution encountered. The Tribunal did not accept that there was a real chance that the appellant would be persecuted for reasons of his real or imputed political opinion, or his membership of a particular social group constituted by his family if he returned to Bangladesh. 7 In reaching its conclusion, the Tribunal considered whether psychological reasons had affected the appellant's capacity to remember past events which could have led to the discrepancies in his account, and rejected such contention. Such consideration was prompted by a psychological report which is the subject of this appeal and will be discussed in greater detail later in the judgment. 8 The Tribunal accepted that the appellant was a Catholic. The Tribunal considered the appellant's claims that religion had been an element in his persecution when he was involved in political activities, but it said that, because it had not accepted his claims of involvement in political activities, it did not accept that he was 'ever singled out, attacked or tortured in Bangladesh for reasons of his religion as a Christian'. The Tribunal noted that the appellant had not claimed that he was threatened or attacked or otherwise persecuted for reasons of his activities as part of the Christian community in Bangladesh, and did not accept that there was a real chance that he would be prevented from practising his religion in Bangladesh, nor that he would otherwise be persecuted by reason of his religion as a Christian in Bangladesh if he returned to that country. 9 The Tribunal concluded that the appellant did not have a well-founded fear of persecution for a Convention reason if he returned to Bangladesh now or in the reasonably foreseeable future and that the appellant was not a person to whom Australia has protection obligations. Tribunal therefore affirmed the decision of the delegate not to grant the appellant a Protection (Class XA) visa.

[30]

CONSIDERATION 27 The only explanation for the failure to raise the new arguments now sought on appeal in the Court below was that the appellant was unrepresented. No prejudice has been identified by the Minister. However, the Minister has submitted that pursuant to SZKMS, the mere fact that the appellant was unrepresented in the Court below and no prejudice is identified by the Minister is not enough by itself to justify the Court granting leave for new grounds of appeal to be relied upon. The Court accepts that the submission is correct, however, given that the merits of the proposed grounds were argued before the Court, the Court considers that it ought to consider the merits anyway. 28 The appellant relies upon two decisions in which psychological reports had been considered. In SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 the Tribunal considered a psychologist report which had diagnosed major depressive disorder and other psychological problems suffered by the appellant in those proceedings. In those proceedings the Tribunal had not accepted the appellant's claims of having been a Falun Gong practitioner. It stated that it was 'mindful' of the appellant's mental health issues. 29 On the application for review before the Federal Magistrates Court, it was claimed that the Tribunal's decision overlooked the fact that the psychological report corroborated the appellant's claims of detention. The Federal Magistrate considered that the report was unsatisfactory in that it had not identified conclusions but rather 'diagnostic formulations'. The Federal Magistrate was also critical of the Tribunal because it had not clearly stated whether it accepted the psychologist's opinion as to the condition suffered by the appellant without accepting the opinion as to the cause of the condition. The Federal Magistrate inferred that the Tribunal only intended to accept the psychologist's opinion as to the mental condition of the appellant and not the cause. 30 On appeal to the Federal Court, Collier J found that the report was relevant and that the Tribunal had taken it into consideration. Further, her Honour found that the 'diagnostic formulations' were inextricably linked to the psychologist's acceptance of the factual claims of the appellant and that to accept the psychologist's formulations but simultaneously to reject the factual basis for those formulations constituted a failure by the Tribunal to give proper consideration to the evidence. 31 The appellant also relies upon the decision of Driver FM in SZMOI v Minister for Immigration & Anor [2008] FMCA 1507 in which a psychological report referred to the fact that the applicant displayed symptoms consistent with post traumatic stress disorder ('PTSD') including poor concentration and memory. The report concluded that the applicant was not able to work. The Tribunal had rejected the applicant's claims to be a refugee based upon the ground of credit. 32 Driver FM observed that it was a question of fact for the Tribunal to determine whether an applicant was able to effectively participate in the hearing and whether his or her ability to give reliable evidence might be impaired by a mental condition. His Honour observed that if the Tribunal made the determination on the available material, no question of jurisdictional error would arise. However, if the Tribunal failed to make such determination on the material it was left to speculation whether there could be a breach of s 425 of the Act. His Honour found that on the material available before him he was unable to make such determination, and that the Tribunal's decision was 'silent on any consideration of the report in relation to the issue of the applicant's capacity to give reliable evidence' (at [24]). He found that that failure to consider constituted jurisdictional error.

[31]

First ground of appeal 33 The appellant in the present proceedings submits that the STARTTS report resembles more closely the psychological report considered in SZMOI than in SZKHD. However, the appellant points out that in SZMOI the report referred to the fact that the symptoms of the applicant were 'associated with past events' whereas the STARTTS report states in these proceedings that the appellant's symptoms are 'associated with past traumatic experience and current fears for his family…'. The appellant submits that similar considerations apply in the present circumstances to those found in SZKHD. The Tribunal in the present proceedings accepted that the appellant was suffering from PTSD. The appellant submits that, applying SZKHD, the Tribunal, having accepted that the appellant suffers from PTSD, accepted that the diagnostic formulation is inextricably linked to an acceptance of the factual claims of the appellant before the psychologist. 34 In view of the above the appellant submits the Tribunal therefore accepted that the appellant had a past traumatic history. The appellant submits that in consequence the Tribunal had a duty to inquire into the facts relied upon by the psychologist in preparing the STARTTS report to ascertain the nature of the events causing that trauma. The appellant refers to the decision of Kenny J in Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 at [64]-[66] in which her Honour considered the instances where circumstances may be such as to require the decision maker to obtain information on a critical issue and that a failure to do so in those circumstances constitutes jurisdictional error because of 'Wednesbury' unreasonableness. 35 It is a well established principle that it is for an applicant to advance the evidence or argument to be put in support of the claim of a well-founded fear of persecution: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57]. However, balanced against such principle is the obligation of a decision maker to make an inquiry in special circumstances. 36 In the recent decision of Minister for Immigration and Citizenship v SZIAI and Another (2009) 259 ALR 429 at [25] the High Court said that it 'may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained could, in some circumstances apply a sufficient link to the outcome to constitute a failure to review'. The failure to make an inquiry was equated by the majority in SZIAI as a constructive failure to exercise jurisdiction. The High Court's decision in SZIAI at [26] appears to leave Le intact, meaning that a failure to inquire can constitute a jurisdictional error on two separate bases: unreasonableness and constructive failure to exercise jurisdiction. 37 The Tribunal record shows that the question of the appellant's capacity to answer questions and participate in the hearing was raised. The Tribunal member put to the appellant an apparent inconsistency in his claim and at [55] the Tribunal outlined the response: The applicant said now it was true. He said that he was having some difficulty mentally. He referred to the fact that since he had come to Australia he had been examined by a psychologist. I noted that the psychologist had said that he was unfit to work but that did not mean that he would not remember if false cases had been filed against him. The applicant said that "False cases were brought against me, now I would say that, because as you have written it from there, that is by me." I put to the applicant that one of the things I had to consider was whether there was any truth in his statement.

[34]

44 The appellant submits that the Tribunal was aware from the STARTTS report that the appellant had been 'subject to trauma in the past and had current fears for his family'. It is submitted that it is not sufficient to take such information into account only for the purpose of determining the appellant's ability to participate in a hearing. Rather, the Tribunal was required to give consideration to the importance of the information to the appellant's case as a whole. The appellant submits that there was no 'active intellectual process' undertaken by the Tribunal to determine the relevance of the psychological assessment to the appellant's claim: see Tickner and Others v Chapman and Others (1995) 57 FCR 457 at 462. It is alleged that in consequence the Tribunal fell into jurisdictional error. 45 The STARTTS report was stated by the Tribunal to be relevant to determining the appellant's ability 'to participate effectively in a hearing before the Tribunal'. The report was provided for such purpose. No history was contained in the STARTTS report as was noted by the Tribunal and the Tribunal had no knowledge of any information that may have been provided by the appellant to the psychologist. In these circumstances, there was no obligation upon the Tribunal to consider the report for any reason other than its role in assessing whether the appellant had the capacity to participate in the Tribunal hearing. Further, there is no factual history in the report, unlike that considered in SZKHD, which tended to support some of the specific claims made by the appellant. Therefore, SZKHD is relevantly distinguishable. 46 Further, the STARTTS report was not a critical matter in the Tribunal's determination. That is, the report and the information in it was not the reason, or part of the reason, for the Tribunal's rejection of the appellant's claims of persecution. 47 Accordingly, the Court finds that the ground of appeal is unmeritorious and refuses leave for the appellant to rely upon it.

[35]

Third ground of appeal 48 The third ground of appeal alleges a breach of s 424A of the Act in connection with the STARTTS letter. The appellant submits that that lack of a history in the STARTTS letter about the appellant's past was an 'omission' relied upon by the Tribunal in rejecting the appellant's claim. Therefore, the appellant submits that the Tribunal fell into jurisdictional error by failing to comply with s 424AA or s 424A of the Act. 49 The claim that there had been a breach of s 424A of the Act concerning the STARTTS report was an issue before Smith FM. However, it appears that the claim was not articulated before him since his Honour was unable to identify any information within s 424A(1) of the Act which had not been provided to the appellant and which had not been the subject of the Tribunal's procedures under s 424AA of the Act. The Amended Notice of Appeal now satisfies such deficiency by particularising the ground of appeal in relation to the STARTTS report and accordingly the Court will determine such ground of appeal without the need for any question of leave. 50 Significantly, the Tribunal did not rely upon the STARTTS report as a reason for its decision to uphold the delegate's decision. The Tribunal made a factual observation concerning the STARTTS report and observed at [79] that it accepted that the appellant was suffering from PTSD. That was a relevant matter for the Tribunal to consider in determining the capacity of the appellant to participate in a meaningful hearing. However, the fact that the Tribunal commented that there was no history for the clinical diagnosis does not have the consequence that the Tribunal regarded that as a reason for its decision. Its decision was essentially based upon the appellant's lack of credibility. Its observation was not 'information' within s 424A(1) of the Act: see Minister for Immigration and Citizenship v SZLFX and Another (2009) 258 ALR 448 at [24]-[26]. Even if the so called 'omission' could constitute information, it could not be said that the 'omission' amounted to a 'rejection, denial or undermining' of the appellant's claims to protection: see SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [17]-[18]; SZFLX at [22]. The STARTTS report had no bearing upon the issue of credibility of the appellant which was the critical matter determinative of the application before the Tribunal.

SZNMJ v Minister for Immigration and Citizenship

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (15)

Cited By (3)