SZNMJ v Minister for Immigration and Citizenship

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.

FEDERAL MAGISTRATES COURT 10 By Application filed in the Federal Magistrates Court of Australia on 20 April 2009, the appellant sought judicial review of the Tribunal's decision. 11 Before Federal Magistrate Smith the appellant claimed: 1. A significant jurisdictional error made by the "the tribunal" by failing to take in to account the fact that the appellant will suffer serious persecution as he was highly active in politics through one of the two major political party in Bangladesh.

2. The Tribunal didn't comply with 424A of the Migration Act thus have committed a jurisdictional error.

12 In respect of the contention raised in the first ground, Smith FM found that the Tribunal thoroughly identified and considered all the claims of the appellant. His Honour considered that this contention was merely a complaint that the Tribunal did not accept his substantive claims for a protection visa. 13 In respect of the contention raised in the second ground, his Honour was unable to identify any information coming within the ambit of s 424A of the Migration Act 1958 (Cth) ('the Act'), and which was not the subject of the Tribunal's procedures purporting to apply s 424AA of the Act. 14 Having found no jurisdictional error in the Tribunal decision, Federal Magistrate Smith dismissed the Application.

APPEAL TO THIS COURT 15 On 8 September 2009 the appellant filed in this Court a Notice of Appeal from the decision of Federal Magistrate Smith. The appellant raised the following two grounds of appeal: 1. That the Federal Magistrate erred in not considering that, a significant jurisdictional error was made by the Refugee review Tribunal by failing to take in to account the fact that the appellant will suffer serious persecution as he was highly active in politics through one of the two major political parties in Bangladesh.

2. That the Federal Magistrate erred in not considering that the Refugee Review Tribunal committed a Jurisdictional error by not complying with 424A of the Migration Act.

16 The grounds of appeal contained in the Notice of Appeal are identical to those considered before Smith FM. No particulars were provided of either ground of appeal. 17 On 9 November 2009 the appellant, after acquiring counsel, filed submissions attaching a draft Amended Notice of Appeal. Such Notice raised three grounds of appeal as follows: 1. The Federal Magistrate erred in finding there was no jurisdictional error affecting the decision of the Refugee Review Tribunal of 23 March 2009

The tribunal failed to fulfil its duty to inquire into the circumstances leading to the conclusion of a clinical psychologist of the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, contained in a letter of 13 November 2009, that the appellant suffered from Post-Traumatic Stress and Dysthemia associated with past traumatic experience.

2. The Federal Magistrate further erred in finding there was no jurisdictional error affecting the decision of the Refugee Review Tribunal of 23 March 2009

The tribunal failed to lawfully consider the letter of a clinical psychologist of the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, of 13 November 2009, stating that the appellant suffered from Post-Traumatic Stress and Dysthemia associated with past traumatic experience.

3. The Federal Magistrate erred in finding that there had not been a failure to comply with s 424A(1) of the Migration Act 1958.

a. The tribunal failed to give the appellant particulars of the fact that the letter of 13 November 2009 said nothing about the appellant's history, and that the omission would be part of the reason for affirming the decision under review.

b. The tribunal failed to ensure that, as far as reasonably practicable, the appellant understood why the absence of the appellant's history was relevant to the review and the consequences of the tribunal relying on the absence of the appellant's history in the letter.

c. The tribunal failed to invite the appellant to either comment on, or otherwise respond to the fact that the letter of 13 November 2009 said nothing about the appellant's history.

18 At the commencement of the hearing the appellant sought leave to rely upon a Further Amended Notice of Appeal which incorporated the three grounds referred to above, and a further ground raising issues under the Privacy Act 1988 (Cth). For reasons delivered during the hearing, this request was refused. 19 Since the first two issues raised by the proposed Notice of Appeal were not the subject of any claims made before the Federal Magistrate, leave of this Court is required before they can be relied upon. 20 The issues to be considered on an application for leave to raise issues on appeal which were previously not before the Federal Magistrate are conveniently summarised in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11]. One such authority referred to in that summary is that of Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] in which his Honour stated eight factors which should guide the discretion to grant leave for an appellant to rely on new grounds of appeal. His Honour said: Thus, relevant questions include:

1. Do the new legal arguments have a reasonable prospect of success?

2. Is there an acceptable explanation of why they were not raised below?

3. How much dislocation to the Court and efficient use of judicial sitting time is really involved?

5. Will the resolution of the issues raised have any importance beyond the case at hand?

6. Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

8. If not, where, in all the circumstances, do the interests of justice lie?

21 In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, Lander J at [31] also considered the approach which a Court should take when grounds not raised before the Federal Magistrate are raised for the first time in the Federal Court on an appeal. His Honour made express reference to the fact that the mere fact that an appellant did not have legal representation in the Court below is not, by itself, a sufficient reason for the Court to grant leave for new grounds to be relied upon on appeal when the appellant gains legal representation: see [20] of SZKMS. His Honour concluded that it was necessary for the Court to at least consider the new grounds sought to be relied upon. 22 Generally, leave will be granted where it is 'expedient in the interests of justice to allow the new ground to be argued and determined': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26].

RELEVANT FACTS 23 The first and second grounds of appeal relate to a report prepared on 13 November 2008 by a clinical psychologist engaged by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors ('STARTTS report'). The STARTTS report was prepared for Ms Levett of the Asylum Seeker Assistance Scheme of the Red Cross. 24 Such report was not contained in the Appeal Books either before this Court or before the Federal Magistrate. However, a copy was provided to the Court and exhibited at the hearing. The STARTTS report states: Thank you for your referral of Mr. Fernandez. I conducted an assessment on 6.11.08. Mr. Fernandez reports and displays a range of symptoms associated with Post-traumatic Stress and Dysthymia (depression). These symptoms include: a depressed mood; poor and disturbed sleep; nightmares; intrusive thoughts and images associated with past traumatic experience and current fears for his family; fear reactions; and somatic symptoms including headaches.

As a consequence of this symptomatic presentation, Mr. Fernandez is currently not capable of undertaking paid employment. He is therefore in need of whatever financial assistance can be provided to him. Should you require further details please do not hesitate to contact me.

25 There is no evidence of how the report was supplied to the Tribunal, but it must have come before the Tribunal at some point because it was referred to by the Tribunal in its summary of the hearing and in its findings at [78]-[79] as follows: As referred to above, in a letter dated 13 November 2008 a clinical psychologist at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) said that he had conducted an assessment of the applicant on 6 November 2008, that the applicant reported and displayed a range of symptoms associated with Post-Traumatic Stress and Dysthymia (depression) and that '[a]s a consequence of this symptomatic presentation' he was currently not capable of undertaking paid employment.

I accept that the applicant is suffering from Post-Traumatic Stress and Dysthymia (depression) [referred to hereafter as 'PTSD'] as stated by the psychologist. While the psychologist stated that the symptoms reported by the applicant included 'intrusive thoughts and images associated with past traumatic experience' he said nothing about the applicant's past history. His report is relevant to the applicant's ability to participate effectively in a hearing before the Tribunal: see SZMOI v Minister for Immigration & Anor [2008] FMCA 1507. While the applicant referred in the course of the hearing before me to being mentally upset, as I put to him, I do not accept that his capacity to remember things accurately has been affected. As I noted, when the applicant was talking about his employment history, for example, he was able to give very ready answers which suggested to me that he was telling the truth about his employment history. As I put to him, it was when he was discussing the claims which he had made in the statement accompanying his original application that he had great difficulty in repeating or even remembering anything. Having taken account of the applicant's medical conditions as diagnosed by the psychologist, I consider that the applicant was able to participate effectively in the hearing before the Tribunal.

26 The STARTTS report was also referred to by Smith FM. Having referred to the Tribunal's above references his Honour observed that there was no evidence before him to suggest that the conclusion that the appellant was able to participate in the hearing was not open to the Tribunal, nor that it was incorrect.

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.

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.

38 In its findings at [79] as set out in [25] above, the Tribunal specifically considered the capacity of the appellant to give evidence. The Tribunal referred to the decision in SZMOI and addressed the critical question of the appellant's capacity. 39 The Tribunal was not obliged to do more than consider the conclusions contained in the STARTTS report and to determine whether the appellant had the capacity to engage in the hearing. The Tribunal was not required to conduct an investigation of the matters told by the appellant to the psychologist in order to determine whether such matter might have supported the claims the appellant made of alleged persecution. If material existed which the appellant wished to convey to the Tribunal and which he had raised with the psychologist in support of his psychological assessment, it was the appellant's responsibility to inform the Tribunal of these matters. To suggest otherwise would result in the Tribunal making the appellant's case for him: see Abebe. 40 Further, as submitted by the Minister, it seems highly unlikely that the appellant would have given more personal history to the psychologist than the Tribunal. The Tribunal would have been entitled to expect that an inquiry of the psychologist would not have elicited any more information than it already possessed. 41 Finally, while such argument is only speculation, it might well have been the case that the psychologist would have been reluctant to provide information to the Tribunal, given privacy concerns regarding medical consultation and diagnoses. SZIAI at [26] makes clear that there is no requirement to inquire when such inquiry would be pointless. 42 In these circumstances the Court rejects the submission that there was a failure to make an 'obvious inquiry about a critical fact' (see SZIAI at [25]). Accordingly, the first ground of proposed appeal, namely that there was a failure to inquire, is unmeritorious and leave to rely upon it is refused.

Second ground of appeal 43 As to the second ground it is claimed that the 'tribunal failed to lawfully consider' the STARTTS report. It is submitted that the Tribunal did not actually consider the true significance and weight of the assessment. Reliance is place upon the observations of Madgwick J in NAJT at [212] in which his Honour said: A decision-maker cannot be said to 'have regard' to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [58], a 'decision-maker may be aware of information without paying any attention to it or giving it any consideration.'

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.

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.

CONCLUSION 51 For the above reasons the Court does not grant leave for the appellant to rely upon grounds one and two of the Amended Notice of Appeal. The Court dismisses ground three. It follows that the appeal must be dismissed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 20 November 2009 Counsel for the Appellant: Mr Blount

Solicitor for the First Respondent: Sparke Helmore