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[2010] FCA 149
Federal Court of Australia
2010-02-24
Bennett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellants are citizens of India who arrived in Australia on 4 March 2008. They lodged applications for protection visas which were refused by a delegate of the Minister. They applied to the Tribunal for a review of that decision and the Tribunal upheld the delegate's decision. An application to the Federal Magistrates Court was dismissed. The appellants claimed to be Latin Catholics and members of the Mukkuva caste from Kerala in India and claimed to fear persecution on the basis of their religious belief and caste membership. 2 Without going into detail, part of the basis of the appellants' claim to persecution was that they feared a Hindu extremist group and they claimed that they had been persecuted, threatened and attacked. They claimed that the male appellant was stabbed, that the female appellant was assaulted and that they were hospitalised for some nine days. They claimed that they reported a local group leader of that group to the police and that the police filed a case against this person. However, they claimed that when they went to court in connection with the case, members of the group threatened that they should withdraw the case or they would be killed. 3 The appellants claimed that they decided to leave Kerala and that while they reported the incident to the police and government, the response was inadequate. They also claimed that they could not relocate outside Kerala. 4 The Tribunal accepted that the appellants were Latin Catholics from the town they claimed to have come from in Kerala and that they were members of Mukkuva caste. However, the Tribunal did not accept that the appellants were witnesses of truth, being satisfied that they had 'created their claims in order to obtain the visas sought'. In particular, the Tribunal noted a number of inconsistencies in their evidence and claims and the failure by the appellants to explain these inconsistencies. It is not necessary to go into all of the details of the Tribunal decision for the purposes of this appeal except to say that the Tribunal comprehensively dismissed the appellant's claims and did not accept that they had a well-founded fear of persecution for reasons of their real or imputed political opinion or religion or for any other Convention reason if they returned to India. 5 In the notice of appeal from the Federal Magistrate's decision, the appellants raise three grounds which are: 1. jurisdictional error, 2. breach of natural justice, and 3. breach of section 424A of the Migration Act 1958 (Cth) (the Act). No particulars are given. These grounds as framed in the notice of appeal are mere assertions and as such are not made out. 6 In written submissions, the appellants raised what may be said as a particular of jurisdictional error. Other matters raised in the written submissions go to merits review, such as an assertion that the Tribunal did not believe the appellants although they gave evidence to prove their claims. In essence, the matter raised in the written submissions is that the Tribunal did not give sufficient weight to a report of a psychologist as to the female appellant's mental state (the STARTTS report). The STARTTS report was relied upon on two bases: 1. that acceptance of the conclusion of the female appellant's mental state necessitated acceptance of her stated reasons for that mental state being the alleged persecution in India; and 2. as an explanation for any inconsistencies in the female appellant's evidence at the Tribunal hearing being due to her psychological condition. 7 The appellants appeared in person at the hearing of the appeal, assisted by an interpreter. They raised an additional matter at the hearing as a particular of the asserted denial of natural justice. The appellants say that they sought extra time from the Tribunal to present material, which extensions were refused.
The STARTTS report 8 Federal Magistrate Barnes dealt with each of these matters which were raised before her. As to the STARTTS report, her Honour noted as follows: 1. It was apparent from the Tribunal's decision that it did give consideration to the STARTTS report. 2. For reasons given by the Tribunal it gave no weight to the report. 3. In particular, the Tribunal had found that there was no indication in the report as to when the female appellant's symptoms commenced, whether she had had any treatment or whether the condition was long term. Further, while the report stated that the female appellant's condition had a 'significant impact on many areas of her functioning', it did not describe what that significant impact was or suggest that she required treatment or that the psychologist saw her on more than one occasion. 4. Her Honour found that the Tribunal's findings were open to it on the evidence and distinguished the decision of Collier J in SZKHD v Minister for Immigration and Citizenship [2008] FCA 112. 9 The STARTTS report, on its face, was prepared for the purposes of assessing the female appellant's ability to perform paid employment and need for financial assistance. As noted by Barnes FM at [45], the Tribunal considered the report, both in relation to whether it supported the female appellant's claims that she had been receiving counselling from the Red Cross for trauma and also in relation to whether she was unable to recall events or confused dates and places as she claimed, relevant to her ability to participate in the Tribunal hearing. Her Honour pointed out that the Tribunal considered and weighed the relevance of the STARTTS report. 10 It cannot be said that the Tribunal accepted the conclusions in the report and that it necessarily followed that the Tribunal was bound to accept the factual basis for an accepted diagnosis. The STARTTS report does not deal with the connection between the fact that the female appellant 'briefly described the religious persecution and severe trauma that she and her husband experienced in India', about which the report contained no detail, and the psychological symptoms she displayed. The STARTTS report does not refer to a symptom of difficulty of recall or an inability to participate in a hearing. The STARTTS report in this regard is similar to a STARTTS report described by Cowdroy J in SZNMJ v Minister for Immigration and Citizenship [2009] 1345 at [45]. His Honour there said that where no history was contained in the report and the Tribunal had no knowledge of any information that may have been provided by the appellant to the psychologist, 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. In this regard, as his Honour observed, it is distinguishable from SZKHD. 11 It cannot be said, in the present case, that the Tribunal failed to consider the STARTTS report in relation to the female appellant's ability to participate in the hearing. The Tribunal referred to the fact that the psychologist did not indicate in the report when the female appellant's symptoms commenced, or whether she had had any treatment or whether her condition was long-term. The Tribunal expressed itself not satisfied that she was receiving ongoing counselling from any organisation, or that she had any medical condition that suggested that she was unable to recall events, or that she confused dates and faces. The Tribunal considered whether the report affected the explanation that the female appellant gave to inconsistencies in her evidence and whether they were caused by her medical condition, and said that it had no medical evidence before it to suggest that at the time of application on 17 April 2008, the female appellant suffered from a medical condition that affected her ability to recall events. 12 It is the case that the STARTTS report was dated 23 July 2008, a time reasonably concurrent with 17 April 2008, but the Tribunal clearly considered that the report did not relate strictly to the question before it. As I have said, the STARTTS report, on its face, was prepared for the purposes of establishing an inability to perform paid employment. I accept that the Tribunal considered and weighed the relevance of it. The weight given by the Tribunal to the STARTTS report was a matter for the Tribunal. I see no error in the conclusion of the Federal Magistrate at [49], that in all the circumstances, the appellants had not established that the Tribunal erred in determining not to give any weight to the STARTTS report relevant to the issues before it.
Denial of natural justice 13 The alleged denial of natural justice relates to a refusal on the part of the Tribunal to extend time afforded to reply to a section 424A letter, and then to a section 424 letter. As Barnes FM noted, in each case, while there was such a refusal the appellants forwarded material to the Tribunal in response to each letter after the expiry date and the Tribunal took that material into consideration. Further, the second extension was sought in response to a letter of 12 January 2009 which provided for a response by 2 February. Not only was the appellant's reply of 13 February considered although outside the time provided for, the Tribunal also afforded a second hearing to the appellants which they attended on 30 March 2009. This is clearly well outside the extended time sought by the appellants to provide further information. 14 The appellants state orally that they requested additional time at the second hearing to provide further documents, a matter also raised before Barnes FM. As her Honour observed at [53], there is nothing in the Tribunal's account of the second hearing to indicate that such an application was made for further time to provide additional information. There is no transcript of the hearing available and no evidence that establishes that such an application, not referred to in the Tribunal's decision, had taken place. 15 The appellants have not established that they were denied natural justice. After considering the Tribunal's decision in some detail, Barnes FM said at [54] that in all the circumstances, the Tribunal's failure to allow additional time to the appellants to respond to either 424A letter in circumstances where it, in fact, took into account their late responses and the additional information they provided and subsequently held a further hearing giving them the opportunity to provide new information, does not establish jurisdictional error. Her Honour also concluded that the appellants had not established the Tribunal fell into error in relation to the second application for the extension of time, where it gave them a further opportunity to provide additional information at the further hearing. 16 Her Honour concluded that no jurisdictional error was established on any of the bases contended for by the appellants before her. The appellants have not established in the appeal any error on the part of the Federal Magistrate. The only other matters raised by the appellants go to the merits of the Tribunal's decision, in that they said that they had a case but that the Tribunal did not look at it properly. The only examples that they gave, other than the merits of the Tribunal decision, are those with which I have dealt. It follows that the appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
SZNOC
Minister for Immigration and Citizenship
[2010] FMCA 1217