SZQUY v Minister for Immigration and Citizenship

Federal Court of Australia|2012-12-11|Before: Kenny J

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("Tribunal"). That decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ("the Minister") not to grant the appellant a Protection (Class XA) visa ("protection visa"). 2 The appeal was initially listed for hearing on 15 August 2012. On that day, the appellant, who was not legally represented, applied through an interpreter for an adjournment. The Minister, who appeared by his solicitor, opposed the adjournment application. After some discussion, for the reasons stated that day, the Court adjourned the hearing to 20 November 2012 upon the basis that the appellant was to file and serve any medical certificates, reports or evidence concerning his mental health by 28 September 2012. As explained below, the hearing was later rescheduled for 7 December 2012. 3 At the 15 August 2012 hearing, the appellant stated that he had met with an accident on 19 August 2010, after the Tribunal hearing on 2 February 2010, as a result of which he suffered mental ill-health and his eyesight and movement were adversely affected. The appellant stated that he remained in ill-health and that he had further medical appointments at the end of the month. The appellant said that he had been unable to understand the Court's 7 August 2012 letter in which he was advised to bring evidence of his continuing ill-health to the hearing if he wished to pursue a foreshadowed adjournment application. The appellant also sought pro bono legal representation in this Court, referring to his mental ill-health. 4 In compliance with the Court's order, the appellant subsequently filed an affidavit that he had sworn on 24 September 2012, with numerous attachments. Of most relevance was a copy of a medical assessment dated 30 August 2012 and signed by Dr Julian Parmegiani. This document recorded that Dr Parmegiani assessed the appellant as having a post-traumatic stress disorder amounting to a 6% permanent impairment. In the same document, Dr Parmegiani is recorded as stating that at the time of the assessment, the appellant enjoyed reading, writing, poetry and keeping a diary. He studied English, Japanese and accounting. He was able to maintain concentration for hours. 5 The appellant's affidavit and accompanying attachments failed to show that, by reason of ill-health, he was unable adequately to conduct this appeal and participate in the hearing of it. 6 At the 7 December hearing, the appellant again sought an adjournment, citing ill-health and his lack of legal representation. Once again, the Minister opposed this course. On this occasion, for the reasons stated that day, the Court declined to grant an adjournment. In the course of discussion, the Court reminded the appellant that the appellant had been informed on 12 November 2012, through an interpreter, that the Court would make no referral for pro bono legal assistance for him and, unless he acquired representation in some other way, he would need to represent himself. A file note at the time recorded that, after some discussion, the appellant indicated that he would be able to represent himself if given an extra two weeks. With this in mind, the hearing of the appellant's appeal was rescheduled to 7 December 2012. 7 Subject to one matter, the Minister relied on written submissions dated 8 August 2012. Save for material relevant to his adjournment application, the appellant did not file any written material in support of his appeal. 8 At the 7 December hearing, the appellant remained unrepresented, although he retained the assistance of an interpreter. The Minister was represented by counsel. The Tribunal had earlier indicated that it submitted to any order the Court may make, save as to costs. 9 For the reasons stated below, I would dismiss the appeal as disclosing no error.

BACKGROUND 10 The appellant is a citizen of Bangladesh who arrived in Australia on 7 August 2009 as the holder of a Visitor (Class TR) visa. 11 The appellant applied for a protection visa on 31 August 2009. On 27 November 2009, a delegate of the Minister decided to refuse to grant the appellant a protection visa. 12 In completing his visa application forms and in an accompanying document headed "Detail[ed] Reason [sic] about Applying for a Protection visa" submitted to the Minister's Department, the appellant claimed to fear persecution in Bangladesh by reason of his political opinion and his work for the Bangladesh Nationalist Party ("the BNP"). He also submitted various other copy documents, including a birth certificate, academic records, records of the discontinuance of his studies in Hong Kong, flight details and a letter signed by an intern clinical psychologist and supervising clinical psychologist at STARTTS, stating that the appellant displayed signs of depression and post-traumatic stress, together with an email from an Asylum Seekers Centre caseworker. 13 On 15 December 2009, the appellant applied to the Tribunal for a review of the delegate's decision. A letter accompanying his review application disputed various aspects of the delegate's decision. In January 2010, the appellant appointed the Refugee Advice + Casework Service (Aust) Inc as his representative in the Tribunal proceeding and, on 1 February 2010, the representative provided the Tribunal with the appellant's statutory declaration of the same date together with additional documents. 14 The appellant appeared before the Tribunal at a hearing on 2 February 2010 to give evidence and present arguments, with his representative present. The Tribunal's statement of decision and reasons indicated that the Tribunal put a number of matters to the appellant for his comment or response in compliance with s 424AA of the Migration Act 1958 (Cth). 15 After the hearing, the appellant's representative lodged another statutory declaration dated 11 March 2011 with the Tribunal, seeking to clarify some factual matters, together with some corroborative documents. Included in the corroborative material was a short note written by a psychiatrist, advising that she had reviewed the appellant on 22 February 2010 and diagnosed him with an episode of major depression. 16 On 13 October 2011, the Tribunal affirmed the decision under review.

Capacity to participate in the hearing 17 Under the heading "Findings and Reasons" and referring to SZNMJ v Minister for Immigration and Citizenship (2009) 112 ALD 284; [2009] FCA 1345, the Tribunal specifically considered whether the appellant had the capacity to participate effectively in the hearing. The Tribunal accepted that the psychologist's and psychiatrist's reports mentioned above were "relevant in assessing whether the applicant [now the appellant] had the capacity to participate in the Tribunal hearing", although neither expressed any explicit opinion on the matter. The Tribunal stated that it did not appear to it that the appellant "had any difficulty recalling things". The Tribunal concluded: Putting to one side some obvious mistakes on which I would not in any event place any weight, I consider that the applicant was able to recall the events which he claims have occurred. He was able to answer my questions and to address the issues which I raised with him in relation to his claims. I consider that he was able to participate effectively in the hearing before the Tribunal.

Claims considered 18 Turning to the appellant's claims, the Tribunal concluded that it did not accept that he feared persecution in Bangladesh because the Tribunal did not accept that he was telling the truth about having been threatened or involved in the BNP or its student wing. The Tribunal gave the following specific reasons for doubting the credibility of the appellant's claims: (a) the appellant's lack of any understanding of the essential ideology of the BNP cast doubt on his claimed involvement with the party or its student wing; (b) there were a number of contradictions in the appellant's evidence about joining the student wing of the BNP while at college; (c) the inclusion of the same transliteration of the name of the student wing of the BNP in the appellant's statements and his supporting evidence indicated that supporting documents purportedly from Alhaj Badal Sarder and Dr Enamul Khan were in fact written by the appellant - a matter that diminished the weight to be attached to those documents; (d) Dr Khan did not apparently hold the position at the Jagannath University as the appellant claimed and the emails purportedly from Dr Khan were sent from a 'yahoo.com' address. This matter diminished the weight to be attached to the emails; and (e) the appellant's claims were found to contain contradictions. 19 For these reasons the Tribunal did not accept that the appellant was involved in the BNP or its student wing in Bangladesh or Hong Kong. Nor did the Tribunal accept that he was threatened as a result. The Tribunal commented that, in so finding, it had given greater weight to its identified concerns "with the applicant's evidence than … to the letters which he produced from Dr Khan and Mr Sarder" - these being letters that the Tribunal considered had been drafted by the appellant in any event. While the Tribunal accepted that the appellant's father had died in August 2009, it noted that the death certificate relied on by the appellant said "nothing as to the reasons why his father was killed". Since the Tribunal did not accept that the appellant had been involved in the BNP, it did not accept that his father had been killed because of this involvement. 20 Accordingly, the Tribunal did not accept that there was a real chance that the appellant would be persecuted for reason of his political opinion if he returned to Bangladesh in the reasonably foreseeable future, and affirmed the delegate's decision.

THE FEDERAL MAGISTRATES COURT 21 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. There were three grounds: 1. I thik [sic] RRT not understant [sic] my explanation and 2. RRT misunderstant [sic] my answer during my hearning [sic] 3. Not get justice from RRT 22 The appellant appeared at a hearing in the Federal Magistrates Court on 3 April 2012 and presented oral submissions in support of his application, with assistance from an interpreter. 23 The learned Federal Magistrate interpreted the appellant's first ground to be a complaint that the Tribunal did not accept his account - a complaint that did not disclose jurisdictional error. His Honour noted that "it is quite clear from the length of the decision record that the Tribunal listened with considerable care to those explanations given by the applicant and then raised with him the concerns that it had in regard to them": SZQUY v Minister for Immigration [2012] FMCA 319 ("SZQUY") at [10]. There was nothing to indicate that the Tribunal had misunderstood the purport of his account. Further, his Honour did "not believe there is any suggestion being made by the applicant that the reference to not understanding was a reference to poor translation but if it was the applicant has in no way established any fault and certainly not the type of fault that would vitiate the hearing itself": SZQUY at [10]. Hence, his Honour rejected the first ground. 24 As to the appellant's second ground, his Honour found no error in the Tribunal's approach to the question whether the appellant's mental condition was such as to preclude him having a full and fair hearing: SZQUY at [13]. As his Honour said, the Tribunal "examined the psychological evidence put forward by the applicant and assessed him on the basis of the responses he gave at the actual hearing": SZQUY at [13]. His Honour further noted that the appellant had a representative of RACS with him at the Tribunal hearing and RACS had assisted him to obtain some medical reports. There was no other matter that apparently bore on this ground. 25 The Federal Magistrate did not regard the appellant's third ground as adding anything. As a result, his Honour held that neither the second nor third grounds were made out. 26 Further, according to the Federal Magistrate's reasons for judgment, at the hearing in the Federal Magistrates Court, the appellant said that his life was at risk in Bangladesh and he challenged the sufficiency of the hearing before the delegate. His Honour noted that "[t]he main thrust of [his] argument … seemed to be that he needed an adjournment in order to respond properly to the Minister's submissions": SZQUY at [16]. His Honour declined to grant an adjournment, on the basis there was "little utility in it": SZQUY at [17]. 27 At the conclusion of the parties' submissions, his Honour dismissed the application with costs.

THE APPEAL 28 The appellant stated his grounds of appeal as: 1. Request to review First Respondent's decision 2. Looking for fair justice Additionally, in his Notice of Appeal, under the heading "Orders sought", the appellant said: 1. First Respondent misunderstand my explanation. 2. Not get justice from First Respond[ent]. 3. Kind request to review this decision because still believe has a reasonable prospect of success. 29 The appellant's grounds of appeal apparently alleged errors on the part of the delegate, although, as the Federal Magistrate noted, any deficiencies on the delegate's part are not matters that affect the Tribunal's hearing. For present purposes, the decision of the Tribunal is the decision that determines the outcome of the appellant's protection visa application unless the appellant were able to show jurisdictional error on the Tribunal's part. Deficiencies on the delegate's part would not of themselves establish jurisdictional error on the part of the Tribunal. As the Full Court of this Court said in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at 515 [92], the Tribunal's decision "supersedes the original decision". The Federal Magistrate's reasons for judgment disclose no appellable error in this regard. 30 The appellant may have intended to challenge the Federal Magistrate's judgment on the basis that his Honour should have found that the Tribunal misunderstood the appellant's explanation and did not accord him justice. Understood in this way, the appeal would nonetheless fail. I accept that, as his Honour noted, the Tribunal conscientiously set out the appellant's claims and the evidence and other material before it concerning those claims; and the manner in which it made its findings and reached its decision disclosed no jurisdictional error. The fact that the Tribunal made findings that were adverse to the appellant, without more, does not show that the Tribunal misunderstood the appellant's explanation; and does not indicate jurisdictional error. The appellant has not identified any other matter that might show a want of understanding on the Tribunal's part of a kind that might amount to jurisdictional error. There was nothing to support the claim that the Tribunal misunderstood the appellant's claims, evidence or explanations. 31 Further, there is nothing in the Tribunal's statement of decision and reasons or shown elsewhere to indicate that the appellant did not "get justice". The fact that the Tribunal did not ultimately decide in the appellant's favour does not of itself establish a want of justice. 32 In substance, the appellant's complaint is that the Tribunal failed to accept the appellant's version of events and denied him a protection visa; and that the Federal Magistrate should have held in the appellant's favour. This complaint does not disclose any relevant error. 33 Only the delegate and the Tribunal were competent to consider the merits of the appellant's application. It was not open to the Federal Magistrate to reconsider whether or not the appellant should be granted a protection visa: on judicial review, his Honour could only intervene if there were jurisdictional error shown in the Tribunal's decision. His Honour held that none was shown. I can discern no error in his Honour's judgment. So far as I can tell, the appellant is not seeking to raise any error on the Tribunal's part that could constitute jurisdictional error and which, arguably, the Federal Magistrate ought to have detected. On an appeal from his Honour's judgment, the Court cannot engage in an evaluation of the merits of the appellant's protection visa application. 34 Though not directly raised by the appellant, there is also no reason to suppose that the Tribunal erred in its approach to the question whether the appellant's mental condition was such as to preclude a full and fair hearing: see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at 581-583 [17]-[22]. 35 At the hearing on 7 December 2012, counsel for the Minister specifically drew attention to the fact that, whilst the Tribunal had afforded the appellant a hearing on 2 February 2010 and received a final submission on the appellant's behalf in March 2010, the Tribunal had not made its decision until 13 October 2011. In this connection, counsel properly referred to the High Court's decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 ("NAIS") and to two decisions of this Court considering NAIS, namely, SZFNX v Minister for Immigration and Citizenship (2010) 116 ALD 85; [2010] FCA 562 ("SZFNX") and SZKJV v Minister for Immigration and Citizenship (2011) 120 ALD 52; [2011] FCA 80 ("SZKJV"). Counsel submitted that NAIS should be distinguished from the present case because the delay involved in NAIS was about four and a half years - and therefore much longer than in the appellant's case - and the Tribunal in NAIS based its decision in part on the relevant applicant's demeanour - whereas in the present appellant's case, the Tribunal's decision had been made on the basis of a careful analysis of the evidence. 36 The judgments in NAIS are discussed in detail in SZFNX at 108-111 [132]-[147] and SZKJV at 57-59 [24]-[33]. I refer to those discussions without repeating them. 37 Whether or not delay in the decision-making process created a real and substantial risk that the Tribunal's capacity to assess the appellant was impaired (NAIS at 476 [10] per Gleeson CJ; compare 501 [102] per Kirby J and 526 [172] per Callinan and Heydon JJ) depends on the circumstances of the particular case. I accept that, as counsel for the Minister submitted in this appeal, NAIS is relevantly distinguishable from the present case. The delay in NAIS was much lengthier than in this case. In NAIS the Tribunal's adverse demeanour-based findings were the basis of a decision adverse to the applicant; whereas, in the present case, the Tribunal reached an adverse decision after a conscientious examination of the evidence presented by the appellant, which it discussed in a detailed statement of reasons. There is little to justify a conclusion that the procedures followed by the Tribunal in this case resulted in unfairness to the appellant. Rather, the considerations mentioned indicate that there was no jurisdictional error of the kind identified in NAIS. I note that the same kinds of considerations also led the Court to conclude that there was no relevant jurisdictional error in SZFNX and SZKJV. 38 The delivery of judgment should not be deferred, as the appellant sought at the most recent hearing, there being no tenable basis on which this might be done. 39 For the reasons stated, the appeal should be dismissed, with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

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