V852/00A v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This proceeding involves an application under s 476 of the Migration Act 1958 ("the Act") which was lodged on 1 November 2000. The subject of the application was a decision of the Refugee Review Tribunal ("the Tribunal") made on 5 October 2000 affirming the decision not to grant a protection visa to the applicant. On 28 May 2001 von Doussa J gave leave to discontinue the proceeding by filing a notice of discontinuance. Such a notice was filed on 31 May 2001. 2 The applicant now applies to have the proceeding "reinstated". The notice of this motion was filed by a new solicitor, Ian Graham, although the applicant has not filed (or apparently served) any notice of a change of solicitor. The affidavit in support of the motion is that of Mr Graham. He asserts therein his belief that the applicant was not "fit" to instruct his former solicitors to discontinue the matter. A report of two clinical psychologists, Zachary Steel and Sally Tomkins, dated "5th July 2001" (sic) is annexed to Mr Graham's affidavit. In addition, counsel for the applicant tendered in support of the motion material from the file of the applicant's original solicitors. This material consists of a letter from the applicant dated 6 (or 8) January 2001, subsequent correspondence between those solicitors and the applicant, and, importantly, a file note of a telephone conversation on 25 May 2001. This material was received in evidence without objection. 3 The report of the two clinical psychologists contains an assessment based on an interview with the applicant at Villawood Detention Centre on 14 June 2002. There is no challenge to the qualifications of either of the clinical psychologists. In that report, the clinical psychologists set out a background history of events as told to them by the applicant and describe his clinical presentation and the "trauma experiences" suffered by the applicant for at least the last 20 odd years of his life. (I should add that the applicant was born on 14 January 1945 and is an Iraqi national.) The clinical psychologists then express their opinion of the applicant's current mental state and conclude that he displayed clinical features consistent with diagnoses of chronic severe major depressive disorder and chronic post traumatic stress disorder. Other clinical symptoms are also noted. 4 Mr Steel and Ms Tomkins observe that the stressor to which the applicant was exposed (which they say meets the clinical requirements for post traumatic stress disorder) was a letter he received in January 2001. (The contents of that letter are substantially reflected, one may assume, in the letter dated January 2001 from the applicant to his original solicitors and referred to in [2] above.) According to the clinical psychologists' report, the applicant learned from that letter that his family had been forcibly repatriated from Syria to Iraq and that one of his children had died in prison there. The psychologists conclude their assessment by saying that that news "triggered a complicated traumatic grief reaction in [the applicant] which was associated with symptoms of depression and posttraumatic stress disorder". Mr Steel and Ms Tomkins express what they describe as their professional opinion that the applicant's "mistrust of authority combined with the profound psychological impairment experienced as a result of his posttraumatic reactions meant that [his] mental state was such that he was not competent to make a considered decision regarding the continuation or withdrawal from his Federal Court Case". 5 I therefore approach the application on the basis that the evidence of experts qualified in clinical psychology is that the applicant's clinical presentation in June this year was consistent with a major depressive disorder and a post traumatic stress disorder. That has to be accepted. However, it is a massive leap from that evidence to conclude that at the time when the applicant gave instructions for the notice of discontinuance to be filed in May 2001 he was mentally disabled to such an extent that he was not competent to give instructions in the proceeding. I would not draw that inference. The correspondence from the file of the firm of solicitors then acting for him exhibits a proper and professional regard for the necessity to obtain clear instructions from the applicant to discontinue the proceeding. The solicitor handling the matter at the firm was plainly alert to that requirement. I have no doubt that the applicant clearly gave instructions to discontinue the proceeding and understood what he was doing. The solicitor's file note records her impression that, as the conversation with the applicant progressed, it appeared that he was dejected and disillusioned. I am prepared to make the assumption that that was in fact his condition at the time, but none of that would mean that his capacity was so impaired that he was not competent to give instructions to discontinue the proceeding. I am not able to make such a finding. 6 The Federal Court Rules ("the Rules") proceed on the basis that a discontinuance takes effect when the notice of discontinuance is filed pursuant to the leave granted by the Court: O 22 r 2 and r 5. The parties both approached the matter on the basis that there would be power in the Court to undo that discontinuance and to effect what the applicant's motion describes as the "reinstatement" of the proceeding. However, where there has been a genuine authority given to solicitors to execute a notice of discontinuance on the part of the client, I am by no means convinced that that is the case. The Rules recognize the effect of discontinuance and contemplate that a further proceeding may be instituted: O 22 r 7. That is why express provision is made for discontinuance to be subject to the terms of any leave, which is frequently given on the terms that, as to some aspect of the discontinued proceeding, the discontinuance may operate as a defence to a further application. No such terms were imposed in this case. However, a further proceeding would, of course, be affected by the limitation in s 478(1)(b) of the Act, a provision which von Doussa J would have had in mind when he gave leave. 7 Even if I were of the view that I did have what was described as a discretion to undo the discontinuance and reinstate the proceeding, it would not in my view be appropriate to exercise such a discretion in favour of the applicant in the present case. Counsel for the applicant submitted that this was a strong case if the matter were to proceed. He referred to certain aspects of the evidence before the Tribunal and to the way in which that evidence should have been weighed in making the Tribunal's findings as to the prospects of there being a real chance of the applicant being refouled from Syria to Iraq. However, the solicitor appearing for the respondent is correct when he submits that, that question having been addressed by the Tribunal, this is not a case where there has been a failure to consider an issue, but merely one where the applicant wishes to quarrel with the findings of fact in relation to one of the issues that the Tribunal had to consider. There were, as the solicitor for the respondent correctly put it in his submissions, three questions to be relevantly asked in this case: 1) Is there a safe third country where the applicant will not face a real chance of persecution for a convention reason? 2) Can the person gain access to that safe third country? 3) If the person is admitted to that country, is there a real chance that the person might be refouled to a country where there will be a real risk of persecution? So far as the third of those questions is concerned, whether the Tribunal's findings of fact on that issue are sustainable will not support a successful challenge in a review application. 8 Accordingly, the motion will be refused with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.