VGAP v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|1951-07-28|Before: Gray J

The nature and history of the proceeding 1 In this appeal, the appellants contend that the Refugee Review Tribunal ('the Tribunal') made a jurisdictional error by failing to deal adequately, or at all, with expert evidence relating to the psychological condition of the first appellant. They say that the psychologist's report contained an expert opinion that the first appellant was suffering from a major depressive disorder resulting from his experiences of torture, and that the Tribunal should have taken this into account in determining whether he had a well-founded fear of persecution if he should return to his home country. They say that the Tribunal ignored or failed to understand the gravamen of the report and thereby failed to perform its statutory function. 2 The appellants are respectively a husband, wife and their two children. They are citizens of Turkey. The first appellant, the husband, is Kurdish and of the Alevi religion. The family arrived in Australia on 12 February 2001 as holders of visitor visas. On 28 March 2001, the first appellant lodged an application for a protection visa, in which the other appellants were named as dependents. On 5 March 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant protection visas. The appellants sought review of that decision by the Tribunal. The Tribunal conducted a hearing on 21 May 2002, at which the first and second appellants gave evidence, and at which they were represented by a solicitor who is a registered migration agent. On 8 July 2002, the Tribunal produced a written decision and reasons for decision, which it handed down on 26 July 2002. The decision was to affirm the decision not to grant protection visas to the appellants. 3 The appellants made an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth), which was heard by the Federal Magistrates Court. On 17 October 2003, the Federal Magistrates Court gave judgment dismissing that application with costs. See VGAP & Ors v MIMIA [2003] FMCA 327. The appellants appealed to this Court from that judgment. 4 By s 36 of the Migration Act 1958 (Cth) ('the Migration Act'), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be either a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, or a non-citizen in Australia who is the spouse or a dependent of such a non-citizen who holds a protection visa. The terms 'Refugees Convention' and 'Refugees Protocol' are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the 'Convention'. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country'.

The first appellant's claims 5 The first appellant claimed to have a well-founded fear of persecution, if he should return to Turkey, for the reasons of his race, religion and political opinion. He gave a long and detailed account of repeated arrests, detentions, beatings and torture, from his early days in his hometown on the Turkish mainland, his years of living in Istanbul, and his subsequent time in the Turkish Republic of Northern Cyprus. He claimed that he had had difficulty in obtaining employment and, although he acquired a passport in 1982, in applying for visas because foreign embassies were guarded by Turkish police, who prevented him from entering because he was Kurdish. He said that his mother died in the 1970s as a consequence of assaults by Turkish security officers whose questions she could not understand. He claimed that he was tortured and beaten every day for three months after he started his military service in 1980. His claims included nocturnal visits to his father-in-law's home by plain-clothes police, who would take him and his father-in-law away and interrogate and beat them all night, because they were Kurdish. He had similar problems when he returned to his hometown for visits. In 1994, he learned that his brother had been shot dead in Turkey and decided not to visit Turkey again. From 1998, he ran a cafe in Northern Cyprus, and claimed that he had received adverse attention from the authorities because the cafe was frequented by Kurdish people. He claimed that he was beaten by the police and tortured because he was Kurdish, Alevi and politically left wing and because he watched Kurdish language television and had Kurdish language newspapers in the cafe. 6 The first appellant claimed that, in late 1998, he was the victim of a car accident that was arranged with the intention of harming him. He was badly injured and taken to hospital by ambulance and left unconscious in the morgue, until an attendant noticed that he was alive. He claimed that, even while he was recuperating, the authorities had continued to come to his home to ask questions, and to take him away and question him. He decided to come to Australia to avoid death. 7 Prior to the Tribunal's hearing, the first appellant provided the Tribunal with a report from a registered psychologist in her capacity as a 'Counsellor Advocate' with the Victorian Foundation for Survivors of Torture Inc. The report stated that it had been prepared for the purposes of a Tribunal hearing and that: 'It addresses the applicant's current psychological functioning, his response to treatment, and his diagnosis.' 8 The report recorded that the first appellant had attended seven counselling sessions of 90 minutes each, at which a Turkish-speaking interpreter had been present. The psychologist said: '[The first appellant] presented throughout our sessions as friendly and courteous. He appeared happy and relaxed, even whilst disclosing horrific experiences of persecution. He often smiled inappropriately as he demonstrated how his torturers hurt him. This presentation was not atypical for people who have endured years of persecution. It is a paradoxical phenomena [sic], as it appears almost as though the person is play-acting, but it is in fact masking severe distress.' 9 Much of the report is taken up with a history obtained by the psychologist from the first appellant himself, and from documents supplied in the course of his attempts to obtain a protection visa, which the psychologist had read. Under the heading 'Psychological Functioning', the psychologist said: '[The first appellant] presented as very adept at burying his sorrow and pain. As noted in the presentation section of this report, he tended to smile throughout disclosures of his torture. This was a useful mechanism during his time of persecution, as it helped him to feel powerful, and helped him to feel that he was protecting his wife and children. This mechanism belied his suffering.' 10 The psychologist then recorded a number of symptoms suffered by the first appellant, before concluding: 'From the above symptomatology, it is evident that [the first appellant] is suffering from a Major Depressive Disorder, Recurrent (DSM-IV 1994)...It is likely that [the first appellant] has experienced depressive episodes since the loss of his mother and his first torture experience at the age of 14 years.' 11 The psychologist also recorded a number of symptoms of post-traumatic stress disorder. 12 Under the heading 'Conclusion', the psychologist said: '[The first appellant] mentioned many times in our sessions that he appears to be physically "big and strong" and that his torturers exerted severe violence in order to overcome this apparent strength. He described being beaten, kicked and suffocated. He described his experience of electric shock. He also described the interrogations and examples of total degradation. One of the worst aspects of his trauma was being forced to witness the torture of others. [The first appellant] survived these experiences by desensitising himself to torture. He laughed whilst he was being beaten, and attempted to bury his sorrow and pain. This desensitisation was apparent in our sessions, where he would smile whilst disclosing horrific experiences. Despite this presentation, it was evident that [the first appellant] is currently suffering from a Major Depressive Disorder, and that it is likely he has suffered depressive episodes since the age of 14 years. It was at this age that his mother had been killed and this led to his first direct experience of torture. His depressive symptoms currently manifest as sleep difficulties, fatigue, weight loss, low frustration tolerance, concentration difficulties, and forgetfulness. He is also suffering from symptoms of posttraumatic stress disorder, including hypervigilance, anxiety, avoidance of conversations about his trauma, and significant distressing nightmares.' 13 In [8] of her reasons for judgment, the learned federal magistrate summarised the claims made by the first appellant at the Tribunal hearing as follows: 'In addition the applicant discussed his claims at a Tribunal hearing. He reiterated his concerns about his past and his likely future. He also told the Tribunal that he was relatively wealthy, with family farms, an expensive house and a café in a prime position but that he could only operate his businesses because he paid large bribes to Turkish officials which were not required by ethnic Turks. He claimed that this was the only reason he was not killed in Cyprus and that he had unsuccessfully tried to obtain visas to other countries before he obtained his Australian visa. He also said that after his car accident occurred in March 1998 he stayed home but that uniformed police visited every day because he had a satellite TV dish and watched Kurdish programs. On one occasion the police came and took him to the police station and tortured him because he was Kurdish, Alevi and left-wing. His wife stated that he was taken away by police more than ten times after the accident and would come home with blood over his face but would not tell her what had happened. The Tribunal put to the applicant that there was an inconsistency between these accounts of events after his accident. The applicant stated that while he was beaten several times, he was tortured only once and that he did not regard beatings as torture because he was immune to beatings and was not hurt by them. His legal representative submitted that this response was consistent with the analysis of Ms Stewart who stated that he had survived such experiences by desensitising himself to torture. He also submitted that he was a successful and wealthy businessman in Turkey and Cyprus and in those circumstances had no reason to flee his country other than to escape persecution. There was no suggestion that the applicant or members of his family had ever had connections with any political organisations.'

The Tribunal's reasons 14 In its reasons for decision, the Tribunal referred to the report of the psychologist. It said: 'Prior to the RRT hearing the Applicant provided a report from the Victorian Foundation for Survivors of Torture Inc (VFST), authored by Ms A. Stewart, registered psychologist. The history recorded by Ms. Stewart generally accords with the claims made by the Applicant in his claims for a protection visa. It provides some detail about his two periods of residence in Istanbul, during which he told the counsellor he was frequently and "routinely" stopped at checkpoints, detained for short periods, interrogated and mistreated before being released. It also provides some detail about physical mistreatment he received for having satellite TV reception of Kurdish programmes. It notes that the incident involving the car "was extremely terrifying and traumatic." It reports that he suffers symptoms of Major Depressive Disorder, Recurrent, concluding that it is likely he has suffered such symptoms since the death of his mother and his first experience of torture when he was fourteen. It also concludes that he suffers symptoms of Post Traumatic Stress Disorder.' 15 The Tribunal said that the first appellant's submissions did not disclose that he, or members of his family, had ever had connections with any political organisations, notwithstanding his claim that he was frequently interrogated, beaten and otherwise tortured because he is Alevi, Kurdish and left wing. It found that he came from an area identified by Turkish authorities as a centre of Kurdish separatism and it accepted that he encountered 'some discrimination' because he is Kurdish and Alevi. It had no doubt that the first appellant had embellished some aspects of his claims and fabricated others. It did not reject all of his claims, recognising that even if it did not believe any of them, the first appellant could still fall within the Convention as a member of a group whose members are persecuted, namely Alevis or Kurds. 16 The Tribunal accepted that the Turkish government and military exercise significant power and influence in Northern Cyprus, but found that different conditions have prevailed in Northern Cyprus, particularly for Kurds, from those prevailing on the Turkish mainland. It found that some Kurds in Turkey have been the victims of human rights abuses during the government's efforts to combat a Kurdish separatist movement. It accepted that the first appellant's mother died after she had been assaulted by soldiers. It found that it was plausible that the first appellant disliked his military service and believed he was treated as a slave. While he might have undergone some difficult training, the Tribunal did not accept that the first appellant was subject to torture and beatings almost every day. It was satisfied that the first appellant had greatly embellished his dislike of national service and concluded that he proceeded through it and was honourably discharged without being harmed for the reasons he described. 17 Relying on information from sources other than the first appellant about the situation in Northern Cyprus, the Tribunal did not accept that people in Northern Cyprus are generally at risk of persecution because they are Kurdish and/or Alevi. It did not accept that the first appellant had been mistreated by officials in Northern Cyprus. It rejected his claims because of inconsistencies in the evidence. Dealing with the inconsistency between the evidence of the first appellant and the evidence of the second appellant about what happened after the car accident in March 1998, the Tribunal said: 'The Tribunal does not accept that the Applicant failed to mention the beatings because he does not perceive beatings to be torture. He mentioned such incidents to his counsellor and her report does not, as submitted by the Applicant's adviser, support the argument that he did not speak of incidents of torture because they are "merely a part of life." Her report demonstrates that the Applicant does, in fact, recall and report such incidents but "survived these experiences by desensitising himself to torture...this desensitisation was apparent in our sessions, where he would smile while disclosing horrific experiences." The Tribunal is satisfied that there is a significant inconsistency between what the Applicant and his wife told the Tribunal regarding the period after the car accident. It is satisfied that the inconsistency arose because they were not telling the truth.' 18 The Tribunal found that the first appellant's wealth and business success were inconsistent with his account. It found it plausible that he was able to thrive because he bribed Turkish officials, but did not find it credible that those officials would not take bribes from non-Kurdish business people. It found that the first appellant's ethnic origins and religion were unrelated to his business operations and his successes and failures. It also did not accept that his car accident was in any way related to his ethnic origins, religion or imputed political opinions. It found that the accident was an accident, and that the government or its agents were not involved. It did not accept that the first appellant was subsequently interrogated and beaten or otherwise tortured for Convention reasons after the accident. It found his claim to have been prevented from approaching foreign embassies to obtain a visa not plausible and contrary to information from other sources. It was satisfied that the reason he did not leave Northern Cyprus was because he did not encounter difficulties there.

19 The Tribunal then referred to the psychologist's report as follows: 'The Tribunal notes that Ms. Stewart's report identifies that the Applicant manifests symptoms of past torture and trauma. Clearly, his car accident was traumatic. The Applicant was raised in a part of Turkey that witnessed serious human rights abuses before he left there in the mid-1980's. It is possible that he was the victim of some mistreatment, although the Tribunal does not believe his account of events surrounding his first encounter with alleged torturers in the village where his father had arranged employment for him.' 20 The Tribunal then proceeded to deal with a number of the first appellant's specific claims and to reject them. These included the claim that his brother had been killed for reasons connected with the first appellant's own ethnic origins, religion or imputed political opinion. 21 In summing up, the Tribunal said: 'The Tribunal is satisfied that the Applicant has embellished and contrived material aspects of his claims. It accepts that he was traumatized by events that happened before he left the mainland to live in Cyprus and that he endures the added trauma of being the victim of a very serious road accident. It does not accept that he has been hounded and persecuted in Cyprus for the reasons he has described and it is satisfied that he was not a target of persecution there, as he claimed.'

The federal magistrate's reasons 22 The federal magistrate rejected submissions on behalf of the appellants that the Tribunal had: not acted in good faith; not made a bona fide attempt to exercise its statutory power; and had approached its task with a predetermined view, or a closed mind, or a mind directed to deciding the claims adversely to the appellants, thereby with actual bias or bad faith amounting to jurisdictional error. Those arguments were not pursued on appeal and it is therefore unnecessary to deal further with them. The other ground which the Federal Magistrates Court rejected in the application before it was related to the psychologist's report. The appellants contended that the Tribunal failed to take account of relevant material, in that it ignored the expert opinion of the psychologist as to the first appellant's psychological state and its underlying cause, namely torture. The federal magistrate considered the psychologist's report in some detail. Her Honour found that the report: 'does go beyond being simply an opinion that the applicant was suffering from certain disorders and that those disorders were consistent with the history he gave and the symptoms he described...Based on her observation of the applicant's presentation throughout seven 90 minutes sessions Ms Stewart expressed the opinion that he had experienced torture which he survived by desensitising himself to torture. This is an expert report about the aetiology of the applicant's presentation, an assessment that the applicant experienced torture arrived at by observation and expert assessment of his presentation not based merely on the consistency of his claims or Ms Stewart's view as to his credibility or truthfulness...It is implicit in the report that Ms Stewart is of the opinion that the applicant's major depressive disorder is caused by experience of torture (despite the desensitisation apparent in presentation). This is consistent also with her assessment that it was likely that the applicant had experienced depressive episodes since the loss of his mother and his first torture experience. She does not, however, state that the depression was caused by experience of a pattern of torture and it is not a necessary inference from the report that Ms Stewart was of the opinion that the applicant's diagnosed condition was caused by a pattern of torture or by all of the torture which he claimed to have experienced.' 23 The federal magistrate was not satisfied that the Tribunal ignored or failed to have regard to the opinion. Her Honour found that the Tribunal referred to the opinion in setting out the evidence in support of the first appellant's case, and in what the Tribunal said about the report in its reasoning. Her Honour found that the Tribunal also referred to the conclusion of the report that it was likely that the first appellant had suffered symptoms of major depressive disorder since the death of his mother and his first experience of torture when he was 14, as well as that he suffered symptoms of post-traumatic stress disorder. Although her Honour took the view that the reasoning of the Tribunal may be seen as involving some illogicality, she held that this did not demonstrate reviewable error. Her Honour said at [34]: 'It is evident that the Tribunal was of the view that the symptoms recorded in the report were consistent with aspects of his claimed history which the Tribunal accepted. This is apparent from a consideration of the findings the Tribunal made in respect of the applicant's experiences, particularly his experiences in Turkey in relation to which the Tribunal accepted that the applicant was traumatised.' 24 Her Honour felt it was important that the Tribunal stated that it did not reject all of the first appellant's claims, although it had no doubt that he had embellished some aspects of his claims and had fabricated others. At [36], her Honour said: 'The Tribunal considered the opinion. It accounted for the opinion based on the incidents that it accepted as fact (or more accurately, did not regard as fabricated or embellished). It explained why it did not accept other aspects of the applicant's claimed experience. It is not suggested that just because the counsellor accepted the truthfulness of those claims the Tribunal was bound to do the same. This was a matter for the Tribunal, not a matter within the province of expert opinion.' 25 On her Honour's analysis, the Tribunal had accepted that the first appellant was traumatised by events that happened before he left the mainland to live in Northern Cyprus, and by the motor accident in which he had been involved. 26 Referring to the Tribunal's use of the psychologist's report against the applicant, to reject the submission that his reluctance to mention his experiences explained the difference between his evidence and that of the second appellant, the federal magistrate said at [41]: 'It cannot be said that the Tribunal accepted for one particular purpose the fact that the applicant had been tortured and then fell into error by failing to consider or deal with the expert opinion as an expert opinion in that respect. While not using the same language as the report the Tribunal not only accepted that it was possible that the applicant was the victim of some mistreatment in Turkey (consistent with the report identifying that the applicant manifested symptoms of past torture and mistreatment) but also that he was traumatised by events that happened before he left the mainland. It also accepted that he was, as the report suggested, traumatised by the 1998 road accident. It gave reasons for rejecting certain claims in relation to events in Turkey and the claims that he was hounded and persecuted in Cyprus. The Tribunal was of the view that circumstances in Northern Cyprus for Kurds were very different to those in Turkey. Hence acceptance that the applicant was tortured or mistreated in Turkey would not be inconsistent with its conclusions in relation to events in Cyprus.' 27 At [42], her Honour said: 'Reading the Tribunal decision fairly and as whole [sic] I am satisfied that it had regard to the opinion of the counsellor, accepted that certain events consistent with the opinion expressed in the report had occurred while rejecting others for reasons it gave. It considered and accepted the report to the extent that the underlying facts relied on to found the opinion were proved to its satisfaction. As to other aspects of the report, it had regard to the opinion, weighed it against other evidence which it accepted and formed a judgment that it accepted some claims and not others'. 28 The federal magistrate was also not satisfied that the Tribunal's treatment of the expert opinion would have constituted a jurisdictional error in failing to take into account relevant considerations or relevant material, of the kind referred to in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82]. Her Honour expressed the view that there is a distinction between failing to refer to evidence which, if accepted, might have led the Tribunal to make a different finding of fact, and a failure to address a claim or contention which, if accepted, might establish that the first appellant had a well-founded fear of persecution. The psychologist's report was a piece of information that tended to make the first appellant's account of having suffered persecution more believable. The Tribunal dealt with the elements of the first appellant's claim. In her Honour's view, it could not be said that the claimed opinion in the report was so strongly or clearly probative of the existence of a well-founded fear of persecution that it should be inferred that the Tribunal misunderstood the Convention expression 'a well-founded fear of being persecuted' in such a way that it exceeded or constructively failed to exercise its jurisdiction. The weight to be given to the opinion was a matter for the Tribunal.

The case on appeal 29 Counsel for the appellants relied on the federal magistrate's finding that the psychologist's report involved an expert opinion that the first appellant had been tortured. Counsel for the appellants contended that, by inference, the report involved evidence that the first appellant's condition was caused by multiple incidents of torture over a significant period of time. He contended that the federal magistrate was in error in stating that the Tribunal had dealt with the issue of past torture. He argued that, in fact, the Tribunal did not accept any of the first appellant's claims regarding torture and that the federal magistrate was in error in finding that the Tribunal had accepted some of the first appellant's claims of past torture. In the light of its rejection of the first appellant's claims, it is not possible to say that the Tribunal took into account the expert opinion as a relevant consideration. The finding that the first appellant had been the victim of 'some mistreatment' avoided the issue and failed to address the psychologist's report and its opinion that the first appellant's condition was based on years of torture. The federal magistrate should have held that the Tribunal had failed to treat the psychologist's report as the opinion of an expert as to the facts. The matter was not one of the weight to be given to the report, but rather of failing to treat the report as the independent expression of an expert opinion that the first appellant had experienced torture on many occasions. The federal magistrate also erred by not finding that the report was clearly probative of the existence of a well-founded fear of persecution, so that it should be inferred that the Tribunal acted under an erroneous understanding of what constitutes such a fear or failed properly to determine whether acts of persecution have occurred in the past. 30 Perhaps in the alternative, counsel for the appellants argued that the Tribunal's dealing with the psychologist's report displayed illogicality which, while not jurisdictional error in itself, was indicative of such error. The Tribunal used the report to reject an argument that the conflict of evidence between the first and second appellants was explained by the reluctance of the first appellant to speak about his experiences in detail. To accept the report to this extent, without accepting its findings, was said to be illogical.

Determination of the appeal 31 For the purposes of this appeal, I accept as correct the finding of the federal magistrate that the psychologist's report did express, by inference, a professional opinion that the first appellant experienced torture, and that this opinion was arrived at by observation and expert assessment of his presentation, not merely on the consistency of his claims or the psychologist's view as to his credibility. That finding was not the subject of challenge by the Minister by notice of contention. 32 It is also necessary to accept the federal magistrate's conclusion that the psychologist did not express an opinion, nor was it a necessary inference from her report that she accepted, that the first appellant's condition was caused by experience of a pattern of torture or by all of the torture which he claimed to have experienced. It was for the Tribunal to make its findings on those issues. Although not using the language of the first appellant, the Tribunal did find that he had suffered some of the experiences he claimed to have suffered on the Turkish mainland. The federal magistrate was correct so to find. The argument on behalf of the appellants, that the Tribunal rejected every single one of the first appellant's accounts of torture, cannot be accepted. It would be inconsistent with what the Tribunal said and would involve too close an analysis of the Tribunal's reasons. 33 It is clear that the Tribunal did not ignore the psychologist's report. As I have said, and as the federal magistrate found, the Tribunal referred to the report several times in its reasons for decision. I accept that the question of the weight to be given to the psychologist's opinion was a matter for the Tribunal itself. The Tribunal reached the conclusion that the psychologist's findings as to the first appellant's condition could be explained by reference to his experiences on the mainland and his involvement in the motor accident in 1998. The Tribunal had a rational basis for its rejection of those of the first appellant's claims which it rejected specifically. It did not display illogicality in the way in which it used the psychologist's report to reject the submission explaining the inconsistency between the evidence of the first appellant and the second appellant. It merely pointed out that the report did not support the submission made. Its use of the report did not amount to an acceptance of the psychologist's opinion that the first appellant had suffered torture. All that the Tribunal accepted was that the first appellant had been prepared to talk to the psychologist about his experiences. As a consequence, the Tribunal took the view that it could not accept that the first appellant was unwilling to talk about his experiences to the second appellant. This was a question of fact for the Tribunal. 34 The reasons for judgment of the federal magistrate are careful and thorough. I respectfully accept her Honour's analysis of the issues in the case. I regard as correct her rejection of the argument, put on behalf of the appellants, that the Tribunal failed to have regard to the psychologist's opinion. I also accept as correct her Honour's view that, even if the Tribunal had failed to take account of the expert's opinion, this would not have amounted to jurisdictional error.

Conclusion 35 For these reasons, the appeal must be dismissed. No reason was advanced, and none appears, for departing from the usual rule that costs follow the event. The appellants will therefore be ordered to pay the Minister's costs of the appeal.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Solicitor for the respondent: Blake Dawson Waldron

Migration Act 1958(Cth)ss 36, 5(1)

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