Abbouchi, Ahmad Abdallah v Minister for Immigration and Multicultural Affairs

[1998] FCA 87

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG110 of 1997

BETWEEN:	AHMAD ABDALLAH ABBOUCHI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	4 FEBRUARY 1998
PLACE:	MELBOURNE

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application for review of a decision of the Refugee Review Tribunal rejecting a claim by Ahmad Abdallah Abbouchi for recognition of refugee status and the grant to him of a protection visa. The Tribunal member disbelieved much of the evidence given by Mr Abbouchi. The Tribunal's factual findings are not reviewable in this Court. The decision is vulnerable to review only if there was a failure to comply with the requirements of s 420 of the Migration Act 1958 or a matter arises under s 476 of the Act.

Only one ground has been argued in support of the application for a review, although it is put in two forms.  The submission is that the Tribunal member should have considered whether to arrange for a psychiatric or psychological examination of the applicant before reaching a conclusion about his application; or, to put the matter in its alternative form, should have required such an examination.

Mr Howlett took me to authorities in which the Court pointed out the need for the Tribunal,  or other decision-maker under the Migration Act, to give consideration to the obtaining of material additional to that placed before it by an applicant.  There are numerous authorities on the point.  It is sufficient to cite the two mentioned by Mr Howlett in the course of argument:  Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 and Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 290.

I have no difficulty with the principle.  I have myself applied it on several occasions.  The obligation for a decision-maker to consider whether to obtain additional information is at its most acute when the applicant is not legally represented.  That was this case.  The applicant, who was at the time aged 27 years, was accompanied to the hearing by his mother, who gave some sworn evidence, and his brother-in-law who did not.  So far as it appears, the applicant did not have the benefit of any professional advice concerning the presentation of his case to the Tribunal.

Mr Howlett drew attention to s 427 of the Migration Act.  This provides, amongst other things, that, for the purpose of the review of a decision, the Tribunal may:

“(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.”

There is no doubt that the Tribunal had power to request a psychiatric examination of Mr Abbouchi, if this seemed desirable.  In my opinion there is no doubt that the Tribunal member was under a positive obligation to give consideration whether to exercise that power, if there was any reason for her, acting reasonably and in accordance with the dictates of  substantial justice, to suspect that the presentation of the applicant's case had been adversely affected by a psychological or psychiatric difficulty.

As I say, there is no problem with the principles upon which Mr Howlett relies, insofar as I am concerned.  The difficulty is the factual basis underpinning his case.  Was there any reason for the Tribunal member, acting reasonably, to believe the presentation of Mr Abbouchi's case might have been adversely affected by a psychological or psychiatric problem?  In respect of that matter Mr Howlett relies on a number of matters. 

First, towards the end of the hearing, the Tribunal member asked the applicant's mother, through the person who interpreted for both the applicant and his mother, the following question:  “Does your son have a psychiatric or a mental problem that you know of?”The transcript reveals the following answer from the mother:  “No, he does not suffer from a psychiatric condition but because of the things that he was, that happened to him, when he remembers, that he gets, you know, nervous.”  The transcript reveals the Tribunal member then asked the applicant whether there was anything additional that he wanted to tell her and he replied:  “There isn't anything to add but for this application, if you refuse it I am prepared to poison myself and not be forced to go to Lebanon”.

Mr Howlett argues that the fact that the Tribunal member made an inquiry of the mother as to whether she knew of a psychiatric or a mental problem is an indication the Tribunal member was concerned about this possibility.  He then argues that, if she was concerned, she should not have allowed her concern to be abated by the mother’s reply.  Mr Howlett correctly says there is no evidence, or reason to believe, the mother had any training in psychiatric matters. 

I do not think the fact that the Tribunal member asked the question is an indication that she had a positive belief, or even concern, about the applicant's mental condition.  The applicant had not acquitted himself well in giving evidence.  As the Tribunal member subsequently pointed out in her reasons, there were numerous inconsistencies in what he said, causing her not to believe much of it.  It is conceivable that, in that situation, she wished to check there was no suggestion of a psychiatric or mental problem and she thought it sensible to do this by asking the applicant's mother.  I do not think the desire to check means the Tribunal member necessarily had a belief that there was a problem.  It might simply have been prudent to negative the possibility. Nor do I agree with Mr Howlett that the reassurance offered by the mother was of no value.  It is true the mother was not an expert.  If there was a psychiatric or mental problem, she might not have been able to put a name to it or to say anything about its prognosis.  But a woman who had lived with her 27 year old son, apparently almost continuously for most of his life, would have an idea whether he suffered a problem, even if she could not name it or speak of it with expertise.  As the answer I have quoted indicates, she categorically said her son did not suffer from a psychiatric condition.

The exchange is consistent with the Tribunal member simply wishing to negative the existence of any problem; she thought the mother was able to assist her in that regard and therefore asked the question.  I do not think the exchange suggests the Tribunal member believed, or had cause to believe, that there was indeed a problem.  Nothing had been put before the Tribunal member to indicate the existence of a problem.

The reference by the applicant to poisoning himself is not, in my view, something that ought to have caused the Tribunal member to fear the existence of a psychiatric problem.  It must be common for applicants for refugee status to make threats about what they might do to themselves, or perhaps somebody else, if their application is refused.  That is the sort of threat most people would ascribe to the stress of the moment.

The other matters referred to by Mr Howlett were occasions when the interpreter indicated a problem about interpretation.  The first of those occasions was in relation to evidence given by the applicant about being taken into detention by people who claimed to be officers of the  Syrian intelligence force.  The Tribunal member asked some questions about what they did.  Apparently there was some delay in answering, because she then put supplementary questions.  The transcript then records this:

“THE INTERPRETER:  See, you -  he is addressing me here - I’m saying a couple of words and then you are interrupting me and not letting me have a chance to continue”.

The Tribunal member then asked the interpreter to continue.  He gave an account of what happened, apparently interpreting what had been said to him in Arabic by the applicant.

As I read this transcript, what happened on this occasion is that the interpreter was getting the story from the witness and the Tribunal member cut across him with a further question.  This interruption caused confusion.  I see nothing to indicate the problem was caused by the applicant; still less, that it was a product of any psychological or psychiatric problem. 

The second reference in the transcript occurred when the applicant was speaking about obtaining his passport.  The Tribunal member asked a question and the transcript reveals the interpreter responded in this way:

“THE INTERPRETER:   I find it difficult to - - - 

MS BORSODY [the Tribunal member]:   Yes.  I would ask you to interpret even if what is being said does not appear to you to make any sense. 

THE INTERPRETER:   I am trying my best, of course but - - -

MS BORSODY:   Yes.  You told me that you were talking to your brother about getting a passport issued and the Syrians came and arrested you then.  Is that correct? 

THE INTERPRETER:   Correct.”  

It is difficult to know what happened here.  It seems there was some hesitancy by the interpreter in passing on the answer, perhaps because he did not understand what the witness had said or perhaps he understood it but did not understand the sense of it.  Certainly there was nothing in that exchange that would have led any hearer or observer to think there might be a psychiatric problem.

The fact that the applicant was not legally represented is important. It provides a reason why no weight should be put on the fact that the applicant did not request a psychiatric examination. I must assume the applicant was not aware of the terms of s 427 of the Act or of the Tribunal’s obligation to make reasonable inquiries, where it appears this is necessary for proper resolution of a claim.

Accordingly, I place no weight on the fact that no request was made.  But when I ask myself whether there is anything in the record of the matter, including what was put before the Tribunal and what happened at the time of the hearing, that should reasonably have alerted the Tribunal member to the need for a psychiatric examination, the answer I reach is that there was nothing. 

I should add that, in her reasons for decision, the Tribunal member described the applicant as a person who is neither credible nor coherent, with a story that is not plausible.  Mr Howlett seized on the word "coherent" as indicating the Tribunal member realised the story was not being well presented.  That may be.  But there is a world of difference between incoherence and the existence of a psychological or a psychiatric problem. 

Mr Howlett put everything that can be said in support of the proposition which he urges; both legs of it.  His problem is there is no factual material to justify the conclusion he asks the Court to reach.  There is no merit in the application for a review.  The application should be dismissed.

[An application was made for costs.]

I order the application be dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             4 February 1998

Solicitor for the Applicant:	M Howlett of Victoria Legal Aid
Counsel for the Respondent:	C Gunst QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 February 1998