BMZ15 v Minister for Immigration

[2016] FCCA 2835

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMZ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2835

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – where applicant sought time to obtain a psychologist’s report – where Tribunal refused the request – whether the refusal was unreasonable considered.

Legislation:

Migration Act 1958 (Cth), ss.357A, 363, 416, 422B, 427.

Cases cited:

Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

SZGIZ v Minister for Immigration (2013) 212 FCR 235

Applicant: BMZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2076 of 2015

Judgment of: Judge Driver

Hearing date: 3 November 2016

Delivered at: Sydney

Delivered on: 21 November 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application filed on 24 July 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2076 of 2015

BMZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant is aggrieved that the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the Minister (delegate) not to grant him a protection visa in circumstances where he had, through his migration agent, requested a delay of some weeks to obtain a psychological report to add to an existing report.  The issue raised is whether the Tribunal’s refusal to delay its decision was unreasonable.  For the reasons which follow, the Tribunal’s decision was not unreasonable.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a Nepalese national.  On 18 December 2004, he arrived in Australia on a Sponsored Family Visitor visa.  On 21 January 2005, he made his first application for a protection visa.  On 3 September 2008, the Tribunal (differently constituted) (previous Tribunal) affirmed a decision not to grant the protection visa.  This resulted in a series of appeals that concluded, adversely to the applicant, in the High Court on 2 February 2010.  On 2 October 2012, the applicant lodged a second application for a protection visa which was ultimately found valid following SZGIZ v Minister for Immigration[1].

   [1] (2013) 212 FCR 235. Court Book (CB) 161-196, 213 [2]

4. On 17 April 2014, the delegate refused the application[2].  The applicant sought review before the Tribunal on 2 May 2014.  The Tribunal affirmed the delegate's decision on 29 June 2015[3].

   [2] CB 105-112

   [3] CB 212-222

Protection claims

1. In essence, the applicant claimed to fear harm[4]:

   a)from Nepalese security forces based upon his previous support for and sympathy with the Maoists; and

   b)from the Maoists, from whom he has defected and no longer supports.

   [4] CB 213-216

Tribunal proceedings

1. After the delegate's decision, on 22 April 2014 the applicant belatedly sought an extension of time from the delegate to provide an expert report on his “mental health issues”. The applicant stated that he would need until 13 May 2014 to obtain the report[5].

   [5] CB 113

2. On 21 October 2014, the applicant provided a statutory declaration to the Tribunal in which he reiterated his protection claims and expressed disagreement with the delegate's decision[6].  On 24 October 2014, the applicant further submitted a psychological report which referred to depression and stated that he “describes elements of Post Traumatic Stress”[7].  A letter was also provided on 25 August 2014 from the applicant's son, which asserted that the applicant was “depressed and forgetful”, and reiterated the applicant's protection claims[8].

   [6] CB 129-133

   [7] CB 135-139

   [8] CB 140-142

3. The Tribunal sent the applicant an invitation to comment on 6 November 2014. The invitation enclosed the decision of the previous Tribunal and invited comment upon several adverse credibility findings that were made. The Tribunal stated that it may agree with those findings, and made reference to s.416 of the Migration Act 1958 (Cth) (Migration Act). A response was sought by 20 November 2014[9].

   [9] CB 155-196

4. After seeking an extension to 21 November 2014, the applicant provided a further statutory declaration on that date which made submissions regarding the inconsistencies in his evidence.  The applicant submitted that he had told the truth, but due to anxiousness, fear, nervousness and depression he made insignificant mistakes in his evidence that should be disregarded[10].

   [10] CB 202-205

5. Seven months later, on 29 June 2015, the applicant sought further time to provide another report from a psychologist[11].  The request was refused by the Tribunal for reasons that it gave in a letter at CB 209 and [18] of its decision[12].  Those reasons are considered further below.

   [11] CB 207

   [12] CB 216

6. In its decision, the Tribunal had regard to the applicant's submissions as to why the Tribunal should not make adverse credibility findings consistent with those of the previous Tribunal[13].  In particular, it had regard to the applicant's submissions that there were misunderstandings in his previous evidence that were exacerbated by psychological issues.  Whilst the Tribunal considered the psychological report provided by the applicant, it observed that it had only been made after the Departmental interview and after assessment on two relatively short occasions.  After taking into account:

   a)the limited nature of the assessment;

   b)the applicant's lack of credibility; and

   c)the lack of any credible evidence supporting his broader claims regarding involvement with the Maoists;

   [13] [45]-[48]

7. The Tribunal rejected the applicant's core factual claims and affirmed the delegate's decision[14].

   [14] [47]-[54]

The present proceedings

1. The applicant relies upon his judicial review application filed on 24 July 2015.  There are two grounds in that application.  Only the second ground in the application was pressed which is in the following terms:

   2. The Tribunal acted unreasonably in refusing to give time to provide further documents.

   Particulars

   The Applicant’s representative requested further time to provide Psychologist report.  The Tribunal unreasonably refused the request on the basis that there is no need for a further psychologist report because the applicant has previously provided evidence regarding a psychological assessment from Dr Amanda Gordon, Clinical psychologist.  (RRT decision Record paragraph 18)  However, the Tribunal noted in its decision that the psychological assessment undertaken by Dr Gordon was a limited assessment.  (RRT decision Record paragraph 47)  In that situation, it is reasonable given the circumstances to give time to provide a further psychological assessment.

2. The only evidence I have before me is the court book filed on 28 September 2015. 

3. Both the applicant and the Minister made pre-hearing submissions as well as oral submissions at the trial on 3 November 2016.

Consideration

1. The Tribunal at [18][15] of its decision recounts the circumstances of the request put to it the day before the decision was made:

   On the date of decision, 26 June 2015, (sic) the Tribunal received a submission recording that the applicant is seeing a psychologist, Ms Payal Parmer of Pacific Medical Centre, Blacktown, and a request that the decision be delayed for 3 to 4 weeks.  The Tribunal has considered this request but finds there was no explanation as to [why] a further psychologist report has been sought, the basis for the second report or a firm date to provide the report.  The Tribunal also finds that the applicant has already provided evidence regarding a psychological assessment (noted elsewhere) and due to this, and concerns regarding the applicant’s credibility (noted elsewhere), the Tribunal has made the decision to proceed to final decision.

   [15] CB 216

2. Apart from the date of the decision, that description is consistent with what appears in the court book.  On Monday, 29 June 2015 at 12.57pm the applicant’s agent sent an email to the Tribunal stating relevantly:

   The applicant request us to inform the RRT that he is seeing a psychologist Ms Payal Parmer of Pacific Medical Centre, Blacktown and will provide a report from the psychologist.  He advised us that the Psychologist will provide a report in 3-4 weeks and request the Tribunal not to make any decision until he provides the report from his psychologist. (error in original)

3. The Tribunal responded on the same day in the following terms[16]:

   [16] CB 209

   The presiding Member has advised that after consideration, delay in decision is not granted on the basis of:

   1) the Review Applicant has already provided a psychologist report

   2) no explanation was given as to why a second report was required

   3) no firm time limit was requested, 3-4 weeks is a vague request

   4) the matter was finalised today.

4. The applicant takes issue in his submissions with each of those explanations. 

The discretion to adjourn

1. I accept the submissions put by the parties concerning the relevant legal principles.

2. The discretion to adjourn a hearing of a review under Part 7 of the Migration Act is found in s.427(1)(b), which is identical to s.363(1)(b). Concerning that provision, the High Court in Minister for Immigration v Li[17] said at [63]:

   Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.[18]

   [17] [2013] HCA 18; (2013) 249 CLR 332

   [18] Footnote omitted. 357A(3) is identical to 422B(3) in relation to Part 7

3. Further at [76] their Honours said:

   As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. [footnote omitted]

4. In the present case, and consistently with the Minister’s submissions I find as follows.  The applicant had a long history of seeking protection in Australia.  That history included four Tribunal hearings and a previous determination that the applicant was not a credible witness based upon various issues taken with his evidence several years previously.  The applicant had previously sought to explain the deficiencies and inconsistencies in his evidence through psychological evidence.  His most recent request to submit a psychological report was made more than seven months after the most recent Tribunal hearing, and several years after the hearings in which the putative inconsistencies had been identified. 

5. I find that the Tribunal’s decision to refuse the adjournment request was not unreasonable.  First, it was not clear how the proposed additional psychological report would add to the existing psychological report.  Secondly, no explanation as to why a second report had been sought was included in the request.  It may have been that the report was intended to address credibility issues arising at the Tribunal hearing, but those had already been addressed in a post hearing submission made on behalf of the applicant.  Seven months had passed since those submissions had been provided and the timing of the request was curious.  It was not apparent why an additional three to four weeks was required in circumstances where the applicant had already had seven months after his final submissions in order to provide an additional psychological assessment.

6. The statement that the matter had been finalised needs to be viewed in its context.  It is uncertain whether or not the decision had been finalised at the time the Tribunal responded to the request but probable that it was.  The decision bears the same date as the response and [18] of the decision would have been added following the Tribunal’s consideration of the request.  The timing should be seen in its context because 30 June 2015 was the last day of operations of the former Refugee Review Tribunal.  Some administrative inconvenience may have attended a delay past 1 July when the Tribunal’s functions transferred to the Administrative Appeals Tribunal.  That in itself would not be a sufficient justification to refuse the request and it may be that the statement that the decision had been finalised was simply a statement of fact rather than a reason for refusing the request. 

7. I conclude that the Tribunal’s explanation for its refusal was intelligible and involved an exercise of discretion on which reasonable minds may differ.  The decision was not unreasonable.

Conclusion

1. The applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 21 November 2016