DZAAK v Minister for Immigration
[2012] FMCA 1027
•13 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1027 |
| MIGRATION – Judicial review – independent merits review – psychological report – whether error of law in failing to place weight on psychological report – whether denial of procedural fairness in dealing with psychological report – whether evidence of tampering with covering email for fatwa issued against applicant. |
| EVIDENCE – Admissibility of psychological report and witness qualifications. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth) Evidence Act 1995 (Cth), s.56(2) Migration Act1958 (Cth), ss.5, 36(2), 476(1) |
| Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 SBBJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 761 Stead v State Government Insurance Commission (1986) 161 CLR 141 Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 1105 |
| Applicant: | DZAAK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 16 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 18 July 2011 |
| Date of Last Submission: | 15 August 2011 |
| Delivered at: | Perth |
| Delivered on: | 13 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Karapanagiotidis |
| Solicitors for the Applicant: | NT Legal Aid Commission |
| Counsel for the Respondents: | Mr P D’Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
THE COURT ORDERS
That the applicant’s application for an extension of time in which to file the affidavit of Kathryn Parle affirmed 4 July 2011 be dismissed.
The Court declares that, in any event, the affidavit of Kathryn Parle affirmed 4 July 2011 is not admissible in evidence.
The Court further orders that the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 16 of 2011
| DZAAK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is an offshore entry person as defined in s.5 of the Migration Act 1958 (Cth).[1] The applicant seeks judicial review under s.476 of the Migration Act in respect of a recommendation by an independent merits reviewer,[2] that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[3]
[1] “Migration Act”.
[2] “Second IMR Recommendation” (at Court Book (“CB”) 141-160) and “Second IMR” respectively.
[3] Collectively “the Convention”.
Orders sought
The applicant seeks the following final orders:
1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.
2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.
3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;
4.Any other orders which the Court thinks fit;
5.Costs.
Jurisdiction
The application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the Second IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[4]
[4] Migration Act1958 (Cth), s.476(1) (“Migration Act”); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM.
The grounds of the application
The grounds of the application are as follows:
1.The reviewer committed an error of law in placing no weight on the psychological report and/or failed to accord the applicant procedural fairness in its treatment of the psychological report
Particulars
(a)The reviewer had before it a psychological report which provided support for the applicants repeated claim at hearing that discrepancies in his evidence were due to his previous poor psychological condition.
(b)The report also offered credibility for some of the applicants claims.
(c)The reviewer did not reject any of the matters, findings, diagnosis that were canvassed in the report
(d)The reviewer gave the report no weight because of its finding that the writer was not in a “position to assess his psychological condition at the time of his earlier interviews.”
(e)The reviewer erred in law in rejecting the content, findings and conclusions of the report on a basis that was unfounded and unsubstantiated.
(f)In addition, or in the alternative, the reviewer failed to accord the applicant procedural fairness in failing to raise this matter with the applicant and/or extending to him an opportunity to submit and/or call further evidence.
2.There was no evidence to support the reviewers finding that the date stamp of the covering email attaching the fatwa had been tampered
Particulars
(a)The applicant relied upon a fatwa that was issued calling for his death.
(b)The reviewer made a finding that the “the covering email provided by his adviser which had purportedly attached the fatwa looked like it had been tampered, particularly the date stamp.’
(c)This was a critical finding by the reviewer and formed part of its reasons of rejecting the fatwa that the applicant relied upon.
(d)There was no evidence to substantiate this finding.
Background
The applicant is a citizen of Iraq.[5]
[5] CB 3 and 5.
The applicant arrived at Christmas Island on 16 February 2010 as an “irregular maritime arrival”.[6]
[6] CB 26.
On 23 February 2010 the applicant participated in an entry interview.[7]
[7] CB 3-32.
On 28 April 2011 the applicant participated in a Refugee Status Assessment[8] interview.
[8] “RSA”.
On 16 June 2010 the RSA officer found that the applicant did not meet the definition of a refugee as set out in the Convention.[9]
[9] CB 79-88.
On 21 September 2010 the applicant took part in an interview with an independent merits reviewer.[10]
[10] “First IMR”; CB 145-147.
On 22 October 2010 the First IMR found that the applicant did not meet the definition of a refugee as set out in the Convention.[11]
[11] “First IMR Recommendation”; Supplementary Court Book (“SCB”) 1-9.
Following the High Court ruling in Plaintiff M61 the applicant’s case was reconsidered by the Second IMR.
On 13 April 2011 the Second IMR found that the applicant did not meet the definition of a refugee as set out in the Convention,[12] and recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[13]
[12] CB 141 and 159.
[13] CB 141 and 160.
The applicant’s claims
The applicant’s claims can be summarised as follows:
a)the applicant was born in Wasit, Iraq in 1985 and was an Iraqi citizen of Arab ethnicity and Sunni religion;[14]
b)the applicant’s mother was a prostitute who was murdered on 5 November 2009, in the street in the Shia area where they lived by unknown persons, whom the applicant believed were the Shia militias;[15]
c)a week after his mother was murdered, the applicant was approached in a market by three unidentified men with guns, from whom he escaped, and who he believed were from the same militia group who had killed his mother;[16]
d)the authorities could not protect the applicant because his mother was a prostitute;[17]
e)after the applicant left Iraq, a fatwa calling for his death was issued;[18] and
f)the applicant fears that if he returns to Iraq he will be killed by Shia extremists because:
i)he is Sunni;
ii)his mother was a prostitute; and
iii)he is regarded as an infidel for having helped her.[19]
[14] CB 3, 6 and 143.
[15] CB 11 and 143.
[16] CB 11 and 143.
[17] CB 104.
[18] CB 145-146.
[19] CB 104 and 154-155.
The applicant also submitted that persecution was faced on the grounds of his Sunni religion and membership of a particular social group, namely, the son of a prostitute.[20]
[20] CB 104.
Second IMR Recommendation findings
The Second IMR Recommendation findings relevant to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention, were as follows:
a)the Second IMR accepted that the applicant was a citizen of Iraq from Baghdad, an Arab by ethnicity and a Sunni Muslim by religion;[21]
[21] CB 156 at para.71.
b)the Second IMR found that the applicant was not “a reliable, credible or truthful witness”,[22] and based this finding on the following reasons:
[22] CB 156 at para.74.
i)the applicant gave inconsistent evidence about his mother’s work as a prostitute. At the First IMR interview, and in post hearing submissions, the applicant stated that his mother hadn’t told him about her work. At the Second IMR interview the applicant stated that he had asked his mother, and she had confirmed that she was a prostitute, and they had discussed the matter;[23]
[23] CB 156-157 at para.75.
ii)new claims were introduced at the Second IMR interview. The applicant stated that from 2006 his mother had been paying protection money to a man (a senior official of the Shia militia) and this is what ensured their safety as Sunnis living in a Shia area, and that the reason she was killed was that she could not pay the protection fee of $1000;[24] and
[24] CB157 at para.76.
iii)there were further issues about which the applicant had provided inconsistent evidence over the various hearings, namely:
(A)the sort of guns the men who allegedly pursued him carried;
(B)whether they had called him by his name;
(C)whether he had inherited land from his mother or father; and
(D)his failure to mention that the neighbours let him know that his mother’s body was moved from the street to the hospital.[25]
[25] CB157 at para.79.
c)the Second IMR found that the applicant introduced new claims at the interview, which the applicant explained away because of psychological issues. The Second IMR referred to a counsellor’s report, which touched on the applicant’s asserted inability to recall his claims. Relevantly, the Second IMR said:
…However, the [counsellor’s] report indicated that the claimant had only met with the counsellor on three unspecified occasions since February 2011 - 10 months after his RSA interview and 3 months after the previous IMR interview. In view of the fact that the counsellor had not met the claimant at the time of his earlier interviews, I note the improvement she observed in the claimant since February 2011, but do not accept that she is in a position to assess his psychological condition at the time of his earlier interviews and do not give weight to this report.[26]
[26] CB 157 at para.78.
d)the Second IMR did not accept that the identified problems could be explained by reference to psychological issues.[27] The Second IMR found that the applicant changed his story over time. The Second IMR was not satisfied that:
[27] CB 158 at para.80.
i)the applicant’s mother:
(A)worked as a prostitute;
(B) paid protection money; or
(C) was killed because she was a prostitute, or
ii)the applicant was pursued in a market by armed men who wanted to kill him, a week after the applicant’s mother’s death;[28]
e)as to the fatwa, the Second IMR said:
I have considered the fatwa (death order) which the claimant said he received in March 2010 and provided at the previous IMR interview but, surprisingly, failed to mention at interview with me. I consider his response that he failed to do so because he was not asked about it disingenuous in light of the seriousness of such a document, if authentic. I note that the claimant said he did not think the fatwa had any bearing on his case at the RSA stage, but might be useful at the review stage. However, I find it inconceivable that, if the document was genuine, he would not have raised it at his first RSA interview in April 2010 or drawn it to the attention of his adviser or DIAC before September 2010 and I made this clear to him at interview.
My doubts about the veracity of the fatwa are compounded by the purported covering email which the claimant provided to demonstrate that he received it in March 2010, whose date stamp appeared to have been tampered with. Curiously, when I asked how this photograph came to be on the fatwa, the claimant responded "what photograph?”, then suggested it had been taken at school when he was 13 or 14 years while his face appeared to be much older. In view of the above, I do not accept that the fatwa was genuine, but was fabricated after the claimant received a negative RSA as, by his own words, he thought it would be useful at the review stage.
f)the Second IMR was not satisfied that the claimant was persecuted because of his religion as a Sunni Muslim.[30]
Ground 1
[28] CB 158 at para.81.
[30] CB 159 at para.89.
Applicant’s submissions
The applicant made the following submissions in support of ground 1:
a)at hearing, the applicant was questioned extensively as to inconsistencies and new recent claims advanced. The Second IMR Recommendation records that:
The claimant insisted that he was now telling the truth, whereas at the repeated that he was so upset and stressed that the matter had affected him psychologically and emotionally, that he could not talk about it because he was ashamed but now that he had got help from a psychologist, he was feeling much better.[31]
[31] CB 149 at para.34. Transcribed from Second IMR Recommendation without amendment.
b)at hearing, the Second IMR stated that she would note this but “in the absence of medical reports, when someone told totally contradictory stories, it raised doubts as to their veracity”;[32]
[32] CB 150 at para.35.
c)the applicant was questioned as to why he had not mentioned previously that his neighbours had told him that his mother’s dead body had been moved to a hospital, and “He responded that he was in a bad psychological state of mind, unable to concentrate or have consistency in his story.”[33] The applicant repeated that at the First IMR interview he was very stressed and in a bad state. The Second IMR again remarked upon the absence of medical evidence;[34]
[33] CB 150 at para.40.
[34] CB 150-152 at para.41.
d)the applicant repeated throughout the Second IMR interview that he was not feeling well at the First IMR interview, and that he felt much more able to tell his story. When asked by the Second IMR why he told the First IMR that he never talked about what his mother did with his mother,[35] the applicant stated:
[35] Transcript of Independent Merits Review interview, Darwin, 18 March 2011 (“Second IMR Interview Transcript”), being Annexure A to the affidavit of Alison Hanley, sworn 4 July 2011, at p.18.
Like I said before, because I had some psychological problem and psychological effect on me and I couldn’t clarify my story and case. But now, because I had help, thank God, I feel much better now, because of the help that I received from the health clinic here. They helped me and now I can talk about it and make it clear to you.[36]
[36] Second IMR Interview Transcript at p.18.
e)the applicant further stated:
… because this matter had affected me very much psychologically and emotionally and I couldn’t speak about it because I was ashamed. But after I have been here for one year and I received help from the psychologist here, I feel like how I am much better because I have seen respect from people that dealt with me in this place.[37]
[37] Second IMR Interview Transcript at p.19.
f)the applicant repeatedly claimed throughout the hearing that he was previously in a bad psychological state, confused and unable to concentrate. When the matter was raised by the applicant it was invariably met by the Second IMR’s comment that there was no medical or psychological evidence before her;[38]
[38] Second IMR Interview Transcript at pp. 24, 27 and 32.
g)after the Second IMR interview the applicant submitted a counsellor’s report,[39] and an outline of the counsellor’s qualifications;[40]
[39] CB 137-138 (“Counsellor’s Report”).
[40] CB 139.
h)the Counsellor’s Report was attached to a covering letter by the applicant’s advisers which stated:
We respectfully submit that the psychologists report adds weight to our clients claims that at previous interviews he was not mentally able to relate and recall clearly the events leading up to his departure from Iraq, in particular those surrounding his mother’s death.[41]
[41] CB 135.
i)the author of the Counsellor’s Report, Ms Parle, is a qualified Counsellor, registered as a Clinical Member of the Counsellor’s and Psychotherapists Association in New South Wales. Ms Parle was employed as a Torture and Trauma Counsellor and Advocate, with Melaleuca Refugee Centre;[42]
[42] CB 139.
j)in the Counsellor’s Report Ms Parle states:
I am writing this report to clarify why [the applicant] may discuss now things which he previously did not reveal.[43]
[43] CB 137.
k)Ms Parle outlined that she had seen the applicant on three occasions since February 2011. Ms Parle diagnosed that the applicant suffered symptoms consistent with traumatic stress and depression. She reported that “feelings about his mother [were] deeply conflicted”; “he displayed significant distress and avoidance of the trauma when discussing his relationship with her as he appears to experience a complex pattern of grief.” She noted “memory and concentration problems” and that “fear, shame and isolation are the attitudes he carries with him, causing complex psychological conditioning and deep unhappiness.” She referred to the applicant’s suicidal thoughts, hopelessness and helplessness, “lethargy, sleep disturbances, minimal appetite and persistent worry about his situation.”[44]
[44] CB 137-138.
l)in the Counsellor’s Report, Ms Parle concluded that:
It is my professional opinion that in our therapeutic work together, [the applicant] has become increasingly at ease discussing his history. Due to the guided exposure therapy he is more able to regulate his emotional state when discussing his past which improves his ability to recall and explain himself coherently.[45]
[45] CB 138.
m)the Second IMR made reference to the Counsellor’s Report and gave it no weight. The Second IMR made no adverse comments concerning the author of the Counsellor’s Report and did not express any criticism of its content. Instead, the basis upon which the Second IMR gave the Counsellor’s Report no weight was stated as follows:
In view of the fact that the counsellor had not met the claimant at the time of his earlier interviews, I note the improvement she observed in the claimant since February 2011, but do not accept that she is in a position to assess his psychological condition at the time of his earlier interviews and do not give weight to the report.[46]
[46] CB 157 at para.78.
n)the Second IMR found that the inconsistencies in the applicant’s evidence were as a result of the applicant changing his story to “accommodate some of the issues raised by the [First] IMR in his recommendation and later attributed these changes to his psychological condition”.[47] This was the initial opinion of the Second IMR, before receiving the Counsellor’s Report. At the Second IMR interview, the IMR stated:
[47] CB 158 at para.81.
… an alternative way to interpret what has happened is that you have been given a negative decision and you’ve looked at the issues that people raised and you’ve changed the story on those points and now you’re attributing that to your previous psychological condition. This is an equally valid interpretation of what you’re doing.[48]
[48] Second IMR Interview Transcript at p.24.
o)the Counsellor’s Report was relevant material of some substance which the Second IMR was required to take into account.[49] The Second IMR failed to give proper consideration to the Counsellor’s Report;
[49] Citing SZKHD v Minister for Immigration & Citizenship [2008] FCA 112 at para.27 per Collier J.
p)the Counsellor’s Report constituted evidence that was capable of explaining away, or putting aside, the inconsistencies that the Second IMR had found in the applicant’s evidence;
q)the Second IMR rejected the Counsellor’s Report on the unfounded and unsubstantiated basis that effectively the report was not relevant as the writer was not “in a position to assess [the applicant’s] psychological condition at the time of his earlier interviews.” The Second IMR had no foundation upon which to base a conclusion that the Counsellor’s Report had no relevance. The unwarranted assumption of the Second IMR leading it to disregard the evidence, constituted a failure by the Second IMR to duly consider the question raised by the material;[50]
[50] Citing WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437; Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 at para.11 per Wilcox, French and Finkelstein JJ (“VOAO”).
r)the Counsellor’s Report was of an expert nature and its purpose was directly focused upon “why [the applicant] may discuss now things which he previously did not reveal.”[51] Relevantly, it noted that, through counselling, the applicant’s ability to communicate had improved markedly;
[51] CB 137.
s)the basis upon which the Counsellor’s Report was essentially rejected involved an error of law and demonstrates that the Second IMR misconstrued her task. Misconception of a public duty and a professed performance of it based on that misconception “amounts in law to no performance”;[52]
[52] Citing SZIEW v Minister for Immigration & Citizenship (2008) 101 ALD 295 at 299 per Madgwick J; [2008] FCA 522 at para.20 per Madgwick J.
t)the Counsellor’s Report and its relevance, should also be seen in light of:
i)the applicant’s own evidence that he was unwell at the previous hearings;
ii)the notation in the First IMR Recommendation which records:
at interview [the applicant] said that he was “having difficulty in explaining his case and giving details about what his problem is”[53]
[53] SCB 5 at para.6.
and the Second IMR’s concession that, while the applicant may not have been crying throughout the entire last interview, the hearing had to be adjourned at one point because he was upset and he was also upset at another stage;[54]
[54] CB 149 at para.34.
u)the Counsellor’s Report was unlawfully rejected. If properly considered, it may have forced re-examination of the applicant’s claims and his credit. There was no assessment of the report and, its important findings, at all; and
v)this is not a case where the applicant contends the Second IMR was required to seek a further medical opinion.[55] It is also to be distinguished from those cases where complaints have been made as to the weight decision-makers have accorded to medical opinions after some discussion or consideration;[56]
[55] Citing Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1.
[56] Citing SZORG v Minister for Immigration & Citizenship [2011] FCA 647.
w)the Second IMR failed to accord to the applicant common law procedural fairness in the way it dealt with the Counsellor’s Report, or by failing to extend to the applicant the opportunity to respond to its rejection of the report;
x)in Khanam v Minister for Immigration & Citizenship & Anor[57] the Federal Court stated:
Procedural fairness requires the tribunal to give real consideration to the claim of the visa Applicant and the merits of his case ... failure to do so constitutes a denial of natural justice – and a jurisdictional defect infecting the decision of the tribunal ... [58]
y)natural justice is ultimately a question of fairness:[59] what is fair depends on the circumstances of the particular case;
z)in the circumstances of this case, the Second IMR’s failure to raise this matter with the applicant, and to allow him an opportunity to respond further, constituted a denial of procedural fairness;
aa)the natural justice hearing rule requires that, where a person’s interests will be affected by a decision, they will be given a fair hearing. A basic principle relevant to this is that a person should have a reasonable opportunity to present their case and to meet the case put against them;[60]
bb)the issue concerning the applicant’s psychological condition and his presentation was a critical matter in this particular case. This is borne out by the many, repeated references to it during the hearing and the exchanges between the applicant and the Second IMR; and
cc)had such an opportunity been provided then the applicant may have sought a further opinion from Ms Parle outlining in more detail the basis for her opinion.
[57] Citing (2009) 111 ALD 42; [2009] FCA 966 (”Khanam”).
[58] Citing Khanam ALD at 431-436 per Collier J; FCA at para.30 per Collier J.
[59] Citing Kioa v West (1985) 159 CLR 550.
[60] Citing Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22.
Minister’s submissions
The Minister submitted that ground 1 should be rejected because:
a)ground 1 amounts to a complaint about the assessment of weight which the Second IMR placed on the Counsellor’s Report. Patently, the weight to be accorded to the Counsellor’s Report was a matter for the Second IMR as a part of her fact finding function,[61] and the Court cannot substitute its own view of the material, even if it had a different view from that reached by the Second IMR;[62]
b)the Second IMR did not give weight to the report because, essentially, the counsellor had no involvement with the applicant at the relevant time. That being the case, the Second IMR was not prepared to accept that the counsellor was in a position to express a view as to the applicant’s state of mind before the RSA Officer or the First IMR. Reasonable minds may differ as to the adequacy of the basis for placing no weight on the report. In the end, however, the finding which the Second IMR made was open to her and should remain undisturbed; and
c)the applicant also argues that the Second IMR should have, as a matter of procedural fairness, raised with the applicant the weight she proposed to give to the report. Acknowledging that the procedural fairness is a flexible concept, the circumstances of the present case did not oblige the Second IMR to do this. To the contrary, it is permissible, in certain circumstances, for a decision-maker to reject corroborative material simply by reason of very strong adverse credibility findings.[63] There was no requirement to raise with the applicant the weight the Second IMR proposed to place on the report.
Ground 2
[61] Citing NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ (in the context of the Tribunal’s reliance on country information) (“NAHI”).
[62] Citing NAHI at para.13 per Gray, Tamberlin and Lander JJ.
[63] Citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30; Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 (“SZNSP”). See also SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (in terms of the Tribunal being under no obligation to give a “running commentary'” of the applicant’s evidence) (“SZBEL”).
Applicant’s submissions
The applicant made the following submissions in support of ground 2:
a)the applicant relied upon a fatwa that had been issued against him on 5 February 2010. The translation of the fatwa appears in the Second IMR Recommendation in the following terms:
To the dirty coward Nassibi (infidel). You have not obeyed us and not adhered by our orders. Therefore, the religious court has decided to deal with these infidels that are Sunnis and do not follow Shiite religion with this:
1) All people working with us give this photo for all to see
2) order to kill this infidel wherever found
3) our people will find and kill you wherever you are and your fate will be like your mother’s fate
4) everyone who protects this infidel will be looked at by the religious court as someone not following religion and his fate will be death.
This is a warning from the Sharia court signed by the organisation of death groups
05.02.2010.[64]
[64] CB 145-146 at para.16.
b)at hearing the applicant told the Second IMR that
… his friend told him about the fatwa when he called him in March 2010 to ask whether there was anything new in his case and he asked him to send it to him because he thought it might be helpful[65]
[65] CB 154 at para.58.
c)the Second IMR raised a number of concerns with the applicant about the fatwa. The Second IMR put to the applicant that:
“the covering email provided by his adviser which had purportedly attached the fatwa looked like it had been tampered, particularly the date stamp. It was also a forwarded email, which did not prove that he actually received it in March”[66]
[66] CB 154 at para.61.
d)as to its findings with respect to the fatwa, the Second IMR stated:
I have considered the fatwa (death order) which the claimant said he received in March 2010 and provided at the previous IMR interview but, surprisingly, failed to mention at interview with me. I consider his response that he failed to do so because he was not asked about it disingenuous in light of the seriousness of such a document, if authentic. I note that the claimant said he did not think the fatwa had any bearing on his case at the RSA stage, but might be useful at the review stage. However, I find it inconceivable that, if the document was genuine, he would not have raised it at his first RSA interview in April 2010 or drawn it to the attention of his adviser or DIA before September 2010 and I made this clear to him at interview.
My doubts about the veracity of the fatwa are compounded by the purported covering email which the claimant provided to demonstrate that he received it in March 2010, whose date stamp appeared to have been tampered with. Curiously, when I asked how his photograph came to be on the fatwa, the claimant responded 'what photograph?' then suggested it had been taken at school when he was 13 or 14 years while his face appeared to much older. In view of the above, I do not accept that the fatwa was genuine, but was fabricated after the claimant received a negative RSA as, by his own words, he thought it would be useful at the review stage.[67]
e)there were a number of reasons for the rejection of the fatwa and one of the critical reasons was a finding, concerning an email allegedly sent to the applicant, that the “date stamp appeared to have been tampered with”. At hearing, the Second IMR stated:
I know that your agent has provided a covering email to us and I would suggest that that was tampered with, because “Mondays”, comma – this looks to me like someone altered the document because there’s no real proof. This is a forwarded thing. So that doesn’t actually prove that you got it in March.[68]
f)the finding as to alleged tampering was a serious one and compounded the Second IMR’s conclusion that the fatwa was not genuine;
g)on the evidence before it, it was not open to the Second IMR to make such a finding.[69] There was no expert opinion as to whether the email had been tampered with and there was nothing on the face of the email to support the finding; and
h)had the Second IMR accepted the email as authentic then it may have caused the Second IMR to take a different view of the applicant’s explanation concerning his delay in providing this email to the Department.
[67] CB 159 at paras.87-88.
[68] Second IMR Interview Transcript at p.41.
[69] Citing VOAO; SZLGP v Minister for Immigration & Citizenship 181 FCR 113; [2009] FCA 1470.
Minister’s submissions
The Minister submitted that ground 2 should be rejected because:
a)there are a number of difficulties with the assertion that there was no evidence upon which the IMR could have based that finding. It is not sufficient that the fact of which there is said to be no evidence be an “important” fact in the context of assessing the applicant’s claims: it must be a “jurisdictional fact”:
However, a finding of the Tribunal that is a “critical step in its ultimate conclusion” for which there is no evidence in support can constitute jurisdictional error: SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19]. The fact of which there is said to be “no evidence” must be a jurisdictional fact; i.e. ““an essential preliminary to the decision-making process” as distinct from “a fact to be adjudicated upon in the course of the inquiry””: see VWBF v Minister for Immigration [2006] FCA 851 per Heerey J at [19] citing Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-442, VXDC v Minister for Immigration (2005) 146 FCR 562 at [13]. Otherwise a finding on credibility could not be disturbed: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
b)the finding complained of is not a “jurisdictional fact” in the relevant sense. That is, it is not “an essential preliminary to the decision-making process”. Rather, it was a fact to be adjudicated upon in the course of the inquiry; and
c)it is questionable whether the fatwa was corroborative evidence in any event. As was said by the Full Court of the Federal Court in SZNSP:
Moreover, it was open to the RRT to conclude that, in view of all the evidence in the case, no reliance should be placed on the witness statement. The corroborative evidence was not corroborative evidence at all. It did not tend to prove that the first respondent’s evidence was true, nor does it act to strengthen that evidence. Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated. It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims. The provenance of the witness statement was not established. It could easily have been created by the first respondent herself.[71]
[71] SZNSP FCR at 485 per North and Lander JJ; FCAFC at para.35 per North and Lander JJ.
The Federal Court’s comments are apposite. Clearly the IMR had serious credibility concerns with the applicant’s claims and evidence. The rejection of the fatwa may be seen as an extension of those concerns. No independent evidence was required in order for the IMR to conclude that the document appeared to have been fabricated. Rather, the document itself was the evidence upon which the IMR was able to base that finding.
Admissibility of Ms Parle’s Affidavit
Ms Parle’s Affidavit - content
At hearing the applicant sought to have tendered in evidence an affidavit of Ms Parle sworn 4 July 2011.[72]
[72] “Ms Parle’s Affidavit”. Ms Parle was the author of the Counsellor’s Report referred to above.
The content of Ms Parle’s Affidavit sets out:
a)her qualifications and employment experience;
b)details of the referral of the applicant to her by a psychologist;
c)the provision of the Counsellor’s Report to the applicant’s migration agent; and
d)an explanation that the findings in the Counsellor’s Report are based on three counselling sessions with the applicant prior to her writing the report on 22 March 2011.
Ms Parle then sets out:
a)her observations about the applicant’s symptoms at the time she assessed him, and observations as to whether or not he would have been suffering those symptoms at the time of the First IMR Interview;
b)evidence that she considers it within her expertise to offer an opinion about a person’s psychological condition at an earlier time (but no basis for that opinion);
c)various extracts from reference materials relating to the symptomology of depression and traumatic stress, and observations as to the applicant’s nature and history of psychological symptoms and whether they indicated that he had suffered certain kinds of trauma;[73]
d)an explanation that her statement in the Counsellor’s Report that “I am writing this report to clarify why … [the applicant] may discuss now things which he previously did not reveal” as being based on her experience and “specialised knowledge in the trauma field”, and various research studies, including reference to material written and published by the Victorian Foundation for Survivors of Torture Inc in June 1998;[74] and
e)observations as to when the symptomology of traumatic stress can be provoked so as to make a person appear less credible, and discussion of the circumstances surrounding the applicant’s treatment and the applicant’s improvement in his ability to discuss and explain events consequent upon that treatment.[75]
[73] Ms Parle’s Affidavit, paras.7-9.
[74] Ms Parle’s Affidavit, para.10.
[75] Ms Parle’s Affidavit, paras.11-12.
Applicant’s submissions
The applicant submits that Ms Parle’s Affidavit is both admissible and relevant in the proceedings on the basis that ground 1 of the application deals with the Second IMR’s treatment of the Counsellor’s Report, and Ms Parle’s Affidavit is therefore relevant for the following reasons:
a)it is proof of the type of evidence the applicant would have obtained and submitted to the Second IMR had he been provided with the opportunity;
b)the evidence demonstrates, practically, the applicant’s lost opportunity to further advance his case;[76]
[76] Citing Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ; [2003] HCA 6 at para.37 per Gleeson CJ; S1910/03 v Minister for Immigration & Multicultural Affairs [2006] FCA 1713.
c)the evidence supports the grant of relief, in that it cannot be said that the denial of procedural fairness would have made no difference to the outcome of the decision;[77]
[77] Stead v State Government Insurance Commission (1986) 161 CLR 141.
d)the evidence is in the nature of an expert report and supports the argument that the Second IMR’s effective rejection of the Counsellor’s Report as to the applicant’s mental health, was erroneous, misconceived and without any basis;
e)Ms Parle’s Affidavit is relevant to the following two grounds which were contended for by the applicant as part of ground 1, namely:
i)the Second IMR rejected the Counsellor’s Report on an unfounded and unsubstantiated basis that the Counsellor’s Report was not relevant as Ms Parle was not “in a position to assess [the applicant’s] psychological condition at the time of his earlier interviews.”[78] This finding had no evidentiary basis and effectively constituted an unreasonable finding and a failure by the Second IMR to consider the question raised by the material; and
ii)the Second IMR failed to accord to the applicant procedural fairness in the way it dealt with the Counsellor’s Report and by failing to extend to him the opportunity to respond to its rejection of the Counsellor’s Report;
f)in NARV v Minister for Immigration & Multicultural & Indigenous Affairs[79] the Full Court of the Federal Court received into evidence an affidavit by the applicant outlining what he would have done, had procedural fairness been afforded to him; and
g)Ozberk v Minister for Immigration & Multicultural Affairs[80] is distinguishable because it concerned the question of the authenticity of documents before the Refugee Review Tribunal in a case in which the Refugee Review Tribunal was entitled to form a view that the document submitted to it was false. In the present case Ms Parle’s Affidavit does not invite the Court to consider the fact finding of the Second IMR afresh or to review the factual merits of the decision, instead it bears upon the jurisdictional error alleged, namely:
i)unreasonableness or misconception of duty; and
ii)denial of procedural fairness.
[78] CB 157 at para.78
[79] (2003) 135 FCR 89 at 101 per Ryan and Finkelstein JJ; [2003] FCAFC 262 at para.19 per Ryan and Finkelstein JJ.
[80] (1998) 79 FCR 240 (“Ozberk”).
Minister’s submissions
The Minister opposes the admission of Ms Parle’s Affidavit for the following reasons:
a)Ms Parle’s Affidavit was filed out of time and without leave, which the Minister says is required because of this Court’s order of 27 May 2011 that:
The Applicant file and serve any affidavit evidence … upon which it is proposed to rely on or before 20 June 2011.
b)Ms Parle’s Affidavit was filed on 4 July 2011, that is two weeks outside of the time contemplated by the abovementioned order;
c)the affidavit is not relevant and is therefore not admissible.[81] For the applicant to succeed in relation to ground 1 of the application the applicant must establish that the Second IMR failed to accord him procedural fairness. Ms Parle’s Affidavit cannot be used to demonstrate a denial of procedural fairness by furnishing the Court with information which was not before the Second IMR. In this sense, the bulk of the matters deposed to in the affidavit constitutes fresh evidence. The applicant has not demonstrated that the affidavit is relevant;
d)it is well settled that, except in very limited circumstances, it is beyond the Court’s power to receive fresh evidence on an application for judicial review, and to use that evidence to remit the matter to the decision-maker;[82]
e)in Ozberk the Federal Court refused to received into evidence two affidavits which the applicant asserted should be admitted as fresh evidence before the Federal Court in order to establish that an opposite result would have been reached if new evidence had been available to the Refugee Review Tribunal. Following the Federal Court decision in Servos v Repatriation Commission,[83] the Federal Court held that the Court had no jurisdiction to admit fresh evidence, and went on to hold that the real purpose for which the admission of the fresh evidence was sought was to contradict the evidence which had been before the Refugee Review Tribunal; and
f)in the present case the applicant seeks to do that which was identified in Ozberk as being a proscribed purpose on judicial review, that is, to take advantage of the judicial review process by addressing a matter which was properly reposed with the Second IMR, and which amounts to a challenge to the merits of the Second IMR Recommendation.
[81] Evidence Act 1995 (Cth), s.56(2).
[82] NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at paras.43 and 53 per Beaumont, Lindgren and Tamberlin JJ; SBBJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 761 at para.21 per O’Loughlin J (and cases there cited); Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 1105 at paras.6-7 per Ryan, Marshall and Conti JJ; Ozberk at 254 per Marshall J.
[83] (1995) 56 FCR 377.
Applicant’s further submissions on extension of time in which to file affidavit
In relation to the question of extension of time the applicant further submitted that:
a)Ms Parle’s Affidavit was served upon the Minister in adequate time (presumably this is a reference to the fact that it was served a fortnight before the hearing);
b)there is no complaint, nor is there, any prejudice to the Minister in any way; and
c)further, that in any event, the applicant asserts there is a factual matter in dispute, and repeats that the representatives of the Minister indicated an agreement with those representing the applicant to the filing of Ms Parle’s Affidavit out of time.
Consideration
Consideration – extension of time in which to file Ms Parle’s affidavit
In Hunter Valley Developments Pty Ltd v Cohen[84] the Federal Court set out a non-exhaustive list of factors to be taken into account when considering an extension of time application. Although that application was under the Administrative Decisions (Judicial Review) Act 1977 (Cth), it has subsequently been applied across various areas of Australian federal civil law.[85] Those factors are as follows:
a)whether or not there is an acceptable reason for the delay, where the prima facie rule that proceedings commenced outside the prescribed period of 28 days will not be entertained;
b)any action taken by an applicant to make a respondent aware of the applicant’s dissatisfaction with the decision prior to the substantive application being lodged;
c)whether or not there would be any prejudice to a respondent occasioned by any delay noting that an absence of prejudice alone is not enough to justify granting an extension of time;
d)the merits of the substantive application; and
e)considerations of fairness as between an applicant and other persons in a like position.[86]
[84] (1984) 3 FCR 344 (“Hunter Valley Developments”).
[85] See, by way of example, Lindsay v Director of Professional Services Review & Ors [2011] FCA 262 at para.10-11 per Edmonds J (“Lindsay”).
[86] Hunter Valley Developments at 348-349 per Wilcox J.
No reason for the delay in filing Ms Parle’s Affidavit was put forward by the applicant: either by way of oral or affidavit evidence, or even in submissions. The applicant has not established that there is an acceptable reason for the delay in filing of Ms Parle’s Affidavit. The applicant thus fails at what might be considered the primary hurdle, namely, whether there is an acceptable reason for the delay.
There was a suggestion in submissions by Counsel for the applicant that the Minister had consented to the late filing of Ms Parle’s Affidavit, but this was disputed by Counsel for the Minister. If the parties had consented to the late filing of Ms Parle’s Affidavit then, given that that consent effectively varied an order of the Court, it ought to have been the subject of a consent order to vary the Court’s earlier order. That there was no consent order filed, nor any evidence of a draft consent order prepared by the parties, or one of them, an absence which might allow the Court to infer that there was no such consent. In any event, in the absence of any evidence on the issue the matter can go no farther, and does not establish an acceptable reason for the delay in filing of Ms Parle’s Affidavit.
As to whether any action was taken by an applicant to make the Minister aware of the applicant’s “dissatisfaction” with the Court’s order prior to Ms Parle’s Affidavit being lodged, there is again no evidence, either of the Minister’s alleged consent to the late filing of Ms Parle’s Affidavit, or of any other steps taken by the applicant in this regard. It has thus not been established by the applicant that there was any relevant notification to the Minister of the intention to file Ms Parle’s Affidavit late.
There is no evidence of any particular prejudice to the Minister if the extension of time were to be granted, but it is trite to observe that absence of prejudice alone is not enough to justify granting an extension of time in which to file Ms Parle’s Affidavit.
The merits of the substantive application are dealt with below, and for the reasons there set out the Court is of the view that the substantive application lacks merit and ought to be dismissed. Further, the Court observes that, for other reasons set out below Ms Parle’s Affidavit is not admissible in any event, and would therefore not be a consideration in determining the merits of the substantive application.
The issue of fairness as between the applicant and other persons in a like position does not arise on the facts of this matter.
In all of the above circumstances, the applicant’s application for an extension of time in which to file Ms Parle’s Affidavit must be dismissed.
Consideration – admissibility of Ms Parle’s Affidavit
To the extent that Ms Parle’s Affidavit sets out:
a)her qualifications and details of her current employment;
b)details of the referral of the applicant to her;
c)the provision of the Counsellor’s Report to the applicant’s migration agent; and
d)an explanation that the findings in the Counsellor’s Report are based on three counselling sessions with the applicant prior to her writing the report on 22 March 2011,
that content is not controversial, but it goes no further than the Counsellor’s Report, and therefore adds nothing to what was before the Second IMR.
The applicant’s assertion that the evidence in Ms Parle’s Affidavit is evidence of a type which the applicant would have submitted had he been afforded the opportunity, and that the applicant lost that opportunity by reason of the Second IMR’s failure to give weight to the Counsellor’s Report, must be considered in light of the following propositions:
a)it is for the applicant to make his case;[87]
b)the duty of the Second IMR was to ensure that the applicant was given a reasonable opportunity to present his case, not to make sure that the applicant took best advantage of the opportunity to which he was entitled;[88] and
c)the Second IMR was not obliged to:
i)give a running commentary on his views to the applicant; or
ii)preview his conclusions for review by the applicant.[89]
[87] SZBEL CLR at 164 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.40 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[88] Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J (with whom Fisher J agreed at 350); Goodricke v Comcare (2011) 122 ALD 546 at 557 per Flick J; [2011] FCA 694 at para.60 per Flick J.
[89] SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In Abebe v The Commonwealth of Australia[90] the position was summarised thus:
The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.[91]
[90] (1999) 197 CLR 510; [1999] HCA 14 (“Abebe”).
[91] Abebe CLR at 576 per Gummow and Hayne JJ; HCA at para 187 per Gummow and Hayne JJ.
And that is what has happened in this case: the applicant advanced a case before the Second IMR, and the Second IMR made a recommendation on the basis of what was put by the applicant, including the Counsellor’s Report, albeit that it gave the Counsellor’s Report no weight. The conclusion that the IMR erred in giving “no weight” to the Counsellor’s Report, with the implication that it should have given different, presumably determinative, weight to the Counsellor’s Report, would involve this Court in reviewing the factual findings of the IMR, rather than the process by which the IMR arrived at its conclusions.[92] No doubt minds might differ as to the question of whether weight might be given to the Counsellor’s Report, and if any weight were to be given to it, the conclusions arising therefrom, which, in those circumstances, might be determined by the need for the Counsellor’s Report to be weighed against other evidence.[93] But nothing alters the fact that these are still factual findings which it would not ordinarily be for the Court, engaged in judicial review, to set aside. To the extent that Ms Parle’s Affidavit now seeks to put before this Court additional facts, it is irrelevant, because that task was properly one for the Second IMR.
[92] Minister for Immigration & Citizenshipv SZJSS & Ors (2010) 243 CLR 164 at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 48 at para.36 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“SZJSS”).
[93] SZJSS CLR at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.36 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The applicant asserts a loss of opportunity because the Second IMR gave no weight to the Counsellor’s Report. The applicant, in putting the Counsellor’s Report before the Second IMR took the opportunity which it was afforded to address issues associated with the applicant's credibility and recall of events, but failed to make best use of that opportunity. The Counsellor’s Report is very short, lacking in relevant detail, and even on an informal level, goes nowhere near qualifying Ms Parle as an expert, or as a treating practitioner with an identified area of expertise. Ms Parle’s Affidavit now seeks to put before the Court, as part of a judicial review application, factual material going to matters of the applicant’s treatment and its effect on his ability to recall, together with extracts from ostensibly learned articles, and information as to her expertise, which ought to have been, but was not, put before the Second IMR as part of the applicant’s merits review case. Judicial review is not a safety net for poorly executed merits review cases.
The applicant also says that Ms Parle’s Affidavit ought to be admissible because it is in the nature of an expert report. It is not, however, in the nature of an expert report. Setting aside the strict requirements of the Federal Court Practice Note CM7 on Expert Witnesses,[94] it is notable that Ms Parle's Affidavit does not:
a)particularise, or properly particularise, her training, study or the experience by which she has acquired specialist knowledge, and it is fact not possible to discern from Ms Parle’s Affidavit what specific study she has done which might qualify her to express opinions about the applicant’s retrospective recall and psychological state, or what her specialised field of expertise is said to be. There is, for example, no detailed curriculum vitae from which an assessment of expertise might be made having regard to the relevant specialised content of qualifications or training, or publications, or specific relevant prior clinical experience. Save for the concession by the applicant’s Counsel at hearing that Ms Parle is not a psychologist,[95] it is not precisely possible to determine the nature and extent of Ms Parle's expertise; or
b)specify what questions or issues she was asked to consider, what materials she was briefed with, and what factual findings or assumptions her views are based on.
[94] “Practice Note CM 7”.
[95] Transcript, p.7.
Ms Parle is not just a “Counsellor” but is also an “Advocate”, and in that regard there must be doubt as to whether she could be impartial in the sense required to qualify as an expert, for partial advocacy for a party is the antithesis of the duty of an expert witness.[96]
[96] Practice Note CM 7, para.1.2.
Viewed objectively, Ms Parle’s Affidavit is no more than a more detailed description of the background to, and counselling of, the applicant, and the views of his treating “Counsellor”, who is not qualified as an expert, or who has not been qualified as an expert, for the purposes of these proceedings.
The assertion that there was no basis for the Second IMR to conclude that Ms Parle was not in a position to assess the applicant’s psychological condition at the time of the RSA and First IMR interviews is, contrary to the applicant’s submissions, a conclusion which was open on the evidence before the Second IMR. That was so because (as conceded in these proceedings) Ms Parle was not a psychologist, and because there was no evidence before the Second IMR as to whether Ms Parle’s expertise extended to the making of assessments of a person’s psychological condition. Ms Parle’s Affidavit does not, for reasons set out above, clarify her field of expertise.
Whether or not time for the filing of Ms Parle’s Affidavit were to be extended, it is not, in the circumstances, admissible in evidence. That is because, for the reasons set out above, there has been no denial of procedural fairness, nor misconception of duty as asserted, nor unreasonableness, in relation to the Second IMR’s treatment of the Counsellor’s Report, and in the circumstances it is not relevant to the exercise of this Court’s judicial review functions.
In the event that an extension of time in which to file Ms Parle’s Affidavit had been granted, the applicant’s application for the admission into evidence of Ms Parle’s Affidavit would not therefore, have been granted in any event.
Ground 1
For reasons set above,[97] the Second IMR did consider the Counsellor’s Report, and the weight to be given, or not given, to the Counsellor’s Report was entirely a matter for the Second IMR. It was for the Second IMR to determine whether or not Ms Parle was in a position to assess the psychological condition of the applicant at a time significantly prior to that at which she met and interviewed him, and to weigh the significance of that evidence in the totality of the evidence, especially the evidence and consequent findings of the Second IMR as to the applicant’s credit. Further, as also indicated above,[98] it was open to the Second IMR not to accept that Ms Parle was in a position to assess the psychological condition of the applicant as she was not a psychologist. In any event, there is no sufficient evidence of her specific expertise to enable a decision-maker to determine whether she was qualified to “assess … psychological condition” either at an earlier time or at all. In any event, it was open for the Second IMR to find that Ms Parle was not in a position to assess the applicant’s psychological condition because she had no involvement with the applicant at the relevant time.
[97] See para.39 above.
[98] See para.44 above.
There was no misconception of duty by the Second IMR. The Second IMR carried out the tasks required of it, and actually considered the Counsellor’s Report, and made a finding as to the weight to be ascribed to it.[99]
[99] Abebe CLR at 576 per Gummow and Hayne JJ; HCA at para 187 per Gummow and Hayne JJ.
There was no obligation on the Second IMR to give the applicant an opportunity to comment on its findings before delivery.[100]
[100] SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In all the circumstances, the applicant has not made out ground 1, and it must fail.
Ground 2
The question of the authenticity of the email attaching the fatwa was a question of fact for the Second IMR. The Second IMR properly and appropriately raised the question of the email’s source, date and content (including the photograph said to be of the applicant) in the hearing, and the failure to raise the email at earlier stages of the applicant’s application process, thus giving the applicant the opportunity to address those issues.
The Second IMR also specifically raised the question of whether or not the email had been tampered with, particularly with relation to the date line of the email. That was a matter which seemingly arose on the face of the email provided to the Second IMR by the applicant. Thus, it is not a matter which required the Second IMR to obtain “expert opinion”, but rather a matter in respect of which the applicant was obliged to prove its case, but failed to do so. It is significant that no further steps were taken by the applicant, who was professionally advised and represented, with respect to this issue after the hearing, and prior to the handing down of the Second IMR Recommendation.
In any event, even if an error was made, it was an error within jurisdiction as to a fact to be proven as part of the merits review, and not an error as to a jurisdictional fact.
For the above reasons ground 2 is not made out, and must fail.
Conclusions and orders
The Court has concluded that:
a)the applicant’s application for an extension of time in which to file Ms Parle’s Affidavit is to be dismissed;
b)in any event, even if Ms Parle’s Affidavit were not out of time, it is inadmissible in evidence; and
c)grounds 1 and 2 of the application have not been made out, and therefore the application must be dismissed.
There will be orders and a declaration accordingly.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 13 November 2012
[29] CB 159 at paras.87-88. Transcribed from Second IMR Recommendation without amendment.
[70] SZMIB v Minister for Immigration and Citizenship [2008] FMCA 1433 at para.13 per Raphael FM.
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