EFJ17 v Minister for Immigration
[2020] FCCA 1844
•8 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EFJ17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1844 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to rely on ground of proposed amended substantive application – previous grounds abandoned – whether there was such merit in the proposed ground to warrant leave to amend in the interests of the administration of justice – whether there was a satisfactory explanation for the significant delay to amend – merit in the proposed ground – satisfactory explanation for the delay – leave to amend granted. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385 |
| Applicant: | EFJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2924 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 23 June 2020 |
| Date of Last Submission: | 23 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Solicitors for the Applicant: | ABU Legal |
| Solicitors for the Respondents: | Sparke Helmore |
| Legal Representative for the Respondents: | Ms K. Evans |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave to amend the application made on 20 September 2017 is allowed.
A writ in the nature of certiorari issue quashing the decision of the second respondent made on 21 August 2017.
A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.
The first respondent pay the applicant’s costs set in the amount of $5000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2924 of 2017
| EFJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 20 September 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 21 August 2017 affirmed the decision of the delegate of the Minister (“the delegate”) to refuse the grant of a Protection (class XA) visa (“the visa”).
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB”, “RE1”) and the applicant’s affidavit of 19 June 2020.
Background
The applicant is a citizen of Iran (items 21 and 22 at CB 15). He arrived in Australia on 6 March 2014 (item 29 at CB 16) and made an application for a protection visa on 3 April 2014 (CB 2 – CB 64, and CB 66.5). He was assisted by a registered migration agent (CB 10).
Attached to the applicant’s protection visa application was his statement of claims to fear harm (CB 48 – CB 56). His claims to fear harm can be summarised as follows:
1The applicant claimed to fear harm because of his religious views. While studying at university in Iran in 2007, he questioned the merits of Islam during his compulsory Islamic studies classes ([5] – [8] at CB 48).
2As a result of this, the applicant claimed he attracted the negative attention of his teachers, including one who formerly worked for the Basij (secret police) and the Etelaat (Iranian intelligence) ([8] – [11], and [14] at CB 48 – CB 49).
3The applicant asserted that another student overheard his Islamic Studies teacher telling his other teachers to lower the applicant’s marks ([12] at CB 49). At the end of the semester the applicant failed his Islamic studies subjects and received low marks in his other subjects ([15] at CB 49).
4He also asserted that he received threats of death and to “keep [his] mouth shut” and not speak out against Islam, prior to his exams, after being called to the Basij office at the University ([16] at CB 49).
5The applicant claimed that he was attacked by five people in or around November 2007 while sitting in his car in front of the university ([18] at CB 49). His car windows were broken, and he was dragged out of his car and beaten ([19] at CB 49). The attackers did not say why they were attacking him, but fled when other people “came closer” ([20] at CB 49).
6The applicant went to the police station immediately after the attack to report it ([21] at CB 49). The police told him to “report back” if a similar incident occurred again ([23] at CB 50). The applicant thought that the attack was related to his meeting at the University Basij office and the “threat” he received earlier that day ([21] – [22] at CB 49 to CB 50).
7The applicant claimed he was assaulted “around four times” after the initial attack ([24] at CB 50). The second attack occurred at the University Basij office around 2008, where four Basij verbally and physically abused him. He was knocked unconscious and later awoke in hospital. His jaw was broken and he also had to receive stitches ([24] – [25] at CB 50). The applicant did not report this to police as he was “scared” that something would happen to his parents or himself ([26] at CB 50).
8The applicant noted that it was difficult for him to “recall exact dates” as a result of the “trauma” he experienced, however he continued to attend university and to be threatened with death by the Basij at the university if he reported them to the police ([27] – [28] at CB 50).
9In or around 2009, the applicant began speaking to other students around the University to stand up against the government, around the time of the Green Revolution in Iran ([30] – [31] at CB 51).
10The applicant was again called to the University Basij office and threatened, where the “University officials” forced him to be an informant for them, and to report anti-government sentiments being spoken by other students ([32] at CB 51).
11The applicant warned the other students about this while pretending to be an informant. This continued until the university Basij office found out that he did not intend to inform on other students. This was around 2011 ([33] – [35] at CB 51). The applicant was beaten after being confronted about not following the Basij’s orders ([36] at CB 51), and was expelled from University about a month after this incident ([37] at CB 51).
12The applicant found employment as a “web designer” where he gained access to international news stories concerning Iran. He began distributing these on flyers outside his university campus or to his university friends. He did this for two years ([39] – [41]) at CB 52).
13The applicant was told that a photograph had been taken of him distributing the news flyers. He told his father who urged him to leave for Malaysia. The applicant went to Malaysia a week after being told this ([42] – [44] at CB 52).
14While in Malaysia the applicant obtained a six month student visa. He had to return to Iran when it ceased. He claims that upon his return on 20 December 2013, around 3:30am, he was arrested at the airport and his laptop and external hard drive were seized and searched ([45] – [49] at CB 52 to CB 53).
15Around 6am, after being detained for over three hours, the applicant was blindfolded by four people in “plain clothes” ([49] – [50] at CB 53), put into a car and drove “for a long time” ([51] at CB 53). He was eventually put into a cell ([52] at CB 53).
16The applicant claimed to have been detained for over a day before being shown photographs of himself handing out flyers. He denied that it was him, to which he received threats of sexual violence against himself and his family unless he confessed. He was sexually assaulted and mistreated while in prison. The applicant was detained for 10-12 days and was threatened with death ([53] – [58] at CB 53 to CB 54). He was released from prison after a month, after his father submitted his house deed as security for the applicant’s release ([59] – [63] at CB 54 to CB 55).
17The applicant was very unwell after his release and required hospitalisation and therapy. He was given medication for his “mental health condition”. The applicant was “detained” in hospital for “several days” because “they” were concerned he would “commit suicide” ([64] – 65] at CB 55).
18On 25 February 2014 the applicant found out that his student visa to Australia had been granted ([66] at CB 55). He was concerned that the Iranian government had “blacklisted” him and that he would not be able to leave Iran. His father had contacts in the passport office who said that he had not been blacklisted, so the applicant bought a ticket to depart Iran for Australia as soon as possible ([67] – [68] at CB 55).
The Delegate
The applicant was invited to attend an interview with the delegate on 24 September 2014 (CB 74). Prior to his interview he was invited, by letter on 18 August 2014, to provide any additional supporting documents or additional claims (CB 74 – CB 76).
On 16 September 2014 the applicant’s representative emailed to the Minister’s department various documents, including a letter dated 9 September 2014 from Dr Ruth Foster, a consultant psychiatrist at the Asylum Seekers Centre Newtown, a clinical report dated 15 September 2014 from Gabrielle Asprey, a counsellor at the Asylum Seekers Centre Newtown, and various documents translated from Persian (Farsi) into English (CB 77 – CB 86).
The letter from Dr Foster, dated 9 September 2014, stated that she had seen the applicant on one occasion at the Asylum Seeker Centre in Newtown on “August 7th” (CB 84.3), and had one telephone conversation with him thereafter. She noted that the applicant described himself as experiencing sleep disturbance, intrusive thoughts of suicide, frequent episodes of “disassociation”, and anxiety (CB 84.4 – CB 84.5).
Dr Foster diagnostically considered that the applicant had “acute Post Traumatic Stress Disorder and because of the almost psychotic level of anxiety”, prescribed the applicant medication (CB 84.6). Further, Dr Foster was of the opinion that (at CB 84.7):
“Because of his experiences of interrogation in his own country I would expect he could experience questioning as persecutory and this may trigger dissociation and a re experiencing of previous trauma which will interfere with his capacity to respond appropriately in the here and now.
This needs to be considered if he appears or becomes overwhelmed.”
The report dated 15 September 2014 from Ms Asprey, stated that the applicant had been receiving counselling with her at the Asylum Seekers Centre since 18 August 2014 (CB 85.3). Ms Asprey observed that the applicant had initially presented as “cleanly shaven with neat and tidy clothing”, but over the previous few weeks his appearance had become “less tidy” and he was unshaven, which the applicant cited as being due to a lack of interest in “himself and his appearance” (CB 85.5).
The applicant described himself as having poor confidence, feelings of anxiety, “questioning the meaning of life” and he had: “…lost belief in his future and [had] a feeling of hopelessness” (CB 85.6 – CB 85.8). He also had feelings of shame and anger over his claimed prison detention and treatment (CB 86.1 – CB 86.2).
Ms Asprey’s observations of the applicant suggested that he had experienced trauma, and his change in attitude, including his sense of hopelessness, reflected that of a response to trauma (CB 86.3 – CB 86.5). Ms Asprey noted that the applicant: “…expressed a belief that if he returns to Iran the authorities will arrest him or kill him” and that: “This is [sic] fear for his life is likely to further impact on [the applicant’s] mental health and ongoing counselling support is recommended” (CB 86.5 – CB 85.6).
Post interview submissions dated 7 October 2014 were sent to the department by the applicant’s representative regarding the applicant’s credibility (CB 89 – CB 93). Of particular relevance are the submissions under the heading “Mental health effects on credibility” (at CB 89.5 – CB 91.3). The applicant’s representative submitted (at CB 89.5) that:
“[The applicant’s] inability to articulate himself concisely throughout the interview should not be held against him when ascertaining his credibility. It has been well documented that individuals who have encountered forms of torture and trauma have an exceptionally difficult time of expressing themselves and articulating their claim for protection.”
The submissions referenced the above reports, and noted that these reports supported the argument that the applicant had been: “…detrimentally affected by his traumatic experiences in Iran and subsequently has difficulty in articulating his claims for protection” (at CB 89.8).
The submissions went on to cite various documents and reports concerning the assessment of credibility, and quoted parts of these documents which noted the various factors that needed to be taken into account when assessing the credibility of individuals who had reportedly suffered traumatic events, in addition to various symptoms that they might experience or display as a result of such trauma, which may affect the disclosure, or presentation, of their evidence (CB 90.3 – CB 91.3).
The applicant was notified by letter dated 10 March 2015 that his application for the visa had been refused (CB 98 – CB 102). A copy of the decision was attached to this correspondence (CB 103 – CB 118).
The delegate was not satisfied that the applicant’s claims were credible, and therefore found that he did not meet the requirements of s.36(2)(a) (CB 114 – CB 115). Further, that he was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act (CB 116 – CB 117).
The Tribunal
The applicant applied for review of this decision on 31 March 2015 (CB 119 – CB 120). He was invited to attend a hearing before the Tribunal on 28 March 2017 (CB 148 – CB 150), which he did attend, with the assistance of an interpreter in the Persian (Farsi) language (CB 214 – CB 215).
The applicant’s representative sent submissions (dated 15 March 2017) to the Tribunal on 21 March 2017 (CB 159 – CB 183). The applicant’s undated personal statement was also attached (CB 184 – CB 189), in addition to a supplementary statement of the applicant dated 14 March 2017 (CB 190 – CB 192), and various documents and photograph attachments in support (CB 193 – CB 213). In these submissions new claims were raised regarding the applicant’s claims to fear harm for reason of his homosexuality, which had not previously been disclosed to the delegate or the Tribunal (CB 160 – CB 161).
The applicant’s representative submitted that he was: “…aware that the Tribunal may have concerns about the credibility of [the applicant’s] new claims” and noted that the applicant had explained the reasons for not previously revealing “the nature of his sexual identity” in his supplementary statement of claim (CB 160.9). The applicant submitted that the reason he had not revealed this earlier was driven, in part, by his feelings of “shame” (CB 181.4).
The applicant’s supplementary statement dated 14 March 2017 outlined that he had not previously mentioned this claim regarding his homosexuality because of his “background” in Iran where it is seen as “sinful and wrong to be gay” ([3] at CB 190).
He further stated that his fear of being open about his sexuality stemmed from negative experiences in Iran ([3] – [11] at CB 190 – CB 191), including on one occasion where he was detained and warned by the police after they stopped him for “touching” hands with another man while walking in public ([8] at CB 191). The applicant stated that he had not mentioned this claim to the lawyer who had helped him with his protection visa application ([2] at CB 190).
The applicant attended at a resumption of his hearing on 21 June 2017 (CB 245).
The applicant was invited to attend at a further resumption of the adjourned hearing on 19 July 2017 (CB 246 – CB 249), which he attended, with the assistance of an interpreter in the Persian language and his representative (CB 252 – CB 253). The applicant’s representative emailed the Tribunal post hearing submissions regarding the applicant’s new claims and the Tribunal’s credibility concerns on 21 July 2017 (CB 254 – CB 255).
The applicant was notified that the Tribunal had made a decision on 21 August 2017 to affirm the delegate’s decision in refusing to grant him a protection visa (CB 256 – CB 279).
Before the Court
The applicant first appeared before a Registrar of this Court on 23 October 2017. He was not legally represented. Orders were made, by consent, for the facilitation of the filing of documents. The applicant was given leave to file and serve an amended application by 18 December 2017. No amended application was filed by this date. Orders were also made giving the applicant, and first respondent, the opportunity to file and serve written submissions, 14 days and 7 days, respectively, prior to the final hearing date. No written submissions were filed by the applicant 14 days prior to the final hearing.
The matter was set down for final hearing on 23 June 2020. The parties were notified of this by way of email communication sent on 1 May 2020. This was sent to the applicant’s email address provided in the “Address for service” section of his originating application.
The parties were sent further email correspondence by the Court on 17 June 2020 giving them the option to appear at the hearing in person (observing COVID-19 safety protocols), or to appear by telephone. The parties were asked to confirm their preference by no later than 3pm on 19 June 2020. The Minister’s solicitor sent email correspondence on 18 June 2020 in reply, confirming that a solicitor for the first respondent would attend in person. The applicant did not reply to the Court’s email correspondence by Friday 19 June 2020.
On the morning of Monday 22 June 2020, the day before the final hearing, the Court was notified by email that Mr Abu Siddque, solicitor, had now come on the record as the applicant’s legal representative. A notice of address for service was also filed on behalf of the applicant on this date. Mr Siddque notified the Court that Mr Bodisco of counsel would be appearing for the applicant at the final hearing, by telephone.
Email correspondence sent later in the morning of 22 June 2020 from Mr Siddque put the Court on notice that the applicant proposed to rely upon a “draft amended application”, which was attached to the email correspondence. On 22 June 2020 the applicant filed written submissions and an affidavit made by the applicant, dated 19 June 2020.
My Chambers replied to this email correspondence on 22 June 2020 noting that the Minister would attend in person and that the applicant’s counsel would appear by telephone, and requested that the Minister’s solicitor advise whether they were in a position to respond to the proposed amended application. The Minister’s solicitors replied shortly after by way of email correspondence confirming that the Minister was in a position to respond to the proposed amended application at the hearing the next day.
Subsequently at the hearing on 23 June 2020, the Minister’s solicitor informed the Court that the Minister had been put on notice of the “new ground” by the applicant’s representatives late on Friday 19 June 2020. The Minister’s solicitor “opposed” the “draft” proposed amended application. However the solicitor confirmed that the Minister was ready to proceed.
The Minister opposed leave being granted to the applicant to amend his application. The Minister submitted that the primary reasons for opposing such a grant of leave was due to the unexplained significant delay in making the proposed amendment, and the lack of sufficient merit in the proposed ground to warrant leave being granted in the interests of justice. Further, that the Minister did not have sufficient notice to warrant the amendment.
The Minister further submitted that a party was “not entitled” to raise a new claim immediately prior to the hearing date, and that the applicant’s evidence did not explain the significant delay in taking steps to obtain legal representation.
The hearing proceeded on the basis that I would hear the arguments in relation to these issues, including the sole ground of the proposed amended application. The Court would then consider whether there was sufficient merit to grant the leave. (See further below).
The Leave to Amend
It is the case that on the one hand there is a public interest in the efficient management of litigation. On the other, the interests of the administration of justice. In particular whether, taking into consideration all of the relevant circumstances presented, there is a real dispute to be heard in the substantive application such that the interests of justice require it to be heard (Autodesk Inc v Dyason (No 2) [1993] HCA 6 per Gaudron J at [1] and [18]).
In the current case, the factors arising from the circumstances presented in considering the exercise of the discretion appear to be the length of the delay, whether any satisfactory explanation or reasonable excuse has been given for the delay, and whether the proposed ground has such merit as to warrant the grant of leave.
The sole ground of the proposed amended application is as follows:
“SOLE GROUND:
The Tribunal has failed to deal with the full integers of the claim).
Particulars:
The Tribunal has misdirected itself about the significance of the psychiatric evidence relied upon by the Applicant, namely that:
a.He suffered clinically significant levels of Post Traumatic Stress Disorder;
b.His “level of persecutory Anxiety was such that he was at times almost delusional”; and
c.He engaged in “an avoidant trauma response” due to his incarceration, and was “unable to organise his thoughts and explain them in English”.”
[Error in the Original.]
The Delay in Filing the Proposed Amended Application
The applicant’s originating application was made on 20 September 2017. Orders made by a Registrar of the Court on 23 October 2017 gave the applicant the opportunity to file an amended application. No amended application was filed within the time contemplated by the Registrar’s order.
The amended application on which the applicant now seeks to rely, and which is the subject of his application for leave to do so, was electronically emailed to Chambers at 10:46am (and included in the applicant’s written submissions which were filed with the Court at 9:29am) on Monday, 22 June 2020.
As set out above, the final hearing for this matter was set for 23 June 2020 at 10:15am. This was notified to the parties on 1 May 2020. The delay in making the attempt to amend the application (taken from the last day, 18 December 2017, for which the applicant did have leave to file such an amended application as contained in the Registrar’s order of 23 October 2017), is over 29 months. That is a significant period which requires a satisfactory explanation.
The applicant’s evidence is that he wanted to represent himself because he was impecunious. When he received correspondence from the Minister he realised that he needed legal assistance.
On 9 June 2020 “a friend” told him about Mr Bodisco (now his counsel). The applicant provided the Court Book to him to obtain an opinion. Following advice from Mr Bodisco he engaged a solicitor on 18 June 2020. He attended the solicitor’s office on 19 June 2020 where he gave his instructions to proceed on the advice provided by Mr Bodisco.
The Minister raised no objection to the reading of the applicant’s affidavit. I note that in his original application the applicant had indicated that he required the services of an interpreter in the Farsi language. There is no interpreters’ jurat on the affidavit. While perhaps a matter of form, the Minister raised no objection.
The Minister’s Approach at the Hearing
In submissions the solicitor who appeared for the Minister at the hearing submitted that no correspondence had been sent to the applicant from the Minister. I understood this to be put in answer to the applicant’s evidence (at [2] of his 19 June 2020 affidavit) where he stated that he realised he needed legal representation after receiving correspondence from the Minister.
I put to the Minister’s solicitor that I was unable to accept this submission as it was an attempt to provide evidence from the bar table.
It may be that there was some inconsistency in the applicant’s evidence. The applicant’s evidence was that he sought legal representation after receiving correspondence from the Minister. The Minister’s written submissions to the Court are dated 16 June 2020. The applicant’s evidence indicates he received correspondence from the Minister prior to that date. The evidence therefore was potentially unclear in this regard.
But this is precisely why cross examination is available. The Minister did not call upon the applicant to be available for cross examination.
Nor, when the Court put to the Minister’s solicitor that evidence was required from the Minister if he wanted the Court to accept the submissions referred to above, was there any attempt by the Minister to request even a short adjournment to allow for further instructions to be obtained.
It is important to note the manner in which the Minister approached the matter of the applicant’s very late attempt to proceed on an amended application.
When the Court received the proposed amended application on the morning of 22 June 2020, my Chambers made enquiry by email at 11:56am (copied to the applicant’s solicitor) of the Minister’s solicitors as to his position given the late attempt to file the amended application. The Minister’s response provided at 12:09pm and 12:11pm on 22 June 2020 was that the Minister was ready to “respond to the amended application” and would oppose the grant of leave sought by the applicant.
At the beginning of the hearing on 23 June 2020 I again asked the Minister’s solicitor if the Minister was ready to proceed.
The applicant’s counsel made very clear that the applicant did not seek any adjournment, but in the circumstances, would not oppose any adjournment sought by the Minister.
The Minister’s solicitor made clear that her instructions were to proceed with the hearing. As set out above, no subsequent request, even for a short adjournment, was made when the difficulty arose from the Minister’s submissions on the applicant’s evidence.
Nor, importantly, did the Minister’s solicitor seek any adjournment when the Court raised a question about one part of the Tribunal’s decision record, in light of the applicant’s submissions (see further below).
Ultimately the Court can only proceed on the evidence properly admitted, and the submissions actually made. It is not for the Court, even in the current circumstances of the late presentation of the proposed amended application, to tell the Minister how to conduct his litigation or make out his case for him.
The Delay
The applicant’s evidence on the question of delay remained unchallenged by any other evidence from the Minister. The lack of any cross examination meant that any ambiguity, or lack of clarity, in the applicant’s affidavit evidence cannot be resolved by the Court in the Minister’s favour.
What remains, therefore, is that on the evidence, the applicant thought that he could conduct his case in person, but at some late point he realised this was not the case. He therefore sought legal assistance. On the dates provided by the applicant he, and his legal representatives, acted with expedition once the applicant realised he needed legal assistance. In all, the applicant has provided a reasonable explanation for the albeit significant delay in seeking the amendment.
The Applicant’s Argument on the Proposed Ground
This leaves the question as to whether the proposed ground has sufficient merit so as to argue for the leave sought.
The applicant’s proposed ground asserts that the Tribunal failed to deal with the “full integers” of the applicant’s claim. This is explained as follows. The applicant had provided two health related issues reports. These were the report by a consultant psychiatrist, dated 9 September 2014 (CB 84), and a clinical report by a counsellor at the Asylum Seekers Centre, dated 15 September 2014 (CB 85 – CB 86). (See above at [6] – [11]).
Although not made clear in the applicant’s submissions, these were provided by the applicant’s then migration agent as part of his application for the protection visa as initially considered by the delegate (sent by email on 16 September 2014, see CB 77).
The psychiatrist reported that she considered the applicant had: “…Acute Post Traumatic Stress Disorder”, with an: “…almost psychotic level of anxiety” (CB 84.6). This was based on what the applicant “described” at interview as a (at CB 84.5):
“…marked sleep disturbance, intrusive thoughts of suicide which he described as present since his incarceration and continuing fears that he was being watched or followed as he moves around in Sydney. [The applicant] also described frequent episodes of dissociation, ie an experience that the world or himself in the world has an unreal quality. I thought that as a result of his experiences and the alienness of suddenly finding himself in a very different culture there had been a significant fracturing of his sense of self, and his level of persecutory anxiety was such that he was at times almost delusional. His smiling affect was non congruent (at odds) with his description of his current psychological experiences and may have been the result of learned social behaviour and an adaptation to anxiety.”
The psychiatrist concluded (at CB 84.7):
“…I would expect he could experience questioning as persecutory and this may trigger dissociation and a re experiencing of previous trauma which will interfere with his capacity to respond appropriately in the here and now.”
The counsellor reported that (at CB 85.4):
“[The applicant] was referred to counselling due to his reported anxiety, inability to sleep, and sense of hopelessness prompted by the experience and subsequent fears for his life following his arrest, torture and humiliation in an Iranian prison.”
Further (at CB 85.7):
“Since his arrest, imprisonment and subsequent arrival in Australia, [the applicant] describes himself as being disinterested in his future, possessing a poor level of confidence, and feelings of anxiety and isolation for most of the time. He is now questioning the meaning of life, has lost belief in his future and has a feeling of hopelessness. He has described feeling like he is an observer in his life in Australia, rather than participating in it. He is less confident in making friends and believes people are not interested in him, nor is he sure who to trust.”
Even further (at CB 86.3 – CB 86.5):
“The change in his general attitude and outlook from confident and positive to feeling isolated and being detached are reflective of a trauma response. As is his lack of interest in the future and sense of hopelessness.
Although [the applicant] has a reasonable command of English, and is able to adequately describe his experiences in Australia and how his life was prior to the arrest, when asked about his time in prison, he seems unable to organise his thoughts and explain them in English. This may also indicate an avoidant trauma response.
[The applicant] has expressed a belief that if he returns to Iran the authorities will arrest him or possibly kill him. This is fear for his life is likely to further impact on [the applicant’s] mental health and ongoing counselling support is recommended.”
[Errors in the Original.]
On 7 October 2014 following the interview with the delegate (held on 24 September 2014, see CB 105) the applicant’s representative, who was also a registered migration agent (and a solicitor) made written submissions to the delegate (CB 89 – CB 93).
Although not specifically a part of the applicant’s argument before the Court, I note that it is clear that the applicant’s representative was concerned with the applicant’s presentation at the interview. For example, in the submissions he stated:
1“[The applicant’s] inability to articulate himself concisely throughout the interview should not be held against him when ascertaining his credibility. It has been well documented that individuals who have encountered forms of torture and trauma have an exceptionally difficult time of expressing themselves and articulating their claim for protection.” (At CB 89.6).
2“Throughout the interview the officer raised several issues of concern in relation to the problems experienced by [the applicant] at University. These included, inter alia;
“I don't find this credible that lecturers at a University would not be able to respond to you or answer questions that you asked. They should be able to answer questions about Islam”.” (At CB 91.3).
Before the Court the applicant emphasised the following from the representative’s submissions, in addition to what had been stated in the two reports, and as set out above:
1“Reports regarding [the applicant’s] mental well-being were supplied from a counsellor and a psychiatrist. These reports support the above mentioned argument that [the applicant] has been detrimentally affected by his traumatic experiences in Iran and subsequently has difficulty in articulating his claims for protection.” (At CB 89.8).
2“In 2013, the UNHCR produced a report where they examined issues that should be taken in to account when assessing an individual's credibility. They specifically discuss incidents where an individual has previously been tortured. The report states the following:
“Those who have suffered traumatic events often display avoidance symptoms; that is, they avoid thinking and talking about the event, and/or avoid situations that might trigger a recall. This is a normal survival strategy, which would need to be suppressed to facilitate disclosure of all relevant information in an asylum interview. As such, it may be extremely difficult, very distressing and potentially detrimental for the applicant to disclose such traumatic memories. Moreover, the applicant may not even be conscious that he or she is avoiding triggers or situations that could cause traumatic memories to recur. Avoidance may explain an applicant's apparent refusal to answer a question, omission of relevant information from testimony, vagueness and apparent inconsistencies if relevant facts are recalled later in the asylum process”.3” (At CB 90.3). [Footnote Omitted.]
3“Similarly, a report published in The British Journal of Psychiatry considered the assessment credibility of asylum seekers who had experience sexual violence. The report concluded:
The results indicate the, importance of shame, dissociation and psychopathology in disclosure and support the need for immigration procedures sensitive to these issues. Judgments that late disclosure is indicative of a fabricated asylum claim must take into account the possibility of factors related to sexual violence and the circumstances of the interview process itself.5” (At CB 91.1). [Footnote Omitted.] [Error in the Original.]
4“In accordance with the UNHCR guidelines, [the applicant] has made every attempt to verify his claims for protection, including by producing documentary evidence. His claim for protection is further corroborated by independent country information. We therefore submit, that in conjunction with the evidence given by [the applicant], the independent country information corroborating his claims for asylum and his diminished ability to give oral evidence due to the serious torture and trauma he underwent, [the applicant] should be given the benefit of the doubt when his claims for asylum are assessed.” (At CB 93.6).
Before the Court the applicant also referred to his representative’s submissions to the Tribunal dated 15 March 2017, where he raised various claims not previously made (CB 160 – CB 183). These included that the applicant now also claimed (at CB 160.8):
“In summary, [the applicant] is a homosexual man who has been persecuted in Iran for his sexual identity and who fears further persecution should he be returned to his country of birth.”
Before the Court the applicant also referred to a large number of photographs that he submitted to the Tribunal (CB 195 – CB 212). These were photographs of males in close proximity to each other. While possibly relevant to his claim to be homosexual, I could not see how they were relevant to the proposed ground, or the argument the applicant pressed before the Court.
In any event, the argument is that the applicant’s representative made a submission, in part based on the two reports concerning the applicant’s mental health issues, that the applicant had difficulty in expressing himself. The submission was that the failure to be able to concisely and orally articulate his evidence should not be held against the applicant in assessing his credibility.
The applicant submitted that the Tribunal misdirected itself as to the significance of the submission and the material (the reports) on which it was based.
The applicant’s submissions directed attention to [25] – [27] (particularly [27]) of the Tribunal’s consideration, under the heading of: “Mental health issues” (at CB 266):
“25) At the applicant's first hearing the Tribunal asked him about the mental health issues referred to in a submission to the Department and in particular what if any medication he was taking and any counselling he was receiving. The applicant stated that he was taking one medication for gastric acid and another in relation to a treatment for his hair.
26) The applicant stated that he was seeing someone before he came to Australia and he commenced counselling two to three weeks after he arrived in Australia. He thinks the last person he saw in the Asylum Seeker Centre was at the end of 2015. He stated that he saw different people each time and decided they couldn't help him because they just listened to his words. After that, he met with a psychologist near St Vincent's Hospital on one occasion in 2015. He stated whenever he talks to any psychologist he feels like they don't understand him. No one can help him but himself.
27) The Tribunal was prepared to accept that the applicant consulted a number of mental health practitioners in 2014 as outlined in submissions 12. Notwithstanding this, the Tribunal was satisfied that the applicant's evidence was not affected in any way by his previous attendance at these counselling sessions.”
[Footnote Omitted.]
The applicant relied on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE (No 2)”) at [58], [60] – [61] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (“Dranichnikov”) at [23], [26] – [27], [86] – [89].
Paragraph 23 of Dranichnikov is in the following terms:
“23. Mr Dranichnikov contends in this Court that the Tribunal misstated and failed to deal with the case presented to it. We accept this to be so. The passage that we have quoted from the decision of the delegate shows clearly the emphasis that Mr Dranichnikov placed upon his membership of a special group, not just of business people, but of business people in public protest, in effect, about state sanctioned corruption including, on occasions, violence. There is no reason why he would have presented his case any differently before the Tribunal. And in fact he did not. He not only referred to, and relied upon the material which had been presented to the delegate, and which in turn was before the Tribunal, but also included a written submission by his solicitor which reiterated Mr Dranichnikov's membership of a group of legitimate business people "who pose a threat to organised crime"; and, that he had taken a "stance against crime". It is clear that the Tribunal misunderstood and failed to deal with this important aspect of Mr Dranichnikov's case.”
Although not specifically referred to by the applicant, [24] of Dranichnikov is also relevant to his argument:
“24. To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the Tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made[1]) which provided as follows:
“(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision”.”
[Footnote Omitted.]
Paragraph 58 of NABE (No 2) is in the following terms:
“58. The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”
The Applicant’s Argument and the Consideration of the Minister’s Response
In his submissions to the Court the Minister correctly understood the applicant’s argument as being that the applicant’s representative submitted that the applicant’s inability, due to his mental health issues, to articulate his evidence and claims, should not be held against him in assessing his credibility.
The Minister’s submission was that this “claim” was squarely addressed by the Tribunal at various parts of its decision record.
One, at [6] of the Tribunal’s decision record (at CB 262):
“6) The applicant's registered migration agent (RMA) submitted a submission following the applicant's interview with the delegate of the Department. It refers to the applicant's mental state and the impact of this on his conduct at his interview and states that his inability to articulate himself concisely should not be held against him when assessing his credibility. It refers to various sources in relation to the impact of trauma and an individual's credibility and also refers to one of the applicants submissions regarding his condition. The submission also discusses an aspect of the applicant's evidence at interview regarding problems he experienced at university in Iran. It then talks about in addition to the applicant's attempts to substantiate his claims, he should be given the benefit of the doubt when his claims are assessed 2.”
[Error in the Original.]
[Footnote Omitted.]
I agree with the Minister that this is a fair summary of the representative’s submission to the delegate. However, of itself, it is not sufficient to provide an answer to the applicant’s argument. The question raised by the applicant’s argument is not answered by whether the Tribunal summarised the submission, but whether it took it into account in assessing the applicant’s credibility.
I do not accept the Minister’s submission that at [6] the Tribunal “squarely” addressed, in the sense of considering, engaging, or taking the submission into account, in assessing the credibility of the applicant’s evidence and claims.
Two, at [23] (CB 266) the Tribunal was said to have engaged in such an assessment:
“…In coming to this conclusion, the Tribunal is sensitive to the fact that an applicant coming from a Muslim country and one who claims to have suffered trauma and torture may be highly reticent to make claims regarding their sexuality. However, despite the applicant's explanations, the lateness of his claims regarding his homosexuality raised concerns regarding the veracity of those claims and the truthfulness of the applicant as a witness. In addition, during the hearings the applicant gave contradictory and confusing responses in his evidence and at times changed his evidence as the hearings progressed. In addition, the applicant gave evidence that was at times implausible and the Tribunal could not accept as satisfactory explanations in support of his claims.”
Three, at [31] – [33] (see CB 267 – CB 268):
1“[31] The Tribunal acknowledges that this discrepancy is on a small matter of detail and that there is potential for confusion an inconsistency in recounting precise details of events, particularly those that occurred over an extended period. Nevertheless, there emerged a pattern of inconsistent evidence from the applicant. The Tribunal draws some limited weight as a result of the inconsistencies, considered cumulatively with other more significant credibility concerns.” (At CB 267). [Error in the Original.]
2“[32]…The Tribunal commented that he appeared to have a clear recollection about what had occurred. He responded that initially he didn't recollect what had happened, but after he was at the hospital he tried to remember the details and he now remembers very well.” (At CB 267).
3“[33] The Tribunal asked the applicant why his written statement provides a different account of the incident quoting his written application:
“They kept swearing at me but did not say why they were attacking me. A few other students saw this happen to him. A few of the other people came closer and as they approached the assailants the assailants fled the scene.
He managed to get back into the car and though I was in pain drove quickly to the nearest police station”14.
In response to the Tribunal's question regarding the inconsistency, the applicant stated that he was unable to drive. The Tribunal indicated to the applicant that it was concerned by the inconsistencies between his oral evidence and his written statement.” (At CB 267 – CB 268). [Footnote Omitted].
What emerges here is that the Tribunal certainly made clear to the applicant its concerns about the inconsistencies in his account of past events and the applicant’s capacity to recollect certain events at the hearing which he had earlier not remembered. For example, the applicant’s delay in making claims said to arise from his sexuality (see [23] at CB 266).
However, none of this engages with the submission made by the applicant’s representative, on which the applicant’s proposed ground now relies, nor the reports on which that submission was based.
On the only available evidence before the Court, the matter of the applicant’s mental health was discussed at the hearing before the Tribunal.
It is clear that at the second occasion of the hearing, the applicant and his representative understood that the Tribunal had significant concerns about the applicant’s inconsistent evidence, and indeed the delay in making his claim to fear harm because he was a homosexual (see [36] – [37] at CB 268 to CB 269).
After a short adjournment during the hearing, the applicant returned and attempted to explain the “apparent contradictions” in his evidence by now claiming he had “self-diagnosed” as suffering from “ADHD” and “OCD” ([37] – [39] at CB 268 – CB 269).
The Tribunal rejected this explanation. The Tribunal’s reasons for doing so were reasonably open to it and were logically probative of the evidence before it ([39] – [40] at CB 269).
However yet again there is nothing to indicate that the Tribunal gave specific consideration to the submissions of the applicant’s representative of 15 March 2017, and the reports on which it was based, in the consideration referred to above.
The only part of the decision record (other than [6] at CB 262) that makes reference to the applicant’s representative’s submissions is at [25] – [27] (at CB 266) of the Tribunal’s decision record. (See [73] above).
In his submissions to the Court the Minister did not refer to this part of the decision record until the Court asked the Minister’s solicitor to explain what the Tribunal was seeking to do, particularly at [27] (CB 266). It is to be remembered that these paragraphs appear under the heading of “Mental health issues”.
While there is a reference to the applicant receiving counselling: “…two to three weeks after he arrived in Australia”, it could not have been a reference to the report from the particular counsellor at the Asylum Seekers Centre as referred to in the representative’s submissions. The applicant arrived in Australia on 6 March 2014 (CB 16). The counsellor’s report states that the counselling she gave the applicant commenced on 18 August 2014 (CB 85), which is more than “two to three weeks” after he arrived in Australia.
Nor is there a reference to the psychiatrist, or the report she provided dated 9 September 2014. At [26] (CB 266) the Tribunal referred to a “psychologist” that the applicant says he consulted in 2015.
In short, although the Tribunal made a reference to the representative’s submissions submitted after the interview with the delegate, there is no reference whatsoever to what were the substantial references in the representative’s submissions to the two above mentioned reports.
The only possible reference to the authors of the two reports mentioned in the representative’s submissions was at [27] (CB 266) where the Tribunal stated that it: “…was prepared to accept that the applicant consulted a number of mental health practitioners in 2014 as outlined in submissions”.
There is no reference to the substance of those reports. Nor to the single most important part of the submissions (relying on the reports) as explained elsewhere in this judgment.
The Tribunal’s conclusion, as expressed in the last sentence at [27] (CB 266): “…that the applicant’s evidence was not affected in any way by his previous attendance at these counselling sessions” is difficult, in context, to understand.
The submissions, and for that matter, on the evidence, the applicant, made no claim that the applicant feared harm if he were to return to Iran because he attended the sessions.
Nor was the statement (which the applicant’s ground asserts was not considered by the Tribunal) to the effect that the applicant’s evidence, that is, his capacity to recall important events, was affected merely because he attended at those sessions.
Before the Court, when asked to explain, the Minister described this part of the Tribunal’s decision record as “curious”. However it be described, it also does not deal with the substantive argument, or statement, made in those submissions, and as derived from the two above mentioned reports.
What remains, therefore, is that the applicant now argues that his representatives’ submissions contained “…a substantial, clearly articulated argument” (Dranichnikov at [24]). As set out above, the Tribunal failed to respond to this argument in the requisite fashion. On its face, I agree with the applicant that his proposed ground does have merit, in the sense of an arguable case.
It must be said that it may have been possible in this case for the Minister to have argued that the authorities the applicant said he relied upon do not relate to the particular circumstances of the proposed ground, as pleaded.
That is, while the applicant relied on NABE (No 2) and Dranichnikov, both those cases related to a failure to deal with a claim to fear harm, either an express or implied claim.
In NABE (No 2) the heading above [55] makes that plain (“Failure to Deal with a Claim – Express and Implied Claims”), as does the factual context within which the Full Court’s consideration arose.
In that case the submission put to the Court was that the Tribunal: “…failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE…” (at [68]). It was, in that context, that the Full Court set out the relevant understanding that the Tribunal was: “…not required to consider a case that is not expressly made or does not arise clearly on the materials before it” (at [61]).
In short, I respectfully understand that it could be argued that the relevant obligation is to consider an express or implied claim to fear harm, and as that is a basis for the grant of the protection visa.
In NABE (No 2) the Full Court made significant reference to Dranichnikov (see [55] – [57]). In Dranichnikov the High Court considered the case of a Russian businessman which was described by the Full Court as follows (at [55] of NABE (No 2)):
“…In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the applicant’s submissions – namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the applicant’s membership of the group of ‘businessmen in Russia’ was a reason for his persecution.”
It was in that context that the High Court in Dranichnikov at [24] stated what is extracted at [76] above, and on which the applicant now relies.
The submissions in the current case, the “clearly articulated argument” on which the applicant now relies, were not submissions, or an argument, directed to a claim, either expressly made or clearly arising, to fear harm. The submission, and the reports from which it derived, were directed to something different. That is, an explanation for the applicant’s inconsistent evidence and claims in the late presentation of a significant part of his ultimate claim to fear harm.
However, in the current case, the Minister made no attempt whatsoever to raise this argument.
Nor, as set out above, did the Minister ask for an adjournment to properly consider the applicant’s proposed ground and argument. Even during the hearing, after the applicant’s counsel explained the argument and the reliance on those authorities, no attempt was made, even to seek a short adjournment so as to obtain further instructions.
Although, it must also be said, that those who provide such instructions on behalf of the Minister should have realised the basis for the applicant’s proposed ground from the written submissions provided by the applicant, prior to the hearing.
The Minister’s response to the applicant’s ground, and the argument in explanation of it, assumed, if not accepted, the correctness of the applicant’s reliance on what was said in NABE (No 2) and Dranichnikov, and its claimed relevance to the current circumstances of this case.
Further, it may have been possible for the Minister to have argued the following. In the current case also the applicant was given every opportunity by the Tribunal, within the relevant statutory regime, to present and explain his claims to fear harm if he were to return to Iran. After all, the Tribunal gave the applicant the opportunity to appear at the hearing, which he did, on separate occasions.
The Tribunal’s decision record, other than for [27], was comprehensive of the applicant’s claims to fear harm. Its adverse credibility findings were all reasonably open to it, and for the logical and probative reasons it gave.
There was no denial of procedural fairness. The applicant, and his representative, well understood the deficiencies in the applicant’s various iterations of his claims, and their presentation, from what the Tribunal reportedly told them. (See for example [75] and [76] at CB 275, on the issue of the applicant’s claimed homosexuality, and the applicant’s explanation for the late production of this claim).
Nor did the applicant before the Court seek to take issue with any other part of the Tribunal’s reasoning, other than what is set out at [25] – [27] (at CB 266).
It may have been open in the circumstances for the Minister to have argued that given the many opportunities the Tribunal gave the applicant to explain his claims to fear harm, including the late presentation of the significant claim that he feared harm for reason of his sexuality, and the opportunities to explain his inability to give a consistent and coherent account of past events, and of his claims to fear harm, the absence of any satisfactory specific reference to the written submissions and the two reports, was not material to the outcome, and therefore no jurisdictional error could be, or was, revealed (with reference to Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34).
Again, no such argument was satisfactorily raised in response by the Minister.
I have taken the view that given the adversarial nature of the current proceedings, and the fact that both parties were legally represented, that it is not for the Court to make out the Minister’s response for him, even in circumstances where, other than for [27], the Tribunal was comprehensive in the assessment of the applicant’s claims and credibility.
The ground as pleaded, and the argument in explanation of it, in the circumstances set out above, and in light of the Minister’s response, does have merit for the reasons set out above. I accept the applicant’s argument that the Tribunal did not consider, in the asserted requisite sense, the argument put forward in the applicant’s representative’s submissions of 7 October 2014.
Before the Court the Minister also submitted that he had not had sufficient notice to warrant leave being granted for the amendment to the application to the Court. It was not clear whether this was an attempt to argue that the Minister claimed prejudice if the leave were to be granted.
In any event, whatever the object of the submission, if the Minister believed, contrary to the position otherwise clearly expressed to the Court, that he was not in a position to properly respond to the ground given its “late” production, then it was open to the Minister to have sought an adjournment of the hearing, or even the opportunity to make further written submissions. He did not ask for either of these.
Conclusions
Given that the proposed ground has such merit, and given that, on the unchallenged evidence, the applicant has provided a satisfactory explanation for the, albeit, very late filing of the proposed amended application, leave should be granted to the applicant to proceed by way of this ground. This is in circumstances where, although the Minister argued that the late production of the ground meant he did not have sufficient notice to respond, the lack of sufficient notice could have been addressed by the Minister. The fact that he did not elect to do so cannot weigh against the grant of leave. I will make that order.
At no point during the hearing, or in the 24 hours prior to it (or for that matter, since), has the Minister made any request that if the Court were minded to grant the leave, the Minister wanted a further opportunity, by way of adjournment of the final hearing, or otherwise, to make further submissions.
To the contrary the hearing proceeded, and concluded, on the basis that the Minister’s complete answer to the applicant’s ground was that the Tribunal had considered and dealt with the submissions of 7 October 2014, and that the applicant had not provided a satisfactory explanation for the late production of his ground.
For the reasons set out above, the applicant’s ground, as argued, and in light of the Minister’s actual response, is made out. In all the circumstances there is no reason not to grant the substantive relief that the applicant seeks. I will make the appropriate orders.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 8 July 2020
0