MZAGE v Minister for Immigration - [2015] FCCA 2720

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGE v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2720

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – applicant claiming to have converted to Ahmadi faith after arriving in Australia on a student visa – applicant providing an Ahmadiyya initiation certificate – President of Ahmadi association providing letter saying applicant was not a genuine convert and the initiation certificate was not genuine – whether tribunal biased – whether tribunal failed to adequately deal with the mental health evidence – whether tribunal adequately dealt with credibility issues.

Legislation:
Migration Act 1958 (Cth), s.424A

Applicant:

MZAGE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1229 of 2014

Judgment of:

Judge Riley

Hearing date:

3 September 2015

Date of last submission:

3 September 2015

Delivered at:

Melbourne

Delivered on:

3 September 2015

REPRESENTATION

Counsel for the applicant:

The applicant appeared in person

Solicitors for the applicant:

The applicant was not represented

Advocate for the first respondent:

Oliver Young

Solicitors for the first respondent:

Sparke Helmore

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Sparke Helmore

ORDERS

The application filed on 23 June 2014 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1229 of 2014

MZAGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for review of a decision of the Refugee Review Tribunal (“the tribunal”). The applicant appeared before the court today without the benefit of legal representation. The application was filed by a solicitor on behalf of the applicant. However, the solicitor withdrew from the record prior to this matter coming on for hearing on 20 August 2015.
However, on that date another legal practitioner appeared for the applicant but only to seek an adjournment to obtain proper instructions to afford legal assistance to the applicant. On the strength of that application, the matter was adjourned from 20 August 2015
until today. In the meantime, the second lawyer has filed a notice of ceasing to act. Consequently, the applicant appeared today without the benefit of legal assistance.
The applicant is a citizen of Pakistan. He arrived in Australia on
5 July 2006 on a student visa which was valid until
30 September 2008. On 29 September 2008 he applied for a further student visa. That application was refused on 19 February 2010.
The applicant did not have a visa after 30 March 2010. He was detained on 29 September 2010. He applied for a protection visa on
30 September 2010. The applicant’s claims were that:
a.he had converted to the Ahmadi religion while living in Australia;
b.he had a political opinion against the Taliban; and
c.he was a member of a particular social group consisting of western educated people who possess highly valued skills.
The applicant provided three emails in support of his application. The first contained threats against the applicant’s mother and suggested that the applicant’s father was dead. The second email was from his father expressing concern over the applicant’s behaviour. The third email demanded repayment of money. The agent who was initially acting for the applicant said that a more detailed submission would be provided but it was not.
The delegate refused the protection visa application on
17 November 2010. The delegate considered that the applicant’s conversion to the Ahmadi religion was not genuine and considered that the applicant did not genuinely fear harm on that basis.
The delegate considered that the treatment of the Ahmadi in Pakistan did not amount to persecution. The delegate considered that western educated people who possess highly valued skills do not constitute a particular social group in Pakistan.
The applicant applied to the tribunal. The applicant included with his application to the tribunal a further written submission.
The written submission had attached to it a certificate of initiation into the Ahmadi faith.
The tribunal sought a comment from the Ahmadiyya Muslim Association of Australia. The president of the Victorian branch of that association, Mr Javed Safdar Choudhary, responded to the tribunal saying that the initiation document provided by the applicant was not genuine and that the applicant was merely claiming to have converted to obtain a protection visa.
The tribunal invited the applicant to comment on Mr Choudhary’s letter. The applicant’s agent responded in detail more or less admitting that the certificate of conversion was not genuine.
The applicant attended a tribunal hearing on 1 April 2011 and a second hearing on 1 August 2011. The tribunal affirmed the delegate’s decision on 28 October 2011. However, that decision was set aside by the Federal Magistrates Court on 31 August 2012.
The matter was remitted to the tribunal which was reconstituted and conducted a further hearing on 20 March 2013. The applicant provided excerpts from his online blog concerning his spiritual journey in the Ahmadi faith.
The tribunal again wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) regarding Mr Choudhary’s letter saying that the applicant was not a genuine convert to the Ahmadi faith.
The applicant replied with the assistance of his representative. The applicant provided a statutory declaration in which he maintained that he had genuinely converted to the Ahmadi faith even though the declaration that he had previously provided was not genuine.
The tribunal considered that the applicant was not credible and was not a witness of truth. The tribunal considered that there was not a real chance that the applicant would suffer serious harm on the basis of his alleged or possibly imputed Ahmadi faith. The tribunal did not accept that the applicant was an Ahmadi at heart or that he was in the early stages of becoming an Ahmadi or that the applicant had any belief in the Ahmadi faith. For substantially the same reasons, the tribunal was not satisfied that the applicant faced significant harm in relation to the complementary protection criteria.
The tribunal considered that the false declaration of initiation provided by the applicant to the tribunal was a calculated attempt to misrepresent his religion and his involvement in the Ahmadi community in Australia. The tribunal preferred the evidence of Mr Choudhary which included that the applicant was not part of the Ahmadi community and he was not a genuine convert.
The tribunal considered the applicant’s claims about his mental health. The tribunal specifically considered reports that were prepared in relation to the applicant’s time in detention. The tribunal considered that the reports indicated that the applicant’s anxiety and depression were dependent on his detention. The tribunal noted that the applicant said that he might provide a report from a clinical psychologist. However, the tribunal recorded that there was no evidence before it, as at the time of decision, of the applicant’s mental health since his release from detention.
The tribunal, on the basis of its credibility findings, rejected various subsidiary claims that the applicant had made. Ultimately, it did not accept that the applicant faced serious or significant harm if he were to return to Pakistan.
The application to this court was prepared by a lawyer. However, the grounds were not particularised.
The first ground is as follows:
The conduct of the Tribunal Member demonstrated bias against the Applicant resulting in the Tribunal Member not according appropriate weight to the claims of the applicant.
The applicant told the court today that he did not mean that the tribunal was actually biased against him but that a fully informed lay observer might have a reasonable apprehension that the tribunal member might not have brought an impartial mind to the consideration of the applicant’s claims.
The applicant said that this ground was based on the fact that the tribunal referred to his own faith during the course of the tribunal hearing and compared it, in some way, to the applicant’s faith.
The tribunal’s reasons for decision set out much of what occurred at the tribunal hearing. However, there is no reference in the tribunal’s reasons for decision to the tribunal member’s own faith.
The applicant told the court that he had a transcript of the tribunal hearing. He said that it was on an email sent to him by his then migration agent. When invited to send that email to the court so that my associate could print it out, the applicant examined his emails.
He eventually told the court that the email which he thought had a transcript attached to it did not. He maintained that he had the transcript at home.
However, in view of what the applicant has said about this ground, I do not consider that a transcript would assist. Even if the transcript did indicate that the tribunal member did refer to his own faith during the course of the tribunal hearing, that would not, in my view, lead to a reasonable apprehension that the tribunal member might not bring an impartial mind to the determination of this application. The allegation as it was described by the applicant merely appears to have been a statement in passing in relation to the nature of religious belief. It does not seem to me that that, in itself, is indicative of a reasonable apprehension of bias.
The next ground in the application is as follows:
The Tribunal Member denied the Applicant procedural fairness by failing to take into account evidence as to the mental health of the Applicant.
The tribunal set out at paragraph 65 of its reasons for decision its consideration of the applicant’s mental health. That paragraph is as follows:
65. I have considered whether the applicant’s mental health issues have impacted on the applicant’s ability to give evidence or present his case, or would explain some of my concerns. I have studied the health reports from his time in detention in 2010 – 2011 which details complaints of depression and anxiety from the applicant which were assessed as dependent on his time spent in detention. He was prescribed anti-depressants. I have considered the treatment of the applicant whilst he was in detention. I have considered the effect that periods of detention have on the mental health of detainees. At the hearing the applicant confirmed he was no longer in detention. He said that his mental state may make it hard for him to recall things. He said it may impact his ability to articulate things clearly. He claimed to have been diagnosed with Post-Traumatic Stress Disorder (PTSD) and said he may provide a report from a clinical psychologist. At the time of decision there is no evidence before me of the applicant’s mental health state since his release from detention. The applicant has claimed that he has been diagnosed with Post-Traumatic Stress Disorder (PTSD), and this is reiterated in the most recent submission, but apart from his claims, which given my concerns I am unwilling to accept on face value, there is no information of this diagnosis before me, or that the applicant has sought any further treatment since his release from detention. I accept that the applicant was anxious and may have presented symptoms of depression whilst in detention. I accept that the applicant may have been anxious and stressed during the Tribunal hearing. However, the applicant was able to give clear, coherent and detailed information about his past experiences and his claimed faith. He was able, amongst other things, to argue in detail about his views on internal manifestations of faith and what constitutes a person having an internalised system of belief and their relation to a God and their involvement with and adoption of the practices of a religious community. Whilst I have not accepted this evidence as evidence of his adherence to this faith, it demonstrated a sophisticated ability to convey and argue his knowledge. I have no evidence before me that the applicant was suffering any mental health issues at the time of the hearing or since that time. I have no evidence before me that the applicant has been diagnosed with PTSD apart from his assertion and the reiteration of this in the most recent submission. I find that on the evidence before me the applicant is not suffering PTSD, has not in the past, and was not suffering any mental health issues at the time of the hearing. I do not accept that his claimed mental health issues impacted on his ability to articulate in a proper fashion. I therefore do not accept that his mental health, given the evidence before me and his ability to argue detailed concepts with me at the hearing, has disabled or impacted on the ability of the applicant to give evidence or present his case. I find that the applicant was able to effectively participate in the hearing and that he has no mental health conditions which impact on his evidence or my credibility findings. For these reasons I also do not accept that his claimed PTSD or mental health has broadly affected his activities in Australia.
As can be seen, the tribunal said that it had studied the health reports provided from the applicant’s time in detention. The tribunal noted that the applicant’s mental health issues had been assessed as being dependent on his time in detention. The tribunal noted that the applicant claimed to have been diagnosed with post-traumatic stress disorder and said that he may provide a report from a clinical psychologist to that effect. The tribunal further noted that there was no evidence before it relating to the applicant’s mental health at the time of the hearing.
The applicant today said that he had a psychologist’s report. He said that he was not aware whether that report was given to the tribunal
or not. The advocate for the Minister looked at the psychologist’s report. It had a date of 20 August 2015, but the applicant said that that was merely the date when it was printed. The report itself said that it was based on interviews on 14 March 2013, 7 May 2013 and
17 May 2013. The tribunal’s hearing was on 20 March 2013 but its decision was handed down more than one year later on 26 May 2014. Therefore, it is clear that the psychologist’s report post-dated the tribunal’s hearing.
The last interview the report was based on was on 17 May 2013, whereas the tribunal’s hearing was on 20 March 2013. However, the tribunal’s decision was not handed down until 26 May 2014.
There was clearly ample time for the applicant to provide the report before the tribunal’s decision was handed down. However, there is no reason to suppose that the applicant attempted to provide that report to the tribunal.
The tribunal record indicated that there was no evidence of that report being provided. The applicant himself said that he was not aware whether the report was given to the tribunal. I consider, on the evidence, that there is no basis for concluding that the psychologist’s report was before the tribunal but disregarded. From paragraph 65 of the tribunal’s reasons for decision, it is clear that the tribunal took into account the evidence relating to the applicant’s mental health that was before it. I do not detect any error in the tribunal’s handling of
that issue.
The third ground relied upon by the applicant is as follows:
The Tribunal Member denied natural justice to the Applicant by failing to properly apply an assessment as to the credibility of the Applicant.
The applicant explained in court today that this ground was based upon the tribunal member’s comparison of his faith with the applicant’s faith, and the issues surrounding the applicant’s mental health.
The applicant claimed that these matters were not considered properly and, therefore, he was not afforded natural justice.
It seems to me that there was nothing untoward in the tribunal member referring to his faith in the course of the hearing. The issues about the applicant’s mental health appear to have been properly dealt with. Credibility in general is a matter entirely within the purview of the decision-maker. I am unable to detect anything in this case which indicates that the tribunal’s assessment of the applicant’s credibility was flawed in a way that would amount to jurisdictional error. I am not persuaded that the tribunal failed to give natural justice to the applicant.
The applicant was also invited to say anything in addition to the grounds in the application. He said that the tribunal had been constituted four times and he felt that his mental health had limited his ability to properly convey his case to the tribunal, so he wanted another opportunity to explain himself.
I do not accept that the tribunal erred in relation to the applicant’s mental health. If the tribunal was constituted four times that is unfortunate. But that in itself does not warrant the matter being remitted to the tribunal for a further hearing.
All in all, I am not persuaded that there was any jurisdictional error made by the tribunal in this case. The application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 6 October 2015