MZWLP v Minister for Immigration
[2005] FMCA 492
•20 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWLP v MINISTER FOR IMMIGRATION | [2005] FMCA 492 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
Migration Act 1958 (Cth)
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Fuduche v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
Sellamuthu v Minister for Immigration and Multicultural Affairs [1998] FCA 1423
| Applicant: | MZWLP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 736 of 2004 |
| Delivered on: | 20 April 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 16 February 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Condliffe |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the respondent's costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 736 of 2004
| MZWLP |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter claims to be a citizen of Palestine. He arrived in Australia on 10 February 2001. On 22 March 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 1 May 2001 a delegate of the minister refused to grant a protection visa. On
9 May 2001 the applicant applied to the Refugee Review Tribunal (‘the RRT’) for a review of that decision.
Background
The RRT member held two hearings in the matter. On the first occasion the applicant collapsed and the hearing was adjourned. That hearing took place on 11 December 2003. The RRT, shortly after that, received a medical report from a doctor who attended upon the applicant the day of his collapse at the RRT hearing, who advised that he believed that the collapse was a result of post‑traumatic stress syndrome and that he had advised the applicant to attend upon a psychiatrist for further counselling and treatment.
The RRT member convened a further hearing on 18 March 2004. This was on an occasion after the applicant had had time to obtain a psychologist's report, which was dated 10 March. I note that in the decision of the RRT member at page 14 the date is listed as 18 March 2003. This is clearly a typographical error, with the dated being 18 March 2004.
The psychologist's report provided by the applicant was relatively brief, running for only a little over two pages. The relevant part stated:
In summary, in my opinion MZWLP is suffering chronic post‑traumatic stress disorder with panic attacks and associated depression due to a long history of actual injury and realistic threat of serious physical injury or death to himself and his family.
At the hearing of this matter it was conceded by counsel for the applicant that the applicant's versions of events upon which he relied to show that he had a well‑founded fear of persecution were internally inconsistent and self‑contradictory. The RRT member, not surprisingly, rejected the applicant's versions of events. The RRT rejected the applicant's versions of events on two bases: First, the RRT concluded that "the published information from a range of sources" was inconsistent with the versions of events given by the applicant. That is, the general nature of the applicant's claim was that he was subject to persecution as a result of the followers of Arafat or Hamas attempting to pressure him to join them as a member. The country information available to the RRT member did not support this proposition. That country information had been provided to the solicitors for the applicant prior to the hearing, as is confirmed on page 29 of the decision by the RRT member.
Secondly, the RRT member rejected the evidence of the applicant as a result of its inconsistencies and contradictory nature. In determining whether or not to accept or reject the applicant's evidence the RRT member relied on the observations of him and consideration of the inconsistencies and contradictions in his evidence and the psychologist's report. The RRT member stated:
The tribunal is bound by the decision of the Federal Court of Australia in Fuduche v Minister (1993) 117 ALR 418 to accept the uncontradicted opinion of the psychologist, whose report is set out above, that the applicant suffers from post‑traumatic stress disorder.
This statement, if read alone, appears to place the comments of the court in Fuduche a little higher than is appropriate if the decision in that case is read as a whole. The reference appears to be a reference to an often‑quoted passage from Fuduche v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 where Burchett J said :
Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision‑maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own ...
That comment must be taken in the context of the particular decision where the RRT member had accepted all of the factual matters upon which the medical opinion was based and had rejected the opinion of the medical expert in favour of a theory of the RRT member’s. This case is a little different, and it appears that the RRT member was aware of the distinction, if one has regard to the comments made at page 18 as follows:
The solicitor said that the applicant has provided medical evidence to prove that his symptoms were consistent with his claims. The tribunal pointed out to the solicitor that whilst it was required to accept an expert opinion in relation to diagnosis the psychologist was not in a position to make findings regarding whether or not the applicant had been persecuted or would be persecuted in the future.
I have regard to the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272):
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
In the circumstances it appears clear to me that the RRT member appreciated the distinction between the medical opinion and the findings of fact upon which it would need to be based and the different findings ultimately relevant to the RRT decision.
The RRT member, in making an assessment of the applicant's credibility, went on to state as follows:
The tribunal has considered whether the inconsistencies and implausibilities in the applicant's testimony can be explained by the fact that he is suffering from a post‑traumatic stress disorder. The tribunal accepts that a person who has experienced traumatic events and/or persecution may have difficulty remembering details of those events, may be genuinely confused about dates and times that traumatic events occurred, and may be unwilling or unable to speak about those events. It also accepts that an applicant may deliberately tell untruths about certain aspects of their experiences whilst still having a well‑founded fear of persecution. The tribunal has had regard to comments in a recent article regarding the manner in which this tribunal assesses credibility, and the conclusion of the author that the tribunal often unreasonably judges an applicant's overall credibility on the basis of inconsistencies about peripheral facts and subsequent changes or additions to the applicant's account (Guy Coffey, "The Credibility of Credibility Evidence at the Refugee Review Tribunal"; International Journal of Refugee Law, volume 15, number 3 2003).
Despite this, the tribunal cannot accept the applicant's account that either Hamas or supporters of former president Arafat have sought to forcibly recruit him to their respective organisations in the way he claims. The inconsistencies referred to above regarding the applicant's whereabouts, his marital status and his contact with his family are not peripheral to his claims. They form the background against which the possibly of his claimed experiences of persecution having occurred must be assessed. If the applicant was living in the West Bank, with only occasional visits to the family home in Gaza (as the initial protection visa application stated, and the applicant said at the hearing), then the claim that he was attacked at the family home in Gaza on two occasions in 1998 and on several occasions in 2000 is implausible. If these groups knew enough about him to try and force him to join them, then they would be expected to know where he was living, and would be expected to approach him there. It is too coincidental that they happen to find him at his parents' home on occasions that the applicant claimed he was attacked, but were unable to find him at home in the West Bank despite (according to his statement at the second hearing) that they had made visits there, knowing where he lived. If either group was interested in him to the extent claimed, then they surely would have known where he was living at particular times.
Some of inconsistencies concern matters of fact that are totally unrelated to the claimed events of persecution; for example, the dates of his relationships with his two wives, whether or not he was in fact married to his second wife or only engaged, and whether or not he undertook any further studies after completing his university course. The tribunal cannot accept that mistakes or inconsistencies of this kind can be explained by the applicant suffering from post‑traumatic stress disorder.
As noted above the claim that Arafat supporters and/or Hamas use violence to recruit members is not supported in any way by the objective country information regarding the activities of these groups. There is a plethora of country information stating that Hamas recruits volunteers as a process of persuasion and education, targeting young, usually single men who are religiously observant and attend the mosque frequently, and that there are many willing volunteers.
The RRT member goes on to state that the Human Rights Watch report did report recruitment of children, which was deemed to be forced recruitment because of the young age of the children. However, there were no reports of forced recruitment of adults.
As a result the RRT rejected the claims of the applicant in concluding that he had neither suffered serious harm in the past nor had any real chance of suffering serious harm in the future, for convention reasons.
Applicant’s Grounds
The applicant sought to challenge the decision of the RRT on the basis of a claim that the RRT failed to accord the applicant procedural fairness in assessing his claims. The applicant particularised his claim as follows:
Particulars
(a)The RRT failed properly to inquire into the applicant's case. Having decided that it was bound to accept the applicant was suffering from post‑traumatic stress disorder (PTSD) the RRT had a duty to seek further psychological and medical evidence as to whether the post‑traumatic stress disorder inhibited the applicant's ability to recall events, as this was not a matter commented upon in that report.
(b)By doing so the RRT failed to act in accordance with substantial justice and merits of the case in that it opined that certain inconsistencies in the applicant's case can be explained by PTSD and others cannot. It did this without any evidence to support such an assumption.
(c)Its conclusion that it rejected the applicant's claims because they were "internally inconsistent, self-contradictory, and has varied considerably in various accounts…" [CB 133] were therefore not rationally supported by probative evidence and the RRT failed to consider rationally the probative evidence that was before it.
The applicant made submissions that:
However, in this case the tribunal proceeded, in effect, to make its own conclusions about the applicant's mental condition based on the deficient materials before it. Whether it was a correct diagnosis and therefore a correct conclusion seems to have been entirely a matter of speculation. What the incidence and relevance of PTSD were to the case was a matter for evidence, not assumption. It appears unsatisfactory for the tribunal to accept without question a psychological report (not a medical or psychiatric one) and then to proceed on the basis of that diagnosis, to reach its own, unsupported, conclusions concerning the impact of that condition (assuming it to apply) on the applicant, his competence to give evidence at the time; and the effect of any psychiatric condition from which he then suffered might have had on his ability to recall and express events and traumas to which he had earlier been subjected.
In this case the report of the psychologist left a lot to be desired in terms of its detail and discussion. The report did not identify all of the facts and circumstances that would need to be relied upon for a proper diagnosis of chronic post‑traumatic stress disorder, nor does it set out the criteria that would need to be applied (as provided for in DSM-IV). Rather, the report sets out a brief summary of what the report-writer was advised by the applicant and makes that bald statement that he is suffering chronic post‑traumatic stress disorder. The report is such that it appears to me than an RRT member would have been justified in having reservations about accepting the terms of the report, as the report‑writer has not set out sufficient information to justify the views provided in the report.
This appears to be a case which is factually different to that discussed in Fuduche. In any event the RRT member accepted that the applicant suffered from post‑traumatic stress disorder, in accordance with the applicant's submissions at the second hearing before the RRT (when the applicant was represented by a solicitor). It would not be appropriate for the applicant to now make any complaint with respect to that particular finding of the RRT member as it was a finding promoted by the applicant as part of his case and is based upon the evidence of this psychologist, despite the weaknesses that are apparent in the report.
The issue that must be determined is whether or not the RRT had a duty to then seek further psychological or medical evidence as to whether or not the post‑traumatic stress disorder inhibited the applicant's ability to recall events. Significantly, the applicant, at the time that the report was tendered and the subsequent hearing, was represented by a solicitor and did not seek to place before the RRT member any other evidence from a psychologist or a psychiatrist either dealing generally with the potential effects of PTSD upon recall or dealing with the PTSD on recall specific to the applicant.
Similar issues have arisen in other cases. In Sellamuthu v Minister for Immigration and Multicultural Affairs [1998] FCA 1423 Hely J considered a case involving findings of credibility against an applicant in the RRT. In that case the applicant was said to be suffering from post‑traumatic stress disorder. There were two psychologist's reports that were before the RRT member. His Honour said:
As I understood the submission put it was to the effect that RRT should have obtained expert assistance from a psychologist as to whether the detailed but inconsistent accounts which the applicant gave of his history were explicable on the basis of post‑traumatic stress disorder ...
However, RRT appears to have explicitly raised with the applicant at the hearing (at which his solicitor was present) its concern that the applicant was repeating more or less word for word what was in the statutory declaration, rather than responding to questions (p.11) and its concern as to the unexplained discrepancies in the detailed accounts of his history between those contained in the original application and those given later.
Mr O'Sullivan saw the applicant after the hearing and one of the purposes of his being consulted was to express an opinion as to the effects of trauma on memory. All that Mr O'Sullivan said on that topic was that impaired concentration and perceived memory loss were well know sequelae of trauma …
This is not a case in which there is some obscurity raised by the evidence which enlivens a duty on the part of RRT to make further inquiry. Rather it is a case in which unsatisfactory aspects of the evidence were raised by RRT at the hearing, in relation to which the applicant failed to provide a satisfactory response.
In that case the application for judicial review was dismissed.
The issue has also been discussed in some detail in a recent case in the High Court, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32. That case concerned a citizen of Iran who was seeking a protection visa and who also suffered from post‑traumatic stress disorder. Gleeson CJ said:
[15]Senior counsel for the respondent, in this court, expressly, and correctly, disclaimed any suggestion that there was a denial of procedural fairness in failing to give the respondent an opportunity to add to the substantive evidence in support of his claim by obtaining an opinion from a psychologist to the effect that he had been a victim of violence. Quite apart from the dubious reliability and relevance of any such opinion, and the possibility (adverted to by the tribunal) that the respondent had been traumatised since arrival in Australia, there was no request by the respondent’s adviser for the respondent to have an opportunity to present further information to the tribunal in support of his case. In any event, that is not the way in which the argument in this court was put. The complaint is about the failure to seek a second opinion on the matters about which the Woomera psychologist had reported.
Gleeson CJ went on to explain (at [9]) that the applicant in SGLB suggested two things: the first being that if the applicant was suffering from PTSD that would explain his inconsistencies in earlier information that he had provided in relation to his application for a visa (which the RRT was willing to accept would result in the inconsistencies not being held against him); and secondly, that a further assessment may have provided evidence that he had in fact been seriously harmed before he came to Australia, which would be evidence to assist in proving his case. His Honour rejected these contentions.
Hayne and Gummow JJ specifically addressed the contention that the RRT had erred in making findings as to the credibility of the respondent. With respect to evidence as to the effect of PTSD on credibility their Honours said as follows:
[42]The second ground of alleged error amounts to a finding by Selway J that the Tribunal was under a duty to inquire as to the effects of PTSD. This is apparent from his Honour's judgment [14]:
"But, having found that the [respondent] was suffering from PTSD there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence." (emphasis added)
[43] This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report[15], the Act does not impose any duty or obligation to do so. Rather, s 426[16] provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
[44] As was noted in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[17]:
"The Tribunal was required by s 430 of the Act to prepare a written statement setting out its decision on the review, 'the reasons' for that decision and 'the findings on any material questions of fact', and referring to 'the evidence or any other material' on which those findings were based."
This obligation required that where two conflicting accounts were before it, the Tribunal was to determine which it accepted. Thus, after accepting that the respondent's ability to give evidence may have been impaired, the Tribunal went on:
"As to whether his current condition is a consequence of Convention-related events in Iran, (rather than during his period of over two years in detention in Australia, for example), it is for the Tribunal to make findings on the events which [the respondent] claims led to his decision to leave Iran."
That is to say, while the Tribunal was prepared to take the respondent's claims at their highest, namely, as last described in the oral evidence (at hearing) and written evidence (by affidavit after the hearing), where there was a conflict the Tribunal was nevertheless bound to decide between those inconsistent accounts. Indeed, this is borne out by the example given by Selway J in support of this alleged error[18]:
"For example, the Tribunal found that [the respondent's] first version of where he was living immediately prior to leaving Iran was true, and the later version untrue. The Tribunal analysed the issue in this way:
'These two assertions as to his whereabouts in the months leading to his departure from Iran are entirely irreconcilable, and he has not provided any explanation as to why they differ. I consider untrue his claim to have been in hiding throughout his last six months in Iran. I am satisfied that he was living at his family home throughout that period. It follows, and I am satisfied, that he was not detained again by the authorities because they did not wish to detain him. It also follows, as he willingly remained at his family home where he could be readily located by the authorities, that he did not fear arrest.'"
At the hearing, the respondent gave evidence that he had spent the last six months before leaving Iran living at his family home. In contrast, when invited to give further evidence in writing after the hearing, he claimed that he had spent that time in hiding. Thus, disregarding all accounts given by the respondent prior to the hearing, the Tribunal was still required to make a factual finding.
Importantly, their Honours also dealt with another proposition, which was that there was no evidence in that case upon which the RRT could be satisfied the applicant suffered from PTSD. In this regard their Honours said:
[40]…The finding of PTSD was in fact beneficial to the respondent, being offered as the most favourable explanation available for the respondent's conflicting accounts. In any case, there was material before the tribunal which allowed it reasonably to infer that the respondent was suffering from PTSD.
As a result the High Court rejected SGLB’s claim for judicial review.
In this case the RRT member has, apparently without specific evidence, accepted that that PTSD may go to explain some of the inconsistencies and variations in the versions of events given by the applicant. The member’s analysis shows that she sought to look at events that were directly related to trauma and events that were not so directly related to trauma.
This form of analysis appears to flow from comments made by Mr Coffey in the article that the member referred to earlier in her decision. At page 388 of the article Coffey states:
The applicant's mental state may have also affected their ability to disclose the relevant evidence, especially among applicants who are survivors of severe trauma. A reluctance of trauma survivors to disclose trauma, especially in unfamiliar settings, and the disturbance in memory that can affect such people to varying and fluctuating degrees is well documented.72 Given the range of possible reasons for delayed disclosure it is of concern that the tribunal sometimes draws with apparent alacrity adverse conclusions on the basis of the inconsistencies in the applicant's account. Such conclusions were drawn irrespective of whether the latter's submission contradicted or supplemented the earlier claims, and sometimes also regardless of whether the inconsistency was with respect to central or more peripheral claims. In taking this approach, the tribunal appears to take its cue from the doctrine of "recent invention". The delayed disclosure of information salient to a claim of persecution when that information is based on a life‑threatening experience, or the inability of a survivor of trauma to recall at all various peri‑traumatic events, should not give the tribunal cause to draw adverse inferences without exercising considerable caution.
The author of the article footnotes references, including a reference to a text Herman, Trauma and Recovery (1992) in footnote 72:
It is axiomatic in the understanding of severe psychological trauma that a survivor will often not be able to provide a full account of traumatic events during initial interviews. This may be due to partial or complete amnesia for the events, intense distress associated with the recollection of those events, and a lack of trust and sense of safety in the context of the interview. Recalling traumatic events is an act of reconstruction, and the account provided will evolve over time. For a general introduction to this area, see Judith Herman, Trauma and Recovery (1992).
In this case, had the RRT member acted without regard to the potential impact of the post‑traumatic stress disorder, it appears clear that a more negative view would have been taken of the applicant's evidence and that in this regard it can be said that the RRT's consideration of the potential effects of the PTSD was favourable to the applicant. In such circumstances this does not properly found a basis for judicial review.
The real gravamen of the applicant's case is that the RRT member ought to have obtained more information about the potential effects of PTSD as this may well have explained all of the inconsistencies in the evidence of the applicant.
The first difficulty that this submission presents is that it would impose upon the RRT an obligation to seek out further evidence. In SGLB Gummow and Hayne JJ conclude that such a claim failed for two reasons: first, in that case there was material before the RRT to assist it in determining how to deal with questions of unreliability; and secondly, section 427 of the Migration Act, whilst conferring a power to obtain medical reports, does not impose a duty to do so. In SGLB the Turner report, which appears to have been the only evidence of the impact of PTSD on the ability to recount the events, was referred to in the judgment of Callinan J as follows:
[111] The adviser also referred to extracts of a report entitled "Discrepancies and Delays in Asylum Seekers" by a psychiatrist, Stuart Turner (the Turner report). That report suggested that persons suffering from post‑traumatic stress disorder (PTSD) may have difficulty in immediately providing a coherent narrative of events. It was suggested by the adviser that the respondent might be suffering from PTSD.
Such information is not dissimilar to the material contained in the article by Coffey, who is described as a clinical psychologist holding bachelor of arts and master of arts degrees.
In the circumstances I am not satisfied that the RRT was obliged to seek out further evidence as to the potential impact of PTSD upon the credibility of the applicant. The RRT acted upon the material that was placed before it, and if anything provided the applicant with a benefit over and above what might have been strictly available upon a close analysis of the actual evidence before the RRT.
I also note that the applicant was given an appropriate opportunity to provide such evidence as he saw fit on this issue and was at the time represented by a solicitor and did choose to place expert evidence before the RRT. At the time that the applicant placed the expert evidence before the RRT his solicitors had already had provided to them copies of the country reports (see page 29 of the decision) and would, one would expect, have been aware of the fact that the general thrust of the applicant's claims were inconsistent with the information in the country reports. There was a proper and fair opportunity to the applicant to place such material as he saw fit before the RRT on this issue.
Even if further information as to PTSD and its impacts would have left the RRT in the position of being unable to draw a negative inference against the applicant on a matter of credit the RRT would nonetheless be unable to draw any positive inference, and therefore have to resort to a comparison of the general thrust of his claims against the country information. As can be seen from the decision that was made the RRT was not prepared to accept even the general thrust of the version of events relied upon by the applicant because it was inconsistent with country information.
The obligations of procedural fairness upon the RRT require it to give applicants a fair opportunity of putting their case and give appropriate consideration to the material placed by an applicant. In this case such an opportunity was given to the applicant, who had the benefit of legal advice and representation. The applicant chose what material to place before the RRT. In the circumstances I am not satisfied that a reviewable error has been disclosed in this regard.
As a result I therefore find that the applicant's claim fails and that the application ought to be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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