MZXDH v Minister for Immigration
[2006] FMCA 656
•11 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXDH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 656 |
| MIGRATION – Review of RRT decision − where Tribunal found applicant not to be credible − where RRT questioned competency of applicant on basis of mental capacity − whether jurisdictional error occurred when Tribunal reconstituted − whether jurisdictional error occurred by Tribunal reducing time given to applicant’s oral evidence − whether Tribunal has power to control its own proceedings − whether Tribunal has duty to enquire − whether Tribunal has duty to corroborate evidence of its views of the applicant’s mental condition. |
| Migration Act 1958, ss.422, 422A, 427 |
| Liu v Minister for Immigration (2001) 113 FCR 451 M17/2004 v Minister for Immigration (V543 of 2004) (2005) 85 ALD 597 NAIS & Ors v Minister for Immigration (2005) 223 ALR 171 Minister for Immigration v SGLB (2004) 207 ALR 12 SZATG v Minister for Immigration [2004] FCA 1595 VCAK of 2002 v Minister for Immigration [2004] FCA 459 Hong v Minister for Immigration [2004] FCA 1308 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | MZXDH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG1180 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 April 2006 |
| Date of last submission: | 27 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Mr R Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1180 of 2005
| MZXDH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the United States of America. He first arrived in Australia on 13 February 2001 on a business visa. He departed Australia on 21 October 2002 for New Zealand but re-entered Australia a week later. On 16 April 2003 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 10 June 2003 a delegate of the Minister refused to grant a protection visa and on 8 July 2003 the applicant applied for review of that decision. On 28 April 2004 the Tribunal wrote to the applicant advising him that it was unable to make a decision in his favour on the information that he had provided alone and invited him to a hearing on 2 June 2004. The applicant attended the hearing at which time the Tribunal:
“Reiterated the problem with the applicant’s case and noted that his claims were extraordinary and very hard to believe. The Tribunal also noted that the applicant had not provided with Department with a full set of his claims but that he had the chance to provide them to the Tribunal by 23 June 2004.”
On 23 June 2004 the Tribunal received a statement from the applicant which commences at [CB 63].
On 13 October 2004 the Tribunal wrote to the applicant a letter advising him that the member reviewing his case ceased to be a member of the Tribunal on 30 June 2004. As his application for review had not been finalised at that date the Tribunal was reconstituted to another member. The letter continued:
“The Tribunal has listened to the tape recording of the hearing conducted by Mr Thompson on 2 June 2004 and read the material on the departmental file and on the Tribunal file including your post hearing submission. The Tribunal understands that you fear being killed by the Mafia (or criminals or gangs on behalf of the Mafia) if you return to the USA essentially because you refused to join the Mafia twenty years ago. The Tribunal also understands your evidence to be that the American authorities have not denied you adequate state protection for a convention reason but that it is not possible for the authorities to guarantee that the Mafia will not harm you.
The Tribunal is of the view that it has sufficient evidence before it to finalise a decision in relation to your application without conducting a further hearing.
However, prior to doing so, the Tribunal wishes to give you an opportunity to provide any final submissions. In relation to this the Tribunal notes that in the hearing Mr Thompson raised with you his concerns about the credibility and plausibility of your claims and the issue of your mental capacity. The Tribunal shares these concerns as your oral evidence was often confused, unclear and difficult to follow and many of your claims appear unbelievable and implausible. If you or your adviser wish to provide additional submissions or comments on the Tribunal’s concerns or information or documentation about your mental capacity this is to be done in writing and to be received by the Tribunal by 5 November 2005.”
No response was received to this letter. On 31 December 2004 the Tribunal determined to affirm the decision not to grant a protection visa and it handed that decision down on 25 January 2005.
The applicant is a computer programmer by profession who lived in Memphis from 1988 to September 1999 and in Honolulu from December 1999 to February 2001. He claimed that for most of the last twenty years he had been under a death threat from the Mafia because, in circumstances which are opaque, he had refused to join the organisation or assist them. He claimed that there had been many attempts on his life and that he was not offered any assistance by the police forces who he consulted. He claimed that he was required to move around constantly although he appeared to have been in stable accommodation and employment for most of the 1990s. He claimed in particular that he was attacked by a person named Darnell who had failed to obtain a position as a police officer in Detroit. He told of further incidents in Detroit involving a gang known as the “Young Boys Incorporated” and of falling foul of mafia gambling interests because he accurately picked the winner of the 1986 NCA basketball competition. At [CB 119]:
“The Tribunal asked why the Mafia wanted to shoot him. The applicant replied that the bottom line is that he always refused to join the Mafia; they told him he had to join or die. They also want to kill him because he doesn’t pay the money or help them at all.
Asked if he was ever arrested or detained the applicant said he was arrested twice in different places for carrying a concealed weapon but charges were dropped, and once for a driving licence violation.
The applicant claimed that he mainly lived in his car and worked in the morgue in Nashville for about a year during which time he survived a lot of attempts on his life such as shootings and trying to force him off the road. He also survived them in Memphis. He also claimed that he was chased by the Yakuza, and he was attacked in the bank, and he stayed at the airport; once they came to the airport and police arrested 18 people there who were trying to kill him. He survived in Hawaii by living at the airport where there were police and security. On the way out of Honolulu people were going to try and shoot him, and people tried to plant drugs on him when he was leaving for Australia, so that he’d be arrested here. …
The Tribunal put to the applicant that he found his account unbelievable; the applicant agreed that it was incredible but said it was true.”
The applicant also claimed that he was of interest to the CIA who he argued was helping the Mafia. During the course of a lengthy exposition of his claims during the hearing before me I learnt that the applicant believed that a certain person involved in the current “Melbourne gang wars” had declined to complete a contract to execute the applicant after initially accepting. As a result this person was executed either by or on behalf of the CIA. At [CB 123] the Tribunal expresses it concerns about the applicant’s mental health:
“It is clear that the first Tribunal had concerns about the credibility and plausibility of the Applicant’s claims, about the state of the Applicant’s mental health, and in any case, with whether his claims brought him within the Convention. The Applicant’s adviser was present during the Tribunal hearing and this Tribunal is satisfied that the Applicant was capable of, and was given the opportunity, to give oral evidence and present arguments in support of his claims. This Tribunal is satisfied from listening to the tapes, that the Applicant gave oral evidence, presented arguments in support of his claims, responded to the Tribunal’s questions and addressed matters the Tribunal put to him. In addition the first Tribunal gave the Applicant and his adviser three weeks to submit any additional or supporting evidence and/or a medical report on the Applicant’s mental state. Although a medical report was not submitted, nor was supporting evidence, the Applicant provided a further written statement and a dot point summary of all his experiences. As this Tribunal noted in its letters to the Applicant and his adviser on 13 October 2004, it shares the concerns of the first Tribunal, and this Tribunal gave the Applicant and his adviser a further opportunity to provide submissions, or information, or documentation about the Applicant’s mental state. However, nothing was submitted, and even if some sort of assessment of the Applicant’s mental state was submitted, the Tribunal is still left with the claims put forward by the Applicant or that arise squarely from his evidence.”
The Tribunal then went on to explain why it did not accept the applicant as a credible witness:
“As can be seen from the detail of the applicant’s accounts, as set out above, the claims are a series of events in various places in the USA and in Australia over more than two decades involving various people the applicant claimed are either from the Mafia or acting for the Mafia or assisting the Mafia such as the CIA. This Tribunal cannot accept the applicant’s account as factually correct because this Tribunal finds the applicant’s claims totally incredible and without supporting evidence. …Also it was the applicant’s evidence that he spent two weeks in a mental hospital in Chicago and he declined to take medication; this suggests to the Tribunal that other organisations had serious doubts about the applicant’s mental state when he recounted his experiences.”
The applicant submitted a document entitled “Contentions of Facts and Law” dated 17 February 2006 which I take to be his grounds and reasons for arguing that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The first complaint that the applicant makes is in connection with the substitution of the original Tribunal member with the Tribunal member who decided the proceedings. The applicant attempted to suggest that there was something sinister about this substitution and the termination of the original Tribunal’s membership. The applicant supported this view with the sole piece of evidence that he had not been informed about the substitution of Tribunal members until the reconstitution of the Tribunal in October 2004 even though the original Tribunal member had indicated to him on the transcript (a copy of which was provided by the respondent Minister) that he would make a decision within two weeks or a month after some additional submissions which the Tribunal allowed the applicant to make were due to be sent in. The applicant suggested to the court that the original Tribunal member had initially made it clear that he was not going to find in the applicant’s favour but had changed his mind. As a result of that change of mind he was removed from his position. There is no evidence whatsoever to support this allegation and it cannot be accepted.
The structure of the Refugee Review Tribunal as set out in the Migration Act 1958 (the “Act”) and Migration Regulations 1994 clearly allow for reconstitution of the Tribunal in certain circumstances; ss.422 and 422A of the Act. The Act also allows for a reconstituted Tribunal to have regard “to any record of the proceeding of the review made by the Tribunal as previously constituted.” There is no requirement to have a fresh hearing where a Tribunal is reconstituted Liu v Minister for Immigration (2001) 113 FCR 451 at [38-42]; Liu Supra at [44-51]. In this particular case the Tribunal had written to the applicant advising him that it did not propose to have a further hearing but invited him to put forward further submissions. The applicant did not act upon that request. If he had done so then it may well have been that a further hearing would have been held but this court has to look at what actually occurred and not what might have occurred. The Tribunal acted properly and in accordance with the provisions of the Act. There was no jurisdictional error in the manner in which the substitution occurred and was dealt with by the Tribunal.
The next point made by the applicant was that he did not have enough time to explain all the circumstances which led to him having a well founded fear of persecution for a convention reason. He told the court that he believed this would take approximately three days and he was only given a morning. It is clear from the transcript that during the course of the hearing the Tribunal asked the applicant to work out five or six dot points of the major incidents that occurred to him and the hearing was adjourned temporarily for that purpose. It is also clear that the applicant told the Tribunal that the case being made by him was a lengthy one but he did manage to bring it up to date and included incidents that he said involved his life being threatened whilst in Australia. The Tribunal has the power to control its own proceedings: see s.420 of the Act, and remarks of Ryan J in M17/2004 v Minister for Immigration (V543 of 2004) (2005) 85 ALD 597 at [51]). It is not required to be subjected to a filibuster. Obviously, if the Tribunal cuts an applicant short in a manner which indicates that it is not able to consider the whole of that applicant’s claims it takes a risk that it will thereby fall into jurisdictional error. But the requirement of speed in decision-making in s.420 of the Act has been held to be “of a different order” than other aspirations in that section for “fairness and justice”, and default of this provision would not, of itself, constitute jurisdictional error: as per Kirby J in NAIS & Ors v Minister for Immigration (2005) 223 ALR 171 at [75]. Indeed the Tribunal would not be able to achieve its s.420 objectives were it required “to accede to every request made of it”: as per Ryan J in M17/2004 v Minister for Immigration (V543 of 2004) (2005) 85 ALD 597 at [51]. If, as here, it does at all times make the applicant aware of problems with the history the applicant is rehearsing and provides him with an opportunity to put more cogent arguments to it then there will be no error in bringing the proceedings to a conclusion after a reasonable period of time. This is what occurred.
The next complaint made by the applicant was that the Tribunal failed to make its own enquiries about his allegations. The applicant, both before the Tribunal and before the court insisted that it would have been a simple matter for the Tribunal to have contacted the FBI which, he claimed, had regional offices in Australia, and seek from them corroboration of his claims. Although the ability of the Tribunal to obtain additional evidence is enshrined in the Act at s.427 there is no duty to enquire. Minister for Immigration v SGLB (2004) 207 ALR 12 at [43] per Hayne and Gummow JJ and at [124] per Callanan J; SZATG v Minister for Immigration [2004] FCA 1595 at [22] as per Hely J; VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27] as per Crennan J; Hong v Minister for Immigration [2004] FCA 1308 at [20] as per Finn J. It is the applicant’s responsibility to make his own case; Abebe v Commonwealth (1999 Minister for Immigration v SGLB (2004) 207 ALR 12) 197 CLR 510 at [187]. In this particular application concerns were expressed by the delegate and by both members of the Tribunal about the incredibility of the applicant’s story. It could not be said he was given no opportunity to remedy these concerns.
The SGLB case raises a matter which was not alluded to by the applicant but which I believe should be dealt with. In that case the applicant had requested an adjournment a few days before the Tribunal hearing because of his psychological condition. The Tribunal obtained a psychological assessment of the applicant and determined to continue with the hearing. After the hearing the advisor submitted that the applicant had been suffering from post traumatic stress disorder. The Tribunal affirmed the decision of the delegate. On appeal to the Federal Court from a decision of the Federal Magistrates Court upholding the Tribunal’s decision it was found that the Tribunal had erred in failing to satisfy itself that he could take part in the proceedings. On appeal to the High Court the head note explains:
“Per Gleeson CJ, Gummow and Hayne JJ: Nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction.
Per Gleeson CJ, Gummow and Hayne JJ: The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the Tribunal must be convinced before an applicant can take part or continue to take part or continue to take part in proceedings before the Tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead. That is not to deny that the rules of procedural fairness may, in particular circumstances arising in individual cases before the Tribunal, require some special steps or procedures to be followed.”
In the case before me it is clear that the delegate and both members of the Tribunal believed that the applicant might be suffering from some form of psychosis possibly associated with paranoia. All three persons offered the applicant the opportunity to obtain medical reports upon his condition. In each case that was declined. Given the decision in SGLB that there is no duty on the Tribunal to require a medical report the various decision makers could not be said to have acted unfairly. But there is a more important distinction to be drawn. That is that the applicant’s suspected condition did not affect the telling of his story about claimed persecution in a manner that made it incredible. It was his suspected condition that created the story in the first place. There are several occasions on the transcript where the applicant accepts that his story is incredible. For example at T55 the Tribunal says:
“T: Would you – I’m very concerned about this. I think this is unbelievable.
A:You think it’s unbelievable? I think it’s unbelievable too because you haven’t heard a fraction of the stories, because as I say I’ve in two assassination attempts.”
If the whole claim is a product of the psychosis rather than the psychosis affecting the manner in which the claim is made I cannot see how the Tribunal fell into jurisdictional error by taking no steps to corroborate the claim or to obtain corroborative evidence of its views about the applicant’s mental condition. The applicant cannot have it both ways. If he is not suffering from a psychosis then his evidence must be treated on its merits and if, as he agrees, it is unbelievable, then the Tribunal must be allowed not to believe it. If on the other hand the evidence is the product of his psychosis then the Tribunal is entitled to say that it is not the product of a well founded fear of persecution for a convention reason.
The applicant’s address to me dealt principally with his concern about the substitution of Tribunal members and then proceeded to rehearse his claims for protection and indicate why he believed that the Tribunal were wrong not to accept his evidence. This sought impermissible merits review and does not ground jurisdictional error. I provided the applicant with an opportunity to file an affidavit establishing the most recent claims made concerning the Melbourne gangland identities and the C.I.A involvement. No affidavit was filed. In the circumstances I am satisfied there was no jurisdictional error in the way the Tribunal reached its decision. I dismiss application. I order the applicant to pay the respondent’s costs which I assess in the sum of $4,750.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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