MZYHS v Minister for Immigration
[2010] FMCA 417
•23 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYHS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 417 |
| MIGRATION – Alleged jurisdictional error – failure of RRT to consider properly expert psychological evidence – matter remitted to RRT. |
| Migration Act 1958 (Cth) |
| SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 VMAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 21 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | MZYHS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 128 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing date: | 13 May 2010 |
| Date of Last Submission: | 13 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr W. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 5 January 2010.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine the application for review according to law.
The First Respondent pay the Applicant’s costs fixed in the amount of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 128 of 2010
| MZYHS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant’s amended application seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) made on 5 January 2010. The applicant says that the Tribunal fell into jurisdictional error in the way in which it dealt with both a report from his treating psychologist and a medical record from a hospital in Bahrain. He further says that the Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds or probative material.
For the reasons that follow, I think that the first ground is made out but the others are not.
Relevant Facts
The applicant is a citizen of Bahrain who arrived in Australia on 9 May 2007 and applied for a protection visa on 20 June 2007. The application has been the subject of two Tribunal decisions, the latter of which is the subject of this application. It is not necessary to traverse the interim hearings further.
The applicant’s claims spring essentially from the fact of his being a Shiite Muslim, with a history of alleged activism and resultant punishment by the authorities.
Perhaps the most significant of the various claims that the applicant made was that he had been arrested in 1996 following a demonstration and detained for 14 months. During this time, he asserted that he was raped and otherwise abused.
The applicant said he remained under surveillance after his release for three months and was ultimately again arrested in 2002 and detained for four days following another demonstration.
He said he was subsequently prevented from obtaining work, but had been employed since 2004.
On 21 May 2006, the applicant applied for a visa to Australia which was granted on 31 May 2006.
Notwithstanding this visa, he did not leave until May 2007.
He said that on 15 April 2007 he was involved in another demonstration in Karzakan and that he was beaten and attacked with tear gas and knocked unconscious and taken to hospital. The medical records to which I have referred in the introduction, it was said, arose from this hospitalisation.
The applicant provided to the Tribunal a report from Andrea Stewart, Co-ordinator North West Generalist Team of Foundation House. The report appears to have been prepared in October 2009 and although
Ms Stewart does not set out her qualifications, there seems to be no dispute that she is a Psychologist competent to provide the report that she did.
At the commencement of the report, Ms Stewart said this:
“This brief report is provided in response to a request by the Refugee and Immigration Legal Centre for a statement and opinion regarding the wellbeing of (the applicant). This document provides an overview of my assessment and therapeutic engagement with (the applicant) to date.”
It should be noted that the report sets out, as facts, the various assertions made by the applicant as to his treatment in Bahrain. No qualification of any sort is made by Ms Stewart as to whether or not the events, as described by the applicant to her, were true or otherwise. Nonetheless, it would, in my opinion, be fair to say that the report from Ms Stewart would on any view be reasonably interpreted as saying, at the very least, that the mental state exhibited by the applicant was consistent with post-traumatic stress disorder consistent with the treatment he alleges.
The Tribunal said but little about Ms Stewart’s report in the Reasons for Decision. At paragraph 34, the receipt of the report was noted. At paragraph 41, the Tribunal dealt with not only Ms Stewart’s report, but various other psychological reports submitted on the applicant’s behalf.
It is perhaps important to note that that paragraph itself followed earlier consideration by the Tribunal of the applicant’s claims. At paragraph 40, the Tribunal said:
“The Tribunal does not accept that the applicant was detained, either in 1996 or in 2002. The two events and the claimed occurrences in the period in between, where the applicant claims that he was under constant surveillance, do not sit well together. The applicant claimed in his statutory declaration dated 6 August 2007, that when he began to recover from imprisonment he started sticking pictures of assassinated activists to walls and spraying slogans; yet he came to no harm until he attended a demonstration in 2002 and having been arrested he, despite his claimed history, was released after four days, after writing a promise not to become involved in demonstrations again. This version of events is not consistent with the applicant’s characterisation of the regime in Bahrain as repressive, undemocratic and specifically sanguine in its pursuit of Shiites.”
The next paragraph where the Tribunal dealt with Ms Stewart’s report (among others) reads:
“The Tribunal has considered the various reports from psychologists about the applicant’s mental health. While the Tribunal respects the opinions of the psychologists and has taken them into account, their assessment has not extended to pronouncements that the applicant has ever been unfit to give evidence to the Tribunal. The format of these reports follows the usual pattern of recording the applicant’s version of events and this version of events is subject to scrutiny by the Tribunal.”
Submissions of the Parties and Consideration
In summary, the applicant says two things about this passage. It is first submitted that the Tribunal failed to understand the purpose for which a psychologist’s report had been prepared. It is put that in saying that the evidence did not show that the applicant was unable to give evidence to the Tribunal, the Tribunal simply misconceived the nature of the evidence put forward which was as I have described it, namely to show that his mental state now is consistent with his past claims of abuse.
It was further put – and this, of course, followed from, and was interrelated with, the first matter – that the Tribunal had failed to consider the applicant’s past persecution in a meaningful way. Reliance was placed on the judgment of Collier J in SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 in this regard. Other authorities quoted in the applicant’s contentions of fact and law to the same effect were also relied upon.
The first respondent, by way of contrast, submitted that first, the Tribunal’s remark about the applicant’s capacity to give evidence was no more than an observation open to it in any event. Second, it was submitted that the Tribunal had indeed paid proper regard to the psychologist’s evidence and that, in any event, “the applicant’s argument amounts to no more than a claim that the Tribunal should have more expressly dealt with (the report).” (Paragraph 20, first respondent’s written submissions).
It is true, as the first respondent submits at paragraphs 16 and 17 of his written submissions, that on one view, the Tribunal was perfectly entitled to make the observation that it did about the applicant’s capacity to give evidence. Nonetheless, while both the applicant’s agent’s letter and the report itself referred to the applicant’s difficulties in giving evidence, if one looks at the Tribunal’s decision, and more particularly paragraph 41, I think that the Tribunal’s remarks do display a misunderstanding of what the psychologist’s evidence was really designed to achieve. It is noteworthy that the remark about the applicant’s capacity to give evidence was the first thing the Tribunal said about the psychologist’s reports. I think that the applicant is right to submit that the Tribunal appears to have misunderstood what the evidence was designed to achieve.
That does not, however, fully dispose of the matter. The fact is that, having made that first observation, the Tribunal went on to assert that the report merely stated the events as described by the applicant and pointed out that such events were matters for the Tribunal to decide as to fact.
Once again, I think the Tribunal was, in large part, correct. The report by Ms Stewart accepts without any qualification the facts asserted by the applicant, and it was clearly a matter for the Tribunal as to whether or not it was prepared to accept that account.
Furthermore, I accept the first respondent’s submissions that a failure to make more express reference to evidence does not give rise to jurisdictional error (VMAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 21 at [27])
(See first respondent’s submission at paragraphs 19 to 20).
It is, however, a matter of construing the Tribunal’s reasons, bearing in mind the undesirability of doing so with a mind overly attuned to the perception of error.
In my view, the finding that the account given by Ms Stewart of the facts followed the recitation given to her by the applicant, while true, does not deal with the basis upon which the evidence was put forward.
The Tribunal being seized of the fact (or at least as it should have been) that the applicant was saying that his mental state now gives probative force to his assertions of the historical events he asserted is simply not dealt with by the Tribunal in its decision.
Given that the evidence of Ms Stewart was uncontradicted expert evidence, this was a matter that the Tribunal, being seized of, should have dealt with.
In my view, the failure to address this relevant consideration and relevant evidence falls squarely within the ambit of jurisdictional error.
In considering the issue of jurisdictional error, I respectfully adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
It follows that the applicant’s case on this point must succeed.
The Hospital Report
The Tribunal found that the hospital report, purporting to show that the applicant was injured at the demonstration on 15 April 2007, was written in English because that was the standard language used for such reports in Bahrain. The Tribunal went on to say at paragraph 44:
“The Tribunal does not attach evidentiary weight to the medical report provided in support of the claim that he was hospitalised, because the report was issued on the date of admission and not of discharge (the dates claimed by the applicant) and because it does not mention the symptoms of the effects of tear gas to which the applicant claimed to have been subjected. The report does not record a date of admission or of discharge but only the date in which the report was written.”
I have considered the applicant’s written and oral submissions on this point. The submission of the first respondent at paragraph 29 relevantly states:
“The Tribunal considered the report and rejected it for the reasons that it gave, which were not “spurious” (CB505 at 44). Even if they had been, the consideration of the report and any factual findings made in respect thereof was entirely a matter for the Tribunal alone. The applicant simply invites the Court to reach a different conclusion regarding the report and in the process, engage in impermissible merits review.”
I entirely accept the force of that submission. I think that the Tribunal’s findings about the report were well open to it on the materials that were presented to it.
The Illogicality Ground
In view of my findings about the other matters raised about the hospital report, it is obvious that I do not accept the force of this part of the applicant’s case. I think that the Tribunal’s decision that the report was not conclusive was perfectly open to it on the face of the report itself. The Tribunal’s conclusion about the tear gas point seems to me to have been entirely understandable. That, of itself, would have justified the Tribunal’s finding. In any event, errors of fact of this sort do not give rise to jurisdictional error.
Conclusion
For the reasons I have given, the application must succeed. I will make the necessary orders to return the matter to the Tribunal for further consideration.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 23 June 2010
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