MZYSJ v Minister for Immigration
[2013] FMCA 30
•24 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYSJ v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 30 |
| MIGRATION – Judicial review of a recommendation made by an Independent Merits Reviewer – whether Applicant’s claimed mental health illness prevented him from participating effectively in an interview – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.36(2) 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 SZQQR v Minister for Immigration and Anor [2012] FCAFC 434 Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41 |
| Applicant: | MZYSJ |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1624 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 9 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Watters |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Horan |
| Solicitors for the First Respondent: | Sparke Helmore |
THE COURT ORDERS THAT:
The application is dismissed.
THE COURT ORDERS BY CONSENT THAT:
The Applicant pay the First Respondent’s costs fixed in the sum of $9,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1624 of 2011
| MZYSJ |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERIT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The Applicant, in this application for judicial review of a recommendation made by an Independent Merits Reviewer (‘the Reviewer’) dated 11 June 2011, relies upon an Amended Application filed and dated 13 August 2012; an Affidavit affirmed by Yvonne Lipianin, solicitor for the Applicant to which there is attached, amongst other documents, an Expert Report of Associate Professor Sundram dated 12 July 2012; the International Health and Medical Services medical history of the Applicant which was tendered in evidence in the course of the proceedings and Written Submissions dated 13 August 2012. Associate Professor Sundram was a witness in the proceedings and cross-examined by Counsel for the First Respondent (‘the Respondent’).
The grounds of the application as stated in the Amended Application filed 13 August 2012 are as follows:
“1. The Independent Merits Review denied the Applicant natural justice by failing to take special, or any steps, to take account of the Applicant’s mental illness.
Particulars
a. Natural justice may require a decision-maker to take special steps to deal with an applicant who suffers from mental illness which affects their ability to participate in the hearing.
b. The Applicant suffers from mental illness which affected his ability to participate in the hearing.
c. The Independent Merits Reviewer was on notice that the Applicant suffered from mental illness.
d. The Independent Merits Reviewer failed to take any steps to accommodate the Applicant’s mental illness, such as:
(a) Adjourning the hearing of the review application; or
(b) Continuing with the hearing, but taking into account the Applicant’s mental illness when assessing his evidence.
e. Accordingly, the Independent Merits Reviewer denied the Applicant natural justice.
2. Alternatively, the Independent Merits Reviewer erred by failing to have regard to the Applicant’s mental health in assessing his credibility.
Particulars
a. The Applicant refers to and repeats the particulars to ground 1 above.
3. The Independent Merits Review erred by failing to enquire as to the extent of the Applicant’s mental illness.
Particulars
a. A decision-maker may fall into jurisdictional error if it fails to make an obvious enquiry about a critical fact the existence of which was easily ascertained.
b. The Independent Merits Reviewer was on notice that the Applicant suffered from a mental illness.
c. Given the weight the Independent Merits Reviewer placed on the Applicant’s credibility, the issue of his mental illness was central to the Independent Merits Reviewers’ decision.
d. Notwithstanding this, the Independent Merits Reviewer did not take any steps to ascertain the state of the Applicant’s mental health.
e. Had the Independent Merits Reviewer sought information regarding the Applicant’s mental health, he would have been able to show that the Applicant suffered significant mental health issues, including e.g., a belief that he could converse with the spirits of the dead.
4. In the event that the application is successful, an injunction restraining the Second Respondent from acting as Independent Merits Reviewer should be granted, due to the extensive adverse credibility findings already made by the Second Respondent in that role.”
Essentially the Applicant argues that, by reason of his mental health condition, he was unfit to participate effectively in the Independent Merits Review hearing. Further, he argues that he was denied procedural fairness because the Reviewer failed to take steps to ascertain the state of his mental health or consider it before making an adverse credibility finding.
The Respondent relies upon the Response filed 12 December 2011, the Court Book filed 12 January 2012 and Written Submissions dated 30 August 2012. The Respondent seeks dismissal of the Applicant’s Application.
Background
The Applicant is a citizen of Iran who arrived in Australia by boat. He was taken to an Immigration Detention Centre on or about 15 May 2010 being his time of arrival in Australia. He was interviewed on 9 June 2010 and lodged a request for a Refugee Status Assessment (‘RSA’) on or about 30 July 2010.
The Applicant claimed to fear harm from the Iranian authorities for reasons of his actual or imputed political opinion. His principal claim was that in mid-2009 he had been involved in an election campaign by a presidential candidate. He claimed that on 29 December 2009 he had been abducted by persons who he believed were from the Ministerial Information Office and was detained, tortured and interrogated for a period of 18 days before being released.
On 16 September 2010, a delegate of the Minister of Immigration and Citizenship (‘the Delegate’) determined that the Applicant did not meet the definition of refugee in Article 1A of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugee Convention’) and was not someone to whom Australia owes protection obligations. The Delegate found that the Applicant’s political involvement was minimal and of low level activity, in part as admitted by the Applicant; that he did not have a political profile; and that there appeared to be no reason why the authorities would be interested in him. The Delegate did not find the Applicant’s statement and evidence at interview (as to his political involvement) to be credible. The Delegate noted that the Applicant did not claim to have experienced any further problems with the authorities in the period between his claimed release from detention and his departure from Iran, and that he had been able to depart Tehran airport legally on his own passport. Later, before the Reviewer and in response to this earlier finding, the Applicant claimed to have used the services of a smuggler to bribe an immigration officer at the airport because he was black listed.
On or about 1 October 2010, the Applicant applied for Independent Merits Review of the RSA determination. The Applicant’s adviser provided written submissions which referred to and assessed various sources of country information. The Applicant was interviewed by the Reviewer on 14 April 2011. The common law rules of natural justice applied to that hearing. The Applicant was assisted by an interpreter in the Farsi and English languages. By letter dated 26 April 2011, the Applicant’s adviser provided further written submissions on country information put to the Applicant during the interview in relation to his departure from Iran.
The Reviewer’s findings
On 11 June 2011, the Reviewer found that the Applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth), and recommended that he not be recognised as a person to whom Australia has protection obligations under the Refugee Convention.
The Applicant’s claims to fear persecution were found to come within the Refugee Convention grounds of political opinion (real or imputed). The Reviewer also considered his claims under the Refugee Convention ground of membership of a particular social group such as: membership of the family (concerning the occurrence with his brother-in-law); returnees from a Western country; or failed asylum seekers returning from a Western country. The Reviewer considered cumulatively all of the Applicant’s claims to be a refugee.
The Reviewer found the Applicant to have scant knowledge of Presidential Candidate Mir-Hossein Mousavi’s policies, the Green Movement, and campaign slogans, in light of his claims that over several months he had significant involvement with the Green Movement and devoted significant time and money to the election campaign and to assisting his close friend Dr Mousavi who was a Green Movement coordinator. Not only did the Applicant claim to have donated money and his vehicle for advertising, but he also claimed to have spent considerable time at the electoral office and at gatherings in halls. Whilst he did not claim to have had any political involvement before the election campaign (or after the election), the Applicant claimed that he was a political activist in the campaign. The Reviewer stated at paragraph 104 of his Statement of Reasons:
“In sum, when his evidence was tested, his scant knowledge of the campaign of Mousavi and his claimed personal friend Dr Musavi beyond vague generalities undermines his claim to have had any involvement in the Green Movement election campaign. It is not credible that he had significant hands-on involvement in the Green Movement campaign including an actual campaign office, and yet knows little about the campaign and the Green Movement policies. I reject the claimant’s and agent’s explanations. The claimant’s scant knowledge and lack of detail leads me to conclude he did not have any personal involvement in the campaign or with a Green Movement coordinator who was a close friend.”
The Applicant’s claimed involvement and friendship with Dr Mousavi in the election campaign was the central and significant reason he gave for the Iranian authorities’ later adverse interest in him. As the Reviewer did not accept the Applicant’s story regarding his friendship and involvement in the election campaign with Dr Mousavi, the Reviewer rejected his entire story. The Reviewer did not accept that the Applicant was later targeted by the Iranian authorities because of his political activism and links with a Green Movement campaigner named Dr Mousavi. The Reviewer did not accept he was abducted, held for a significant time, tortured or interrogated. The Reviewer did not accept he was released on condition he remain in his city of residence and give false evidence against Dr Mousavi. The Reviewer concluded he was not of adverse interest to the Iranian authorities or pro-government agents before he departed Iran for the reasons he claimed. The Reviewer found the Applicant to have no political profile in Iran at all.
The Reviewer did not accept that the Applicant was on a black list of people not permitted to leave Iran. Additionally, based on the Applicant’s evidence, the Reviewer found he held a valid passport at the time he departed which contained an exit permit. On the material before the Reviewer, the Reviewer did not accept he paid a bribe to depart, or that he departed Iran illegally. The Reviewer concluded that the Applicant departed Iran on his legal passport in the usual way.
The Applicant stated he suffered harm in the past: he was once detained and assaulted for 20 days in relation to his brother-in-law’s political activities and interest in the Bahai religion. At the interview, despite ample opportunity, the Applicant did not claim that he feared to return to Iran because of this past incident. The Reviewer noted on the Applicant’s evidence, this incident was now many years in the past and was an isolated occurrence which did not lead to ongoing adverse interest in the Applicant by the authorities. Given the effluxion of time, the Reviewer found that the persons who detained the Applicant would no longer have any interest in him, and therefore there was no real chance of the Applicant being persecuted on the basis of his brother-in-law’s activities. The Reviewer did not accept the past occurrence or his family relationship would cause him to face, in the reasonably foreseeable future, serious harm in Iran for any Refugee Convention reason.
The Reviewer accepted that any attempt to involuntarily return the Applicant as a failed asylum seeker to Iran would require consultation with Iranian authorities. However, the Reviewer referred to the country information indicating that a returnee who left Iran illegally and applied for asylum overseas would likely merely be detained, questioned and fined on their return. The Reviewer found that the Applicant departed Iran in the usual way on his legal passport.
Finally, the Reviewer concluded there was nothing in the Applicant’s background, employment or profile that suggested he would now be of adverse interest to the authorities. He did not accept that the mere fact of the Applicant coming to Australia and seeking asylum would cause him to be persecuted on his return to Iran. The Reviewer concluded that if the Applicant returns to Iran, in the reasonably foreseeable future there is not a real chance he will face serious harm amounting to persecution for a Refugee Convention reason of political opinion, or membership of a particular social group such as returnees from a Western country; or failed asylum seekers returning from a Western country; or as a returnee for any reason.
The International Health and Medical Services medical records
The Applicant contended in these proceedings that “[a]t all relevant times, [he] has suffered from mental illness, although its severity appears to have varied over time.” I accept the submissions of Counsel for the Respondent that the International Health and Medical Services (‘the IHMS’) medical records which were tendered in evidence in this judicial review hearing and were not before the Reviewer do not bear out the generality of that contention. In particular, they do not establish that, as at the time of the Independent Merits Review hearing on 14 April 2011, the Applicant was suffering from a mental illness that prevented him from participating meaningfully in the hearing.
At the time of his arrival in May 2010, the Applicant did not report any current health problems nor any serious medical problems in the past. A mental state examination assessment noted that he had no history of mental illness or depression, and that his “cognition and sensorium” were “orientated to time place and person”. Subsequent assessments in November 2010 and June 2011 reported his “cognition and sensorium” as “intact” and “alert & oriented to [time place and person]”. In December 2011 (more than six months after the Independent Merits Review hearing), a mental state examination assessment noted that the Applicant “did report some minor memory problems when he is feeling stressed stating he can easily forget things when he is distressed”, but also stated that the Applicant had “very good insight” and “appears to be dealing well with his current detention but is understandably frustrated at the length of time he has been in detention”.
In the weeks leading up to the Independent Merits Review hearing and on 26 February 2011, the Applicant presented “for follow up of mood and coping strategies”. He reported anxiety and an “unreasonable fear”. His cognition was assessed as oriented to time place and person. While the Applicant stated that his concentration was poor, the mental health nurse noted that this was not evidence in the interview. The Applicant stated that his memory was “alright”. The Applicant reported a long-standing belief that he was a “medium” and had contact with deceased persons, but claimed that such thoughts were not intrusive on his life and did not affect his relationships, and he had “no concerns over this phenomena”. He otherwise claimed to be restless, have not enough sleep and family issues. He was assessed as appropriate and congruent with his conversation.
On 3 March 2011, the Applicant had a medical appointment at which he reported that he was “not feeling well and being scared and under pressure.” It was noted that the Applicant had been given a negative RSA and was awaiting an Independent Merits Review hearing date. The report stated that “[n]il psychotic phenomena reported, elicited or observed”, and described the Applicant as “insightful”.
The Applicant was seen by a psychologist on 14 March 2011. His presentation was described as “[w]arm and engaging middle aged man.” The Applicant reported that he was worried about the RSA rejection and what he would do if he were rejected again, and “suggested he can not always express what he is trying to say or how he feels”. He also reported anxiety symptoms, but suggested that the main reason for his anxiety was a skin problem that he had developed.
On 8 April 2011, the Applicant was seen by a mental health nurse, in order to “off load” some feelings of anxiety secondary to his Independent Merits Review appointment scheduled for 14 April 2011. He claimed to be feeling some pressure with a noticeable decline in his general mood. He “[p]resented as a pleasant and very polite man” and “made good eye contact throughout [the] interview. His affect was described as “spontaneous and reactive, at times showing some light hearted humour”.
The Applicant was again seen by a mental health nurse on 13 April 2011, the day before the Independent Merits Review hearing, “for support leading up to IMR interview tomorrow”. The Applicant stated that he was “feeling increasingly restless about his IMR interview”, and “expressed concern with his steady deterioration in concentration and memory related to his extended stay in detention”. He was described as “pleasant and engaging, not irritable or agitated”. He stated that he was fearful of his future and was worried about the lack of information about the way in which the IMR hearing would be conducted. He “openly engaged in support with IMR process and how to be better prepared for the hearing”. The Applicant referred to his “religious spiritual” beliefs that he was able to converse with ghosts or spirits, but denied any auditory, visual or tactile hallucinations. No formal thought disorder was noted and he was not tangential.
On 18 April 2011, several days after the Independent Merits Review hearing, the Applicant had an appointment with a psychologist. The Applicant reported that his mood was low and that his memory had become worse. The psychologist concluded that “[b]ased on information currently available there appears to be no organic cause to memory issues and memory complaint likely is context of post-traumatic changes and stress.’ The actions discussed included “ongoing psychological memory management strategies”. The memory management issues were addressed in subsequent appointments on 1 May 2011 and 11 May 2011. The Applicant was discharged from Psychology and had no further mental health needs at that time.
In an interview with a mental health worker in June 2011 and on the day following receipt of the adverse Independent Merits Review decision, the Applicant “presented with euthymic [i.e. normal or non-depressed] mood and reactive affect”. He was polite and co-operative throughout the interview. At this time, he advised that he was “disappointed” with the decision and the inequality of the Australian immigration system. However, by several days later, the Applicant’s mood had dropped and he had become “sad and despondent [sic] about his and his families situation”. He sewed his lips and went on a hunger strike in protest at the Independent Merits Review decision and to draw attention to his case. In late July 2011, the Applicant was admitted to a mental health institution under the Mental Health Act 1996 (WA). Following his discharge on 3 August 2011, he was described as “[c]ognitively alert, oriented, bright and reactive”, with improved mood and hope for the future. In an appointment with a psychiatrist in February 2012, the Applicant described “great periods of stress esp when getting negative immigration outcomes”.
Evidence of Associate Professor Sundram
Associate Professor Sundram is a consultant psychiatrist. He has worked for over 20 years in general adult psychiatry and as a consultant psychiatrist for 12 years, and more specifically, in the last eight to nine years, he has worked with asylum seekers who have been referred to him either by treating psychiatrists or doctors, or for legal opinions.
Associate Professor Sundram prepared a report for the purposes of the proceedings and attended at Court to be cross-examined. His report dated 12 July 2012, which was clearly not before the Reviewer, was tendered in evidence. In it he addressed the question as to whether it was likely that the Applicant was affected by a mental illness at the time of the Independent Merits Review interview. To answer that question he relied solely upon his examination of the IHMS medical records of the Applicant. The medical records covered the period from the Applicant’s arrival in Australia until the beginning of 2012 and were compiled by various mental health nurses, psychologists and a psychiatrist (after the Independent Merits Review hearing) not all of whom are qualified to give expert evidence as to a person’s psychiatric condition. Associate Professor Sundram did not conduct an examination of the Applicant himself. He did not interview him at the time of the Independent Merits Review hearing and nor did he know him. His report is not a contemporaneous assessment of the Applicant’s mental health state. For that reason, Associate Professor Sundram’s evidence was that he could not be definitive that the Applicant was, at the time of the Independent Merits Review hearing, experiencing a major depressive disorder which impacted upon his capacity to provide testimony at the hearing. In cross-examination Associate Professor Sundram accepted that usual practice would require an examination in person and that to be definitive about a diagnosis one would need to interview the patient and to collect additional information. It was however his opinion that the Applicant was suffering from a major depressive disorder for a period of maybe six to eight weeks prior to the Independent Merits Review hearing and that such disorder persisted until its diagnosis in June/ July of 2011. Such opinion was acknowledged by him as below a level of certainty.
Associate Professor Sundram’s evidence, with respect to the IHMS medical file notes relating to the Applicant’s presentation on 13 April 2011, was that the totality of the entry was consistent with someone having a major depressive disorder, but that it was also consistent by itself with a number of possible alternatives. In that interview, the Applicant’s affect was described as “pleasant and engaging, not irritable or agitated. Sat relaxed with arms folded. Some ringing of hands and anxiety noted when talking about his future.” The Applicant claimed to feel restless and fearful of his future. He was observed to have good rapport, be co-operative with the interview and have eye contact which was intense at times. Associate Professor Sundram agreed such observations would be consistent with a normal functioning person. Nevertheless, based on the medical notes read by him and his opinion Associate Professor Sundram’s evidence was that the Applicant was in all probability suffering from a major depressive disorder at the relevant time of the Independent Merits Review hearing. Thereafter, Associate Professor Sundram offered probable scenarios as to the possible effect of the various symptoms of that disorder during the Independent Merits Review interview. Although he could not provide any specific examples from the transcript of the hearing (which he had read), of where the Applicant’s mental illness might have prevented him from participating effectively in the hearing, his evidence was that it might have.
Associate Professor Sundram considered that it is “likely” that the symptoms present on the day of the Independent Merits Review hearing included “poor concentration, impaired memory, anxiety and fear, poor sleep and low energy.” In Associate Professor Sundram’s opinion, these symptoms “would have led him [the Applicant] not to provide relevant information and such gaps could easily be interpreted by others as deliberately withholding information or being “economical with the truth”. Associate Professor Sundram also considered that the symptoms may cause “cognitive construction” where a person focuses on the literal meaning and is unable to respond to the broad meaning of a question.
However, Associate Professor Sundram gave no specific examples of either of the above possible effects having arisen in the Independent Merits Review hearing by reference to the transcript of the proceedings. Indeed, Associate Professor Sundram acknowledged that the Reviewer “appears to conduct the interview in a highly professional and considered manner allowing time for [the Applicant] to gather his thoughts, provide clarifying comments and to provide appropriate breaks.”
Consideration
In SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26, the Full Court of the Federal Court of Australia observed that an assessment and recommendation by an Independent Merits Reviewer do not themselves have any statutory or other legal force. The recommendation is not a pre-condition or a step required in the process of making a decision under ss.46A or 195A. The Minister of Immigration and Citizenship (‘the Minister’) is not obliged to have regard to the Reviewer’s recommendation when exercising those statutory powers, but rather can make or not make a decision regardless of the Reviewer’s assessment or recommendation. Nevertheless, the Full Court stated in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 at paragraph 44 the following:
“as in Plaintiff M61 at 358-360 [99]-[104], declaratory relief and, perhaps, an injunction would be an appropriate remedy to ensure that the Minister understands that a assessment or recommendation is affected by demonstrable error if he or she were otherwise minded to act upon them. In this regard, to say that the assessment and recommendation of the review was not an administrative decision is not to say that the review process was not required to be fairly and lawfully conducted.”
The issue for the Court here is whether the Applicant has established on the balance of probabilities that he suffered from a mental health condition that caused him to be unable to meaningfully take part in the Independent Merits Review hearing.
In SZQQR v Minister for Immigration and Citizenship & Anor [2012] FCAFC 434, the applicant relied on similar grounds of review, namely that he had been denied a fair opportunity to present his case to the Independent Merits Reviewer because he was suffering from mental impairment at the time of his interview, or that the Independent Merits Reviewer had denied procedural fairness to the applicant by not considering his mental health condition prior to making adverse credibility findings. In dismissing the application, Nicholls FM accepted that the relevant question was “not whether the applicant may have been able to give a better account of his claims [in] evidence, but whether the applicant was able to give evidence and take part in the proceedings” (at paragraph 50). Accordingly, it was not sufficient merely to establish that the Applicant suffered from a psychological or mental condition, without demonstrating that the condition was “such as to cause difficulties that meant he could not meaningfully take part in the interview” (at paragraph 58).
Similarly, in SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 at paragraph 32, Flick J said:
“The fact that a party to an administrative hearing may be suffering from some mental illness or taking medication that affects his ability to adduce evidence or advance arguments will not in all cases deprive him of a meaningful opportunity to participate in a hearing process. When a disability becomes so severe that it denies a party an opportunity to be heard – or to be effectively heard in a meaningful manner – then it may well mean that difficult factual judgments need to be made. It may be possible to do no more than recognise that each case may well depend upon its own facts and circumstances – those circumstances including the nature of the disability and the complexity of the factual or legal issues to be addressed. Cases may arise where any difficulty may be avoided by simply adjourning a hearing in a manner consistent with the expeditious and just resolution of the claims being made. There remains, however, no obligation imposed upon the Tribunal “of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant’s best advantage”.”
In these proceedings, the evidence does not establish that any medical health issues experienced by the Applicant prevented him from giving evidence or from participating effectively in the Independent Merits Review interview. The IMHS medical records and the opinion of Associate Professor Sundram do not establish that the Applicant’s mental health functioning at the time of the Independent Merits Review interview impacted upon his capacity to present evidence and make submissions, such that he could not meaningfully participate. The transcript of the interview and the Reviewer’s Statement of Reasons are both also before the Court in evidence. It is apparent that the Applicant was legally represented and assisted at the interview by an experienced migration agent. The agent did not raise any issue or concern about the Applicant’s mental condition or his ability to participate in the interview, despite making submissions in relation to the credibility concerns raised by the Reviewer. Nor was any concern raised following the hearing, including in the post-hearing written submissions. As was the case in SZQQR v Minister for Immigration and Anor [2012] FCAFC 434 at paragraph 88:
“Neither the applicant, nor importantly the applicant's adviser, raised any concerns about the conduct of the interview or the applicant's capacity to meaningfully participate. Nor was any complaint made subsequently during the duration of the review.”
The transcript shows that the Reviewer was careful to ensure that the Applicant understood what was being asked of him and that he, the Reviewer, understood what was being said. Indeed, Associate Professor Sundram commented favourably on the approach taken by the Reviewer. It cannot be found that the Reviewer denied the Applicant procedural fairness.
The Reviewer was not under any general duty to inquire or to take steps to obtain additional information. The Reviewer was not required to “press” the Applicant to call evidence as to whatever “psychological problems” he may seek to rely upon (Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41). The psychiatric report by Associate Professor Sundram was not in existence at the time of the Reviewer’s decision. I accept Counsel for the Respondent’s submission that the Applicant’s statement at the hearing that, in previous interviews, he hadn’t been able to make himself understood “because of the lack of concentration and my mental status” did not put the Reviewer on notice of any material relating to his then current psychological condition which might have required further investigation. Further, the Applicant’s legal representative did not put forward any such material, nor request the Reviewer to obtain further material or arrange for a psychological assessment. This was in circumstances where it was evident that the Applicant had discussed his medical condition with his legal representative prior to the hearing. In such circumstances, the Reviewer:
“was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished.”
(Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41 at paragraph 36).
The matters that were ultimately relied on by the Reviewer in making adverse credibility findings against the Applicant were not related to the Applicant’s demeanour during the interview or any significantly diminished capacity of the Applicant’s to participate in the oral hearing. Rather, the Reviewer examined the substance of the Applicant’s claims, particularly his lack of detailed knowledge about matters related to the election campaign in which he claimed to have been closely involved, together with information about the manner of the Applicant’s departure from Iran. These matters resulted in earlier adverse outcomes in the process for the Applicant and led to other adverse credibility findings as early as September 2010. The Reviewer’s reasons provide a proper basis for making the adverse credibility findings contained therein. Such findings were not based on the unresponsiveness or vagueness of the Applicant. They were based on claims made by him over a considerable period of time during which he was given ample opportunity, in particular by the Reviewer, to address those matters stated to be of concern to the Reviewer including post the interview.
No legal error of the Reviewer’s recommendation to the Minister is found. Accordingly, the application is dismissed and costs should follow the event. I propose ordering a costs sum which is in excess of the scale costs as a consequence of the additional work required to be done in the calling of an expert witness and the additional hearing date required. Costs are a discretionary matter and the award of scale costs in these proceedings without adjustment would be unjust.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 24 January 2013
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