NANQ v Minister for Immigration - [2003] FMCA 553

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANQ v MINISTER FOR IMMIGRATION

[2003] FMCA 553

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a Muslim and suspected terrorist in India – whether the RRT considered all the relevant evidence before it – whether the RRT considered all of the applicant’s claims – whether the hearing before the RRT was fair – whether the RRT should have investigated the claims that the applicant suffers from Post Traumatic Stress Disorder before requiring him to identify at the hearing which of his many claims he relied upon.

Federal Magistrates Act 1999 (Cth), s.16
Migration Act 1958 (Cth), ss.424, 425

Ahmed v Minister for Immigration [2002] FCA 6
Al Saqaf v Minister for Immigration [2001] FCA 506
Enichem v Anti Dumping Authority (1992) 39 FCR 458
Gnanasambanther v Minister for Immigration [2001] FCA 693
Htun v Minister for Immigration (2001) 194 ALR 244
Minister for Immigration v SCAR (2003) 198 ALR 293
NAMJ v Minister for Immigration [2003] FCA 983
Prasad v Minister for Immigration (1985) 6 FCR 155
SGLB v Minister for Immigration [2003] FCA 176
SZACW v Minister for Immigration [2003] FMCA 307

Applicant:

NANQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1207 of 2003

Delivered on:

23 December 2003

Delivered at:

Sydney

Hearing date:

24 November 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Court declares that the decision of the Refugee Review Tribunal made on 11 March 2003 and handed down on 3 April 2003 is invalid and of no effect.
A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal.
A writ of mandamus issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1207 of 2003

NANQ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 11 March 2003 and handed down on 3 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Tamil Nadu state in India and is a Muslim. His claims for a protection visa centred on his fear of persecution in India as a Muslim and as a potential terrorist suspect. The background to the application before me is accurately set out in paragraphs 2 to 7 of written submissions prepared by Mr Kennett on behalf of the Minister on 19 November 2003 and I adopt those paragraphs for the purposes of this judgment:
The applicant is a national of India who arrived in Australia on 31 March 2002 and applied for a protection visa on 15 April 2002. That application was rejected by a delegate of the Minister on 20 June 2002. The applicant applied for review of that decision by the RRT on 9 July 2002 (court book, page 120).
As they emerged at the RRT hearing (court book, page 133), the applicant’s claims centred on two matters.
First, he said that he feared that he would be harmed because of suspected involvement in the bombing of a Hindu organisation’s headquarters in 1993.
Secondly, he said that as a result of an incident in 2001 he claimed that he was on a police list and was suspected of being a terrorist.
As to the first matter, the RRT accepted that the applicant had been working in his brother-in-law’s shop at the time of the explosion, that the shop was looted, that his brother-in-law was detained overnight for questioning, and that the police wanted to question the applicant (court book, page 134). However, the RRT was not satisfied that these matters led to the applicant having a well founded fear of serious harm amounting to persecution. It did not appear that a warrant had ever been issued for his arrest; and he had lived in India for a further eight and a half years without being detained or harassed (court book, page 134).
As to the second matter, the applicant denied that he had any actual links with the relevant terrorist organisation and the RRT found it implausible that the police would have suspected him of having such links. The RRT was not satisfied that the applicant was wanted by the police, or that he would be regarded as a terrorist suspect and harmed for that reason (court book, page 135).
The RRT also considered whether the applicant had a well founded fear of persecution in India as a Muslim. It accepted that there was some communal violence in India but that the government was taking effective steps to prevent it, and that India was a secular state with a large Muslim community. The applicant had not claimed to have any particular involvement in religious affairs or to have experienced any particular difficulty (other than the matters already mentioned) because of his religion (court book, page 136).
The RRT therefore did not consider that the applicant had a well founded fear of persecution for any Convention reason in India. Accordingly, it was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention.

The present application

The application before me lists 13 grounds of review. Grounds 12 and 13 simply go to the merits of the decision of the RRT and, as I explained to the applicant, it is not open to me to review those merits. There is no substance to ground 11, which asserts a lack of bona fides in the decision of the RRT. At trial, the applicant was unable to put anything to me in support of that ground other than to say that the RRT failed to make proper enquiries. I find that there was no lack of bona fides in the decision of the RRT. Of the remaining 10 grounds, I adopt Mr Kennett’s description as follows:
i)grounds 1-5 assert in general terms that the RRT exceeded or failed to exercise its jurisdiction, but do not identify any particular error;
ii)ground 6 asserts that the RRT erred by ignoring some of the material before it;
iii)ground 7 asserts that the RRT erred by failing to appreciate the role of imputed political opinion in the applicant’s claims;
iv)grounds 8 and 9 appear to assert that the RRT member was biased against the applicant;
v)ground 10 asserts that the RRT failed to comply with s.425(1) of (presumably) the Migration Act 1958 (Cth) (“the Migration Act”).

Bias

There is no substance to the claim of bias. The applicant was unable to put anything to me in support of this ground of review. I reject it.

Section 425

I agree with and adopt paragraphs 13 and 14 of Mr Kennett’s initial written submissions as follows:
Section 425(1) required the RRT to invite the applicant to attend a hearing. That was done: a hearing was convened and the applicant attended. There is no suggestion that the hearing was inadequate.
It may be that the application was intended to refer to s.424(1). That provision confers a power on the RRT to seek additional information. However, the RRT is not under any duty to seek or obtain further information.[1] The RRT was not obliged to make the applicant’s case for him.[2]
[1] See Ahmed v Minister for Immigration [2002] FCA 6 at [18]-[21]; Al Saqaf v Minister for Immigration [2001] FCA 506 at [36]-[39]; Gnanasambanther v Minister for Immigration [2001] FCA 693 at [20] per Emmett J (Sundberg and Finkelstein JJ agreeing).
[2] Cf. Prasad v Minister for Immigration (1985) 6 FCR 155, 169-170; Enichem v Anti Dumping Authority (1992) 39 FCR 458, 469 per Hill J (other members of the Court agreeing).
However, the enquiry does not end there. The applicant told me that he was not familiar with the Migration Act and a friend had helped him with his application. He did not dispute Mr Kennett’s suggestion that ground 10 of the application may have been intended to refer to s.424(1). That section obliges the RRT to have regard to information before it if relevant to the applicant’s claim. The question is, did the RRT fail to have regard to any of the information before it for the purposes of the review?
The RRT adopted a somewhat unusual procedure at the hearing. At page 133 of the court book the presiding member states:
The applicant and his former adviser (who ceased this role with effect from 27 February 2003) have made a number of claims and submissions in support of the applicant’s case. At the hearing the applicant was asked by the Tribunal to provide in detail his claims and state why and on what basis he claimed to be a refugee and, in reply, he mentioned because of the bombing of the RSS building in Madras in 1993 and subsequently referred to an incident in the Dalits colony in August 2001 [both of which are dealt with later in the RRT decision] which he claims have resulted in his name being on a police list and in consequence he claims he is a suspected terrorist and will be harshly treated on his return. As these are the claims the applicant raised and spoke to at the hearing, and as the Tribunal gave the applicant a number of opportunities to put any other matters before it, the Tribunal is satisfied that the claims presented at the hearing form the basis on which he is seeking a protection visa in Australia (which are also mentioned in a number of his other submissions) as opposed to the other often vague and somewhat general claims previously made by the applicant and his former adviser.
It appears at this point that the presiding member had chosen to disregard some material which had been put forward in writing by the applicant and his former adviser prior to the hearing. It is not clear precisely which claims the presiding member chose to disregard. At the RRT hearing the applicant substantially repeated his earlier claims. He did not repeat every detail of those earlier claims and it appears that in those circumstances the presiding member chose to disregard the details which the applicant did not affirm at the hearing he wished to rely upon. The presiding member set out (court book, pages 123-126) the claims made in writing by or on behalf of the applicant prior to the hearing. On pages 126-129 of the court book the presiding member sets out the claims made by the applicant at the hearing. In my view, for the purposes of the performance of the obligation imposed upon the RRT under s.424(1) the presiding member did “have regard to” all of the information put before the RRT by or on behalf of the applicant. The presiding member chose not to base his decision on details of the written claims which were not adopted by the applicant at the hearing, but it does not follow that the presiding member failed to have regard to those rejected details. It is part of the process of decision making that the decision maker decide which information is relevant to the decision and which is not. That is what the presiding member was doing. A decision maker does not breach the obligation to have regard to information in deciding that certain information should be disregarded as irrelevant. I find no breach by the RRT of s.424(1).
The remaining grounds of review are dealt with by Mr Kennett in paragraphs 9-11 of his submissions. I generally agree with those submissions and adopt those paragraphs for the purposes of this judgment:
While it may be argued that the RRT will fail to exercise its jurisdiction if it fails to address an “integer” of an applicant’s claim,[3] the same cannot be said of any evidence or other material placed before the RRT in support of a claim. It is for the RRT to decide, in reaching its factual conclusions, what material it finds persuasive and what material it does not. It is not obliged to give a line-by-line rebuttal of any evidence that it does not find persuasive.
The RRT did not fail to deal with any “integer” of the applicant’s claims. In particular, it clearly understood that he was claiming to fear harm as a result of a political opinion or association which others attributed to him.
There is no significance in the fact that, rather than deal separately with each of the written statements made by the applicant, the RRT chose to concentrate on the matters he had advanced at the hearing. These were the matters the applicant mentioned when asked to outline his claims in detail, and the RRT was satisfied that these claims were the basis upon which he sought protection in Australia (court book, pages 127, 133).
[3] Cf. Htun v Minister for Immigration (2001) 194 ALR 244, 259.
The applicant was not able to put anything to me on the trial of this matter in support of these remaining grounds of review. The only real question arising out of these grounds is whether the RRT failed to take into account a relevant consideration arising from the applicant’s various claims in support of his protection visa application. The applicant told the presiding member at the hearing which claims he relied upon and the presiding member considered those claims. Provided that the applicant was given a fair opportunity to explain to the RRT at the hearing before the RRT what his claims were and which claims he relied upon, no jurisdictional error arises from any of these grounds. However, the question in my mind is whether the applicant was given a fair opportunity at the RRT hearing to identify and explain the grounds upon which he relied.
At page 126 of the court book the presiding member refers to a claim from the applicant’s adviser in a supplementary submission dated 17 June 2002 that the applicant is suffering from Post Traumatic Stress Disorder (PTSD). This is a reference to the statement which appears on page 50 of the court book as follows:
Having regard to the detention, assault and torture previously experienced by his associates, family members and friends, its long terms effects and the fact that he is suffering from Post Traumatic Stress Disorder and any such future detention and interrogation if he were to return to India would amount to persecution. His emotional and physical state would exacerbate the impact of such treatments in India.
The alleged PTSD suffered by the applicant was put forward as an additional reason for non refoulement and not as something to be taken into account at the hearing on any issue of credibility of the applicant. Nevertheless, as I have found previously: SZACW v Minister for Immigration [2003] FMCA 307 the RRT would commit a jurisdictional error by failing to consider the impact of PTSD upon the reliability of the applicant’s evidence or his capacity to participate in the RRT hearing. Unlike in SZACW, there was no medical evidence that the applicant suffered from PTSD. There was simply an allegation contained in the applicant’s former adviser’s written submission. The assertion was that the applicant suffered PTSD as a result of the detention, assault and torture of his associates, family members and friends. Although the allegation was referred to by the presiding member in his reasons, the presiding member did not consider the allegation in coming to his decision, apparently on the basis that this was not an allegation pursued by the applicant at the hearing. However, if the applicant does suffer from PTSD, the RRT should not have required the applicant to tell the RRT which claims he relied upon at the hearing, as a basis for determining which claims were relevant to the making of a decision. The procedure would be unfair unless the RRT first determined, on the basis of proper medical evidence, whether the applicant suffered from PTSD and whether he could reliably inform the RRT of which details of his claims he was in fact relying upon. If the applicant suffers from PTSD and if, as a result, he could not be relied upon to give clear and cogent evidence to the RRT, the RRT should not have adopted the procedure it adopted at the hearing.
At the request of Mr Kennett, I reserved judgment on 24 November 2003 and gave him and the applicant 14 days to put in further written submissions on this issue. The applicant filed written submissions on 8 December 2003 which traverse a number of issues other than the PTSD issue about which I granted leave for further submissions to be filed. The submissions by the applicant relating to an alleged breach of s.430 of the Migration Act and actual bias do not assist him in any event. On the PTSD issue the applicant submits as follows:
The other issue is that I wrote to the Deputy Principal Member of the RRT on 4 February 2003 out of my anxiety and requested my case be considered by a senior Member of the RRT because I have been severely traumatised by my experiences in India, the thought of returning to India haunts me and I am stressed about my future, and what I claimed is the “very little chance” of a RRT decision being set aside by the Federal Court. On 18 February 2003 the Principal Member replied to me saying that the circumstances I outlined did not fall into the limited circumstances applying for reconstituting a RRT case (AB page 122). I believed in good faith that these are the above issues would have caused biased against my claims and the apparent outcome of a negative decision to me. My only intention out of my frustration was to secure my case to be heard by a Senior member of the RRT who will have more experience and sympathetic and compassionate towards my claims.
Annexed to the submissions was a medical certificate from Dr Ruban Karalasingham and a referral letter to Dr Alex Sharah. Relevantly, Dr Koralasingham states that, as at 2 December 2003, he has been treating the applicant for PTSD for “over six months”.
In his further written submissions filed on 8 December 2003, Mr Kennett submits that:
In SGLB v Minister for Immigration [2003] FCA 176, the appellant claimed to be having psychological problems and the RRT therefore delayed its hearing and sought information from the psychologist at Woomera Detention Centre. The psychologist provided a report, the substance of which was that the appellant was capable of giving evidence.[4] The RRT conducted a hearing and then formed the view that the appellant almost certainly was suffering from Post Traumatic Stress Disorder (PTSD), and that it had probably affected his ability to give evidence.[5] Notwithstanding that observation, the RRT dealt with the appellant’s claims and rejected them, at least partly because of inconsistencies.[6]
[4] [2003] FCA 176 at [12].
[5] [2003] FCA 176 at [14].
[6] [2003] FCA 176 at [16].
Selway J identified three errors, each of which (in his Honour’s view) went to the RRT’s jurisdiction.
First, the RRT erred by diagnosing PTSD without any evidence to support such a diagnosis.[7]
[7] [2003] FCA 176 at [15].
Secondly, having made that diagnosis, the RRT made credibility findings against the appellant without any evidence as to what effect PTSD might have on his ability to give reliable evidence.[8]
[8] [2003] FCA 176 at [16].
Thirdly, having made its finding about PTSD, the RRT was under a duty to consider whether the appellant could take part in the proceedings and failed to do so.[9]
[9] [2003] FCA 176 at [17].
SGLB has been considered in one case – a decision of this Court in which it was followed.[10] On 14 August 2003 the High Court granted Special Leave to Appeal from the decision in SGLB.
The Minister formally submits that SGLB was wrongly decided. However, pending the outcome of the appeal to the High Court, the decision of Selway J (having been made on appeal from this Court) remains binding.
The present case has important differences from the situation in SGLB.
The RRT did not find that the applicant suffered from PTSD or any other psychological condition. Clearly, therefore, the first of the errors identified by Selway J is not present.
In the absence of such a finding, there would be no legal flaw in the RRT’s reasoning if it had rejected the applicant’s claims on credibility grounds (cf. the second error identified by Selway J).
However, the RRT did not reject the applicant’s claims in that way. It did not reject any of his assertions about things that had happened to him. Rather, it disagreed with his assessment of the likelihood that he would suffer harm as a result of those things. Thus, even if the applicant was suffering PTSD, it did not compromise his claims by making his story appear inconsistent or incoherent to the RRT.
In the absence of a finding about PTSD, the circumstances in which Selway J identified a duty to consider whether the hearing should proceed (cf. the third error identified by his Honour) are not present.
In order for the applicant to succeed, the Court would need to go beyond the reasoning in SGLB. It would be necessary to hold that the mere assertion that the applicant suffered PTSD[11] gave rise to some duty which the RRT did not perform (e.g. a duty to consider whether the hearing should proceed).
Such reasoning should not be accepted. The RRT was aware of the assertion having been made (court book, page 126) but was also conscious that, at his hearing, the applicant did not claim to have actually suffered mistreatment or torture (court book, pages 136-129, 133). The RRT also had the benefit of seeing the applicant give his evidence, and it broadly accepted his claims about his own experiences (having, presumably, found his evidence reasonably cogent). No occasion arose to consider whether the quality of his evidence was affected by PTSD, but if that issue did arise it was for the RRT to assess how much weight to give to the assertion that he suffered PTSD.
If the Court were to find that the applicant was not fit to give evidence to the Tribunal, different issues would arise.[12] However, there is no material before the Court capable of sustaining such a finding.
[10] SZACW v Minister for Immigration (21 July 2003).
[11] The claim was made by the applicant’s adviser in a letter to the Department (court book, page 50) and was not supported by anything in the nature of an expert report. The adviser ceased to be involved before the RRT hearing (court book, page 108). The claim does not appear to have been reiterated to the RRT in terms of PTSD. The applicant did say that he was traumatised and under stress (court book, page 106, 110) but did not advance this as a reason why the hearing should be postponed. Again, no medical evidence was offered.
[12] See Minister for Immigration v SCAR (2003) 198 ALR 293; NAMJ v Minister for Immigration [2003] FCA 983. The Minister has sought Special Leave to Appeal in SCAR and, if the issue arose, would formally submit that it was wrongly decided.

I accept, on the basis of Dr Karalasingham’s certificate, that the applicant now suffers from PTSD. On the balance of probabilities, I find that the applicant suffered from PTSD at the time of the RRT hearing on 3 March 2003. The RRT was on notice of the possibility that the applicant suffered from PTSD by reason of the adviser’s submission to the Department dated 17 June 2002. In addition, the applicant further alerted the RRT to his claim to be “severely traumatised” in his letter to the RRT dated 4 February 2003.
In those circumstances it was, in my view, procedurally unfair for the RRT:
b)to make no enquiry about the applicant’s state of mental health; and
c)to put the applicant to the test at the hearing before it of specifying in detail which of the many claims that had been made by and on his behalf he relied upon.
The RRT may have felt the need to avoid having to trawl through all of the applicant’s documents to identify and consider all of his claims. However, having been put on notice that the applicant claimed to have been traumatised by his experiences and that he claimed to suffer from PTSD it was unfair for the RRT to put the obligation on the applicant at the hearing to identify all of his claims, without exercising the power conferred on the RRT under s.427(1)(d) of the Migration Act. In the absence of any medical evidence about the applicant’s state of mind, the RRT was not in a position to assess the capacity of the applicant to do what the RRT required of him at the hearing. Medical evidence was reasonably required to enable the RRT to make an assessment of the applicant’s capacity.
A want of procedural fairness in a RRT hearing establishes jurisdictional error. I find that jurisdictional error has been established by the applicant in this matter. Accordingly, the decision of the RRT is not a privative clause decision. There is a question, which I understand is before the Federal Court, about the jurisdiction of this Court to grant relief in respect of a decision which is not a privative clause decision. I have no doubt that I have the same jurisdiction to grant prerogative relief as the Federal Court, but for the sake of caution, I will also make a declaration, pursuant to s.16 of the Federal Magistrates Act 1999 (Cth).
There will be no order as to costs, noting that the applicant was self represented.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 December 2003.