SZACW v Minister for Immigration

[2003] FMCA 307

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACW v MINISTER FOR IMMIGRATION & ANOR [2003] FMCA 307

MIGRATION – Review of RRT decision – application for a protection visa – whether the applicant has a well-founded fear of persecution for reasons of his ethnicity, imputed political opinion or his membership of a particular social group – credibility of the applicant’s evidence – where the Tribunal held that there was no real chance that the applicant would suffer persecution – whether the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction – where the applicant suffered from Post Traumatic Stress Disorder (PTSD) – whether the Tribunal made a jurisdictional error by failing to consider the impact of the applicant’s PTSD upon reliability of his evidence or his capacity to participate – whether there was a breach of s.425 of the Migration Act.

Migration Act 1958 (Cth), s.425

SAAK v Minister for Immigration [2002] FCA 367
SGLB v Minister for Immigration [2003] FCA 176
Minister for Immigration v SCAR [2003] FCAFC 126

Applicant: SZACW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SZ 1376 of 2002

Delivered on: 21 July 2003

Delivered at: Sydney

Hearing date: 21 July 2003

Judgment of: Driver FM

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr G Kennett

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Court Declares that the decision of the RRT made on 13 November 2002 handed down on 10 December 2002 is invalid and of no effect.

2. The Court Orders that:

   (a)A writ of Mandamus issue requiring the RRT to redetermine the matter according to law.

   (b)A writ of Certiorari issue quashing the decision of the RRT.

   (c)Respondent to pay the applicant’s costs and disbursements of and incidentals to the application, fixed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1376 of 2002

SZACW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application to review a decision of the Refugee Review Tribunal made on 13 November 2002 and handed down on 10 December 2002.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is a national of Sri Lanka.  He arrived in Australia in April 1999 and applied for a protection visa on 17 May 1999. His application was rejected by a delegate of the Minister on 2 June 2000 and he applied to the RRT for review of that decision on 14 June 2000.  The applicant claimed that he had been forced to undergo training with the Liberation Tigers of Tamil Elam (the Tamil Tigers) and to assist that organisation and had then suffered numerous incidents of harassment by the authorities over a long period as a result of his suspected links with the Tamil Tigers.  The applicant feared that if he had to return to Sri Lanka he would either be targeted by the authorities by reason of his Tamil ethnicity, imputed political opinion or membership of a particular social group or suspected by the Tamil Tigers of passing information to the Government.

3. The RRT accepted the applicant's account of the assistance he was forced to give the Tamil Tigers and of his arrest and detention in 1989.  However, the RRT did not accept the applicant's claims that he had been arrested several times in 1992 and later, that he had been pressed for assistance by the Tamil Tigers in Colombo in the mid 1990s, that the Army had come looking for him in 1995, that the Tamil Tigers had threatened to kill him, that he had had to pay bribes to obtain a passport to leave the country or that the authorities had harassed and questioned his family since he left Sri Lanka.

4. The RRT did not accept that when he left Sri Lanka in 1999 or for some years before that the applicant had been of any adverse interest to the authorities or the Tamil Tigers.  The RRT also had regard to country information relating to the improved situation in Sri Lanka since the cease fire agreement between the Government and the Tamil Tigers had come into effect early in 2002.  The Tribunal therefore concluded that there was no real chance that the applicant would be persecuted for any convention reason if he returned to Sri Lanka. 

5. The application filed on 30 December 2002 to review the decision of the RRT provides no particulars.  The grounds of the application are that the RRT exceeded its jurisdiction and constructively failed to exercise its jurisdiction.  An affidavit filed by the applicant on 30 December 2002 repeats those grounds.  The applicant also relies upon a bundle of documents filed in support of his application on 25 June 2003.  Those documents go to factual matters relating to the situation in Sri Lanka and the applicant's claimed experiences. They may be relevant to an assessment of the merits of his claim for a protection visa but they are not relevant to the consideration of the legality of the RRT decision. 

6. The applicant was unable to expand upon the grounds of review set out in his application and affidavit.  Nevertheless I formed the view that there was a legal issue of significance in this matter and I invited submissions on it from the applicant and Mr Kennett, who appeared for the Minister.  That issue is whether the decision of the RRT is invalid because of the way in which the RRT dealt with post traumatic stress disorder suffered by the applicant. 

7. The potential significance of post traumatic stress disorder upon an applicant's ability to recall events was recognised by the Federal Court in SAAK v Minister for Immigration [2002] FCA 367. At paragraph 31 of that decision, the Federal Court referred to a professional report on PTSD as follows:

   If an applicant is suffering from PTSD his memory of the persecution may be impaired.  Among the varied reactions that are associated with PTSD, two symptoms are particularly relevant to the asylum applicant's circumstances.  Many PTSD sufferers experience a loss of memory and confusion, a psychological defence mechanism which lessens their stress responses.  By not remembering specific details, the applicant delays acceptance of the trauma and the negative emotions associated with the memory of the event.

8. More importantly for these proceedings, the issue was dealt with by his Honour, Selway J, in SGLB v Minister for Immigration [2003] FCA 176. That decision was dealt with on appeal from this Court, in fact from a decision of mine. I am told by Mr Kennett that the Minister has sought special leave to appeal to the High Court from that decision. The Minister's submission is that SGLB was wrongly decided by the Federal Court.  Nevertheless, at this stage Selway Js decision in SGLB is binding upon me unless it can be distinguished.

9. His Honour dealt with the issue on the basis of the general law of procedural fairness.  At paragraph 13, His Honour noted that a person suffering from PTSD may have difficulty in properly giving evidence about traumatic events.  His Honour referred to a report in that case which stated that to expect someone with post traumatic stress disorder to be able to provide a complete narrative is unreasonable. 

10. His Honour identified three legal errors in the approach taken by the RRT in that case. The first was that the RRT made a finding that the applicant in that case suffered from PTSD without proper medical evidence.  At paragraph 16 of his judgment, His Honour identified the second legal error as follows:

    But, having found that the applicant was suffering from PTSD, there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the applicant gave was reliable. Having [wrongly in that case] diagnosed that the applicant was suffering from PTSD, it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the appellant's evidence without evidence as to what effect the PTSD might have on the appellant's capacity to give evidence.

11. At paragraph 17, His Honour identified a third problem.  His Honour said:

    The third problem is directly related to the second. Having found that the appellant was suffering from PTSD, there was no evidence before the Tribunal which would enable the Tribunal to determine whether the appellant could properly take part in the proceedings.  Having found that the appellant was suffering from a disease which affected his capacity to give evidence, it was then incumbent upon the Tribunal to satisfy itself that the appellant could take part in the proceedings.  The failure to do so was also an error or law.

    At paragraph 18, His Honour found that these errors were jurisdictional errors.

12. I find, on the basis of this decision, that there are three legal principles presently binding upon me.  The first is that before the RRT can find that an applicant suffers from post traumatic stress disorder, proper medical evidence is required.  The second is that if the RRT makes a finding that an applicant suffers from PTSD, it cannot make adverse credibility findings without considering the impact of that PTSD on the reliability of the applicant's evidence.  The third is that if the RRT makes a finding that an applicant suffers from PTSD, it must consider whether the applicant can properly take part in the RRT proceedings.

13. A court reviewing a decision of the RRT is entitled to look for and expect to find evidence of these matters in the record of the RRT proceedings.  The decision and reasons of the RRT in this matter, at page 195 of the court book, establishes that the RRT was aware that the applicant was said to suffer from PTSD.  That information was conveyed to the RRT under cover of a letter dated 11 September 2002.  The letter stated that the applicant was receiving treatment from a counsellor and that he exhibited all the major signs of post traumatic distress disorder.

14. The applicant's representative also produced a letter dated 5 September 2002 from a general practitioner stating that the applicant was suffering from PTSD.  The general practitioner also noted some physical manifestations of past physical trauma.  The general practitioner stated that he was treating the applicant with counselling and an anti-depressant as well as drugs for pain. 

15. At page 200 of the court book, the presiding member referred to further correspondence dated 10 October 2002 received from the applicant’s representatives.  In that letter, the applicant’s representatives produced a letter dated 17 September 2002 from a counsellor at the STARTTS counselling service. The counsellor stated that the applicant had attended that service until October 2001 during which time he had made “barely adequate” progress which the counsellor attributed to the “degree and profundity of his trauma.”  However, the counsellor stated that the applicant had had less contact in 2002, as he was better able to bear his problems and had adjusted to his circumstances.  The counsellor said that the applicant became confused when answering questions and sometimes did not answer the question asked.  The diagnosis of post traumatic stress disorder was apparently confirmed by a specialist cardiologist on 1 October 2002.

16. At page 212 of the court book, the presiding member made a material finding.  He stated:

    I accept the evidence of the counsellor, the general practitioner in his letter dated 5 September 2002, and the consultant cardiologist in his letter dated 1 October 2002, that the applicant exhibits symptoms of post-traumatic stress disorder.

17. It appears from the court book, in particular at page 122, that the issue of the applicant's PTSD was raised by his legal representatives as evidence of past harm suffered in Sri Lanka.  It does not appear that the applicant or his representatives raised the issue of the fitness of the applicant to give evidence or participate in the RRT hearing.  The presiding member dealt with the issue of PTSD simply on the basis of its value as evidence of past harm said to have been suffered by the applicant.

18. There is no evidence that the presiding member considered the impact of the applicant's PTSD upon the reliability of his evidence or his capacity to participate in the RRT hearing.  Mr Kennett invited me to infer at least that the presiding member had formed a view that the applicant could participate.  It does not appear that the applicant indicated any distress at the hearing.  In that respect this matter can be distinguished on the facts from the situation which applied in SGLB.  Nevertheless, the principle that I draw from that case is that the RRT still had to consider and make a finding on the applicant’s fitness to participate.

19. I find that there was no consideration by the presiding member of the impact of the applicant's disability upon his capacity to give evidence or participate in the hearing. The presiding member went on to make very detailed findings on credibility based upon an extremely thorough examination of the applicant's claims.  I find that the second and third principles drawn from SGLB have been breached.  I find that in this matter there was cogent medical evidence before the RRT which properly supported the presiding member's finding that the applicant did exhibit symptoms of PTSD.  However, having made that finding the presiding member should have expressly taken into account that PTSD before making adverse credibility findings against the applicant.

20. In making that assessment the presiding member would have had to consider what the medical evidence established about the capacity of the applicant to give reliable evidence.  The presiding member should also have expressly considered and made a finding on the capacity of the applicant to participate in the RRT hearing.  The failure of the presiding member to do this constitutes jurisdictional error consistently with the findings of the Federal Court in SGLB. 

21. I have considered also the decision of the Full Federal Court in Minister for Immigration v SCAR [2003] FCAFC 126. In that case the Full Federal Court found that s.425 of the Migration Act 1958 (Cth) had been breached. The situation in that case was that the applicant was unfit to participate in the hearing due to distress following the death of his father. That was apparently not something that was apparent to the RRT which heard the matter via video-link. The Full Federal Court found that s.425 of the Act is breached where the hearing invitation is merely an empty gesture because of the unfitness of the applicant to participate.

22. I am unable to say in this matter whether or not the applicant was able to participate effectively in the RRT hearing.  However, it appears that the applicant did participate without apparent distress.  In the circumstances, in my view SCAR can be distinguished.  Although the capacity of the applicant to participate in the hearing needed to be determined on proper evidence and was not determined, the hearing opportunity offered to the applicant in this matter was certainly more than an empty gesture. 

23. However, I am unable to distinguish this case from SGLB. I consider that I am bound by the decision of the Federal Court in that case.  I will therefore make a declaration of invalidity of the RRT decision.  I will also order that a writ of mandamus issue requiring the RRT to redetermine the proceeding before it according to law.  I will also order that a writ of certiorari issue quashing the decision of the RRT.

24. I will deal with the issue of costs.  The applicant being wholly successful in the proceedings has asked for an order for costs.  He has represented himself in today's hearing but he tells me that he had, after filing his application for review in this Court, obtained some legal advice.  He tells me that he paid $760.00 for that advice.  The applicant also tells me that he did not have to pay a filing fee for his application in the Court.  However, he would have had some incidental out-of-pocket expenses associated with his application.

25. Mr Kennett submits that given the present uncertainty concerning the applicant's costs and out-of-pocket expenses, the preferable approach would be to make a general order for costs to be determined on a later occasion.  However, consistently with my general approach in migration proceedings, I do not want to put the parties to unnecessary trouble and expense.  Whatever expenses may have been incurred by the applicant appear to have been quite modest.

26. In my view, the sum of $500.00 would be adequate recompense for whatever costs were out of pockets the applicant may have incurred.  I will order that the respondent pay the applicant's costs and disbursements of and incidental to the application which I fix in the sum of $500.00.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date: