SZAPT v Minister for Immigration

[2009] FMCA 1082

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPT v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1082

MIGRATION – Review of RRT decision – applicant a citizen of Bangladesh – where applicant claimed to have suffered depression and memory loss as a result of his immigration detention – whether Tribunal failed to investigate this claim and consider the effect the applicant’s condition might have on his ability to given evidence.

Migration Act 1958 (Cth) ss.48A, 48B, 424A

Minister for Immigration v SGLB (2004) 78 ALD 224

Applicant: SZAPT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1474 of 2009

Judgment of: Raphael FM

Hearing date: 23 October 2009

Date of Last Submission: 23 October 2009

Delivered at: Sydney

Delivered on: 23 October 2009

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr H Bevan

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. By consent, the Applicant’s time for filing his application for review be extended to 22 June 2009.

2. Application dismissed.

3. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1474 of 2009

SZAPT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 1 September 2001 and who first applied for a protection (Class XA) visa on 5 September 2001. That application was dismissed by a delegate, confirmed by a Tribunal and went through the usual processes of judicial review up to the High Court. However, on 24 August 2008 the Minister exercised his power under s.48B Migration Act 1958 (Cth) (the “Act”) and determined that s.48A did not apply to prevent the applicant from applying again for a protection visa. He did this on 15 October 2008 and the delegate refused to grant the visa on 8 January 2009. The applicant applied to the Refugee Review Tribunal for a review of that decision on 2 February 2009. The applicant attended a hearing before the Tribunal which, on 6 May 2009, determined to affirm the decision not to grant a protection visa, which it handed down on 7 May 2009.

2. The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations arose from his claimed association with the BNP in Bangladesh.  The applicant claimed that three incidents had happened to him in that country.  The first was in June 1999, the second in April 2001 and the third in June 2001.  He had also received threats and letters from the Awami League and other fundamentalists.  The applicant claimed to have joined the BNP through its student association, the Jatiotabadi Chatra Dal, and to have been a cultural secretary and an active supporter and member of the political party.  The final incident that occurred to the applicant stemmed from his being a member of a musical group that was performing when a bomb blast took place.  It is understood that the bomb was actually set by Muslim fundamentalists, who objected to public music displays, and not the Awami League. 

3. After the applicant had left Bangladesh for Australia, he joined the Australian Branch of the BNP and became quite active in it, being made the cultural secretary of that organisation.  The Tribunal:

   “accepted on the basis of the documentary evidence and letters of support that the applicant was involved in protests in Canberra on 23 April 2007 outside Parliament House in Canberra, and in Sydney on 20 July 2007 outside the State Parliament of New South Wales, against the caretaker government of Bangladesh for its lack of democracy and for its treatment of Tareque Raakman.  It accepts, as a result, that he may have come to the notice of the High Commission in Australia and, possibly, the caretaker government and its apparatus, including the intelligence agencies, Immigration and RAB, as protests were banned by that caretaker government.  It accepts his oral evidence that this was the last protest he attended in Australia.  It accepts that he has attended other functions of the BNP in Australia, as outlined in his recent evidence, submitted to the Tribunal after the hearing.

   It finds that section 91R(3) does not apply and the applicant’s conduct in Australia, in being involved with the BNP and attending the protests and meetings are otherwise than  for strengthening his claim to be a refugee.” [CB 316]

4. The Tribunal questioned the applicant about his claims and, in particular, about inconsistencies in the earlier claims about his conduct in Bangladesh. The Tribunal utilized the provisions of s.424A and the applicant gave his responses at the hearing and also in a written submission made thereafter, which the Tribunal took into account. The Tribunal concluded, in relation to the claims of political activity in Bangladesh, which included claims of false charges being laid against him, that the applicant’s evidence could not be accepted. At [CB 119] the Tribunal sets out some internally inconsistent evidence that the applicant gave in regard to this matter. The Tribunal noted at [121] [CB 315] that the applicant did not claim to fear to return to Bangladesh because of the Muslim fundamentalists. The Tribunal noted the applicant’s delay in leaving Bangladesh in 2001 and said:

   “[122] The Tribunal would expect that if he left Bangladesh as a result of these incidents individually or cumulatively, he would have left earlier, not waited for approximately three months after the false charges were laid against him if he genuinely feared persecution in Bangladesh.  His excuse, that he was thinking which country to travel to and where he will be safe – and he did this while in hiding – is not accepted by the Tribunal as it would expect a person in hiding fearing serious harm would not have waited that long.

   [123]  In summary, while the Tribunal accepts that the applicant may have been involved in the BNP student wing in 1999 in his student days it does not accept that he came to the negative attention of the Awami League or its student wing and that as a result they physically attacked him, verbally threatened him or sent him letters or were involved in laying false charges against him;  it does not accept that he left Bangladesh because of any difficulties he faced as a result of the Awami League or its student body.  While the Tribunal has doubted that he was involved at the level with the local or student body of the BNP in his student days or was as active in demonstrations, protests and speeches as he claims, even if accepted, as it does not accept he was targeted for such a role by the Awami League and as it is now eight years ago, the Tribunal does not accept that he will be targeted if he returns in the reasonably foreseeable future for such a role or any involvement with the BNP student wing in Bangladesh by the Awami League or its student arm.”

5. The Tribunal then turned to consider the applicant’s claims arising out of his activities in Australia.  The Tribunal concluded in this regard that activities outside of Bangladesh against the caretaker government were carried out not only by the BNP but also by the Awami League and they were general protests against the lack of democracy in Bangladesh.  The Tribunal noted that the government in Bangladesh has changed and that the caretaker government is no longer in power:

   “Due to the change in government in Bangladesh and as the RAB, intelligence agencies and immigration are answerable to the government in power, the Tribunal does not accept that the applicant will face persecution by these agencies for being involved in those protests in 2007 if he returns to Bangladesh in the reasonably foreseeable future as similar protest were also undertaken by the current regime and as the government has changed.” [132] [CB 317]

6. The Tribunal also considered the applicant’s claimed fear of persecution as a member and political activist of the BNP and repeated the view that I have already adumbrated that his activities in Bangladesh have been exaggerated.  He noted that he had not attended a protest since 2007 and that he was only the cultural secretary in Australia and was not in a leadership role so it did not accept that he was as active and prominent as he claimed: 

   “Nevertheless the Tribunal has accepted that he has been involved with the BNP both in Australia and Bangladesh for almost 10 years and has been involved in protesting for the BNP, involved in its functions, giving speeches, attending meetings and fundraising and would expect this conduct to continue if he returned to Bangladesh.  However, on the basis of the country information and the reasons below the Tribunal does not accept that either his involvement with the BNP in Australia or his likely involvement with the BNP in Bangladesh in a manner similar to that in which he was involved in Australia and formerly in Bangladesh will result in there being a real chance of him facing serious harm or persecution.”

7. During the lengthy period in which this applicant has been in Australia, he spent some time in immigration detention.  He claims that as a result of that experience he has become depressed and that this depression caused him problems in relation to the giving of evidence at the Tribunal hearing.  It is in relation to this matter that the applicant claims the jurisdictional error occurred in his amended grounds of application filed in this Court on 12 October 2009.  The question of the applicant’s medical condition was a matter that was referred to at the Tribunal hearing. 

   “He said he was in detention for one year in Australia and has forgotten things and suffers from depression. He said he saw a doctor in the detention centre about this. The Tribunal asked whether he had seen a doctor since he left the detention centre about his depression and he said no, as he did not have money. The Tribunal asked why he would not see a doctor if he was on Medicare. He said he told the doctor from the Department about his depression.

   The Tribunal asked whether he had seen a doctor since he left the detention centre for his depression and he said no. The Tribunal asked whether he was on any medication and he said no but that he is suffering depression. He said he had been detained for one year in Australia and he has been released for about seven months.

   The Tribunal said it was surprised that if he was suffering depression that was affecting his memory, he would not have gone to see a doctor to obtain help and medication, when he claims he had already seen a doctor in the detention centre. He said when he was in detention it came and went and when he was released it got better, but it is still not okay and he has no work permission and is staying at his guarantor’ s home.” [54 - 56] [CB 301]

8. At [115] [CB 313] the Tribunal discusses the applicant’s evidence and the inconsistencies in it:

   “When the Tribunal questioned the applicant regarding these inconsistencies he said he felt sick at the department interview and told the Tribunal at the hearing in 2003 everything and that it is true he went into hiding in Dhaka in 2001 and there are a number of mistakes and he does not have money for lawyers.  The Tribunal would expect as it is in an event of such significance that if he went into hiding in Dhaka to flee the Awami League continuously in 2001 despite the passage of time he would have been consistent in the Tribunal hearings in his previous statement and department interview in this regard.  The Tribunal has considered his claims that his inconsistencies are as a result of his mental suffering because of his detention in Australia but notes that at the previous Tribunal hearing (differently constituted) and his statement in his first protection visa application were made prior to his detention in Australia which was in 2007/2008, the claimed source of his depression.  The Tribunal would therefore expect if it was true as he now claims that he went into hiding continuously in Dhaka in 2001 that he would have raised it at those earlier opportunities.”

9. At [118] [CB 314] the Tribunal says: 

   “The applicant claimed he was sick at the department interview and cannot talk in a properly ordered manner, because he suffers depression.  For the reasons set out below where the Tribunal considers his claims of mental difficulties in giving evidence, because of his mental condition, caused by his detention, the Tribunal does not accept this.  It would expect that if he was a member of the main BNP party when in Bangladesh that he would have been consistent in this regard.  It finds him not to be a witness of truth in this regard and not to have been involved as a main member of the BNP in Bangladesh…”

   Finally, at [CB 141] under the heading, “Claimed memory difficulties as a result of the depression,” the Tribunal says:

   “The applicant also claimed as a reason for his internal inconsistencies he is depressed because of his detention in Australia for one year in 2007/8. He indicated that he saw a doctor while in detention in Australia regarding this. However the Tribunal does not accept this as a reason for his inconsistencies as there is no medical evidence to support his claim of depression. The Tribunal would expect that if the applicant had seen a doctor in detention and if he continued to feel depressed he would have seen a doctor or sought other assistance since that time to obtain medicine or other help to relieve the symptoms.”

10. In the amended grounds of application there are seven paragraphs.  Paragraphs 1 and 2 and paragraphs 3 and 5 seem to be the same.  Paragraph 1 reads:

    “The Tribunal failed to properly investigate and consider whether the applicant was suffering from depression and the impact that condition might have on him giving evidence and his ability to recollect events.”

11. It is not correct to say that the Tribunal did not consider whether the applicant was suffering from depression, as the extracts of the Tribunal’s grounds and reasons, quoted above, clearly indicate.  With regard to the complaint that the Tribunal failed to investigate his condition, I note that in Minister for Immigration v SGLB (2004) 78 ALD 224 Gummow and Hayne JJ say at [43] of an alleged ground of error for the Tribunal to proceed to make credibility findings in relation to an applicant’s evidence without evidence as to what effect PTSD might have had on his capacity to give that evidence:

    “This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability… Secondly, while s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather s.426 provides that even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist) the Tribunal is not required to obtain such evidence, thus the Tribunal is under no duty to inquire.”

12. The second ground was that:

    “The Tribunal failed to investigate and consider whether the applicant was entitled to Medicare benefits and incorrectly assumed the applicant was entitled to Medicare benefits and could have obtained medical assistance.”

    I think that this ground is unsustainable for two reasons.  Firstly, because I do not really think that the applicant’s ability to obtain medical assistance was relevant to the Tribunal’s decision.  It gave its views about his ability to give evidence on the basis that there was no medical evidence to support the claim of depression and not because he had not sought assistance.  That seems to me to have been a supplementary view expressed by the Tribunal as a make weight.  In any event, the second reason is that the Tribunal at [54] [CB 301] asked the applicant why he did not see a doctor if he was on Medicare and there is no evidence that the applicant then told the Tribunal that he was not.  So the inference that the Tribunal drew about his ability to see a doctor was an inference that was available on the evidence before it.  The applicant has not provided me with a transcript, which would allow me to investigate the matter further and to refute the conclusions that I have drawn here.  The fourth matter raised by the applicant was that:

    “The Tribunal in rejecting the claims of the applicant to suffer mental difficulties stated it did so “for the reason set out below ” (par.118) but in fact failed to give any reasons and in so doing failed to give reasons for its decision.”

13. I do not think this claim is sustainable.  There are six lines following the words “set out below” which go directly to the point being made and in addition there is the whole paragraph relating to memory difficulties contained at [141] [CB 319].  I therefore cannot accept, as the applicant states in paragraph 6 of his grounds, that the Tribunal failed to give him a fair hearing or, as he states in paragraph 7, that the Tribunal has committed a jurisdictional error. 

14. When the applicant appeared before me today he asked to file an affidavit made on 20 October 2009 in which he stated that he had made inquiries of Medicare and he understood he was not entitled to health benefits and that he did not have health benefits, he did not have a Medicare card and that he had been unable to afford medical assistance in Australia.  He also attached to that affidavit a summary of a psychological assessment made upon him very recently.  The diagnostic consideration and impression contained in that report was in the following form:

    “Applicant is extremely anxious and worried for his present condition and for his future which will be resolved at a court hearing, 23 October.  In the meantime he has been allowed to stay in Australia without rights to work and have no access to medical services under Medicare.  He is presenting symptoms of anxiety and depression as a reaction of various external stressors such as a general uncertainty, lack of fixed allocation, limited financial situation.  He has recently been granted $90 a week for food and basic expenses.  Lack of Family Support; he has lost contact with relatives in Bangladesh as he feels shameful due to his present condition, has withdrawn from friends and acquaintances for the same reason.”

15. This diagnosis does not make any reference to the applicant’s ability to recall matters at a Tribunal hearing which had taken place some months beforehand and, in these circumstances, I cannot see that it is relevant to the hearing before me.  In any event, I note that the complaints of inconsistencies which the applicant seeks to rebut by this medical evidence are claims relating to earlier hearings that all took place before the applicant’s detention and hence his ground for suffering from depression.

16. I am of the view that the applicant is unable to show that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this matter.  I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00. By consent the applicant’s time for filing his application for review is extended to 22 June 2009.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  5 November 2009