SZASF v Minister for Immigration - [2004] FMCA 473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASF v MINISTER FOR IMMIGRATION

[2004] FMCA 473

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether RRT proceedings fair considered – applicant claimed a mental illness and sought an adjournment of the RRT hearing – psychiatric report obtained by the RRT stated that the applicant was malingering – RRT then invited the applicant to a hearing which he declined – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424, 424A, 425, 425A, 427, 441

Minister for Immigration v SGLB [2004] HCA 32
Re Minister for Immigration; Ex parte Applicant S154/2002 [2003] HCA 60

Applicant:

SZASF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ989 of 2003

Delivered on:

29 July 2004

Delivered at:

Sydney

Hearing date:

29 July 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms R Pepper

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Court directs that the exhibit is to be returned to the respondent at the conclusion of the proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ989 of 2003

SZASF

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 April 2003 and handed down on 20 May 2003. The RRT affirmed a decision of the delegate of the respondent not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. The relevant background facts are set out in written submissions prepared on behalf of the respondent Minister by Ms Pepper. I adopt paragraphs 2-13 of those written submissions for the purposes of this judgment:
The applicant was born in Bangladesh on 10 August 1970. On 15 January 2001 he lodged an application for the visa with the Department of Immigration and Multicultural and Indigenous Affairs on the basis of political activity by reason of his active membership of the Freedom Party from 1990-2000 (court book, pages 1-33).
He alleges that during the 1996 election campaign he gave a speech at a large Freedom Party rally. However when the Awami League (“AL”) came to power in 1996 they began to harass Freedom Party members and filed false cases against them. Notwithstanding this harassment the applicant continued his active role in the Party acting as a party messenger.
On 1 July 2000 the applicant discovered that a false case had been filed against him and a warrant had been issued for his arrest. He then fled the country arriving in Australia on 16 December 2000.
He has since been told by his family that the police have come looking for him and that he should not return home to Bangladesh.
Proceedings before the RRT
A hearing before the RRT was due to take place on 29 January 2003 (court book, pages 52-53 and 54-55). On 20 January 2003 the applicant’s adviser sent a letter to the RRT requesting an adjournment of at least three months because of the mental unfitness of the applicant to appear before the RRT to give evidence (court book, page 56). A report from a consulting psychologist dated 18 January 2003 was attached to the adviser’s letter (court book, pages 57-59) and it stated that the applicant was suffering from a general anxiety disorder related to the applicant’s family (court book, page 59).
The hearing date was then altered to 31 January 2003 for unrelated reasons (court book, page 60). On 24 January 2003 the applicant indicated that he would attend the hearing (court book, page 61). Again a request was subsequently made by the applicant to postpone the hearing for 2-3 months and another generalised report of the same psychologist was attached (court book, pages 63-64).
Because of the generalised nature of the report the RRT refused the adjournment (court book, page 79). However, when the applicant attended the hearing (court book, page 62) he was unresponsive, claimed he could not remember things and that he had a headache (court book, page 79). In the circumstances the RRT did not proceed with the hearing and made arrangements to have the applicant examined by a psychiatrist in order to ascertain his mental health and whether or not he was fit to attend a hearing (court book, pages 65-68).
The report was received on 27 March 2003 and it stated that the applicant was neither depressed nor anxious but was malingering, did not have a psychiatric disorder and was fit to attend a hearing before the RRT (court book, page 79).
The RRT held that the applicant did not have a psychiatric disorder and was psychologically fit to attend a hearing (court book, page 82). The [respondent asserts that the] substance of the report and the findings of the RRT were put to the applicant (court book, page 69) and he was invited to give oral evidence at a hearing on 6 May 2003 (court book, page 69).
On 22 April 2003 the applicant’s adviser notified the RRT that the applicant would not attend the hearing and requested the RRT to make a determination on the material before it (court book, pages 70-71). The RRT held at that hearing that it was satisfied the decision of the applicant not to attend was a conscious one on his behalf and not due to any psychological unfitness (court book, page 82).
The RRT affirmed the delegate’s decision because (court book, page 82):
a)the applicant had offered no proof that he was active within the Freedom Party and on the material before it she did not believe the claim;
b)notwithstanding the alleged charges laid against him and his fear after the election of the AL in 1996, he freely travelled between Bangladesh and Singapore in 1998 and 1999 and offered no explanation as to why, notwithstanding this fear, he kept returning to Bangladesh or why he was allowed to leave the country; and
c)the applicant failed to explain why he thought the political situation would change (his explanation for why he did not leave for Australia as soon as he had obtained a visa) if the AL were still in power.
Thus the RRT found that it was not satisfied that the applicant was involved in the Freedom Party and because of this finding, it followed that it could not find that any [politically motivated] charges had been laid against him (court book, page 82). Accordingly the RRT found that he did not have a well found fear of persecution for reasons of his political opinion or activity (court book, page 82).
The applicant proceeded on the basis of an amended application filed on 15 July 2004. The applicant also filed written submissions on the same day. They were not served on the respondent but Ms Pepper agreed to proceed today nevertheless. The amended application and written submissions assert a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). They also assert generally a denial of natural justice or procedural fairness and procedural mistakes.
The applicant was not able to usefully expand upon these propositions in his oral submissions. However, he did alert me to what is the real issue raised in the amended application. That real issue is whether the RRT erred first in not disclosing a psychiatric report obtained about the applicant to the applicant, and secondly, whether the RRT erred in deciding that the applicant was fit to attend a hearing and that, as the applicant had declined to attend at the time chosen by the RRT, the RRT could proceed to make a decision without a hearing.
The applicant told me from the bar table, and it is not disputed, that he was not given a copy of psychiatrist's report which was dated 12 March 2003. I accept that. The report was not included in the book of relevant documents either. It clearly is a relevant document and in my view should have been included in the court book. It was withheld both from the applicant and the Court because of concerns expressed by the psychiatrist about his personal safety. The psychiatrist was not concerned about any threat posed by this particular applicant. However, he apparently had received threats on previous occasions and requested that the report not be disclosed.
The report was obtained in circumstances where the applicant had asserted a mental illness and had provided psychologists reports testifying to that assertion. The applicant has indicated an inability to answer questions at a hearing before the RRT. In the circumstances, the RRT presiding member decided that it was unproductive to continue and arranged for the applicant to attend the psychiatrist and for a report to be obtained. The presiding member deals with these circumstances at page 78 and 79 of the court book. The presiding members says:
A hearing in this matter was due to take place on 31 January 2003. The applicant's adviser sent a letter to the Tribunal on 20 January 2003 requesting that the hearing be postponed for at least three months because the applicant was suffering from a mental illness. A report from a consulting psychologist was attached to the adviser's letter. This report stated that the applicant was suffering from a generalised anxiety disorder. This condition was apparently related to unspecified problems in the applicant's immediate family and the applicant's concern that he would not be able to support himself and his family if his application were rejected and he had to return to Bangladesh. The report went on to state that the applicant was “not in a position to attend an interview with the authorities at this time” and that “if he could be granted 2-3 months time he should be able to answer all questions put to him in a proper manner” (sic).
The presiding member went on:
As it was not clear from the report what treatment the applicant was receiving, or why a two to three months postponement of the hearing was going to make any difference to either the applicant's anxiety or his ability to answer questions, the request for an adjournment was refused. However, when the applicant attended the hearing, he was unresponsive to questions, claiming that he could not remember things and that he had a headache. The only time the applicant said something clearly was when he asked his adviser whether he had sent a copy of the psychological report to the Tribunal.
In the circumstances I did not proceed with the hearing. The Tribunal subsequently made arrangements with Health Services Australia Ltd (HSA) for the applicant to be examined by a psychiatrist. This was done in order to ascertain the applicant's psychiatric state and his ability to attend a hearing and answer questions in relation to his claims. In the report subsequently received from HSA on 27 March 2003, the psychiatrist who examined the applicant expressed the view that the applicant was neither depressed nor anxious and that he was malingering. The psychiatrist concluded that the applicant did not have an ongoing psychiatric disorder and that there was no reason he could not be questioned in relation to his claims for refugee status.
The psychiatrist’s view that the applicant was fit to attend a hearing was put to the applicant and he was invited to attend a hearing and give oral evidence on 6 May 2003. On 22 April 2003 the applicant's adviser notified the Tribunal that the applicant did not propose to attend the hearing and requested the Tribunal to make a decision on the information available to the Tribunal.
The presiding member then proceeded to identify the material before the RRT and the applicant's claims and consider them. The presiding member found a lack of credibility in the applicant's claims. The presiding member found that the applicant was not then suffering from a psychiatric disorder and in making that finding preferred the psychiatric report to the earlier psychologist’s reports. However, that finding was not relevant to the rejection of the application for a protection visa. It is clear from what the presiding member says on page 82 of the court book that the applicant's claims failed on their merits.
In the circumstances, no issue of a breach of s.424A of the Migration Act arises. The obligation of disclosure arising in s.424A(1) relates to information that would be the reason or part of the reason for affirming the decision that is under review. The psychiatrist report was relevant to the decision by the RRT to issue a hearing invitation on 27 March 2003 and to proceed to make a decision when the applicant declined that invitation. However, the psychiatrist’s report was not the reason or part of the reason why the RRT affirmed the delegate's decision.
I do not rule out the possibility that some obligation of disclosure may have arisen under the general law. If an obligation of disclosure did arise under the general law it was met by the RRT’s letter dated 27 March 2003. That letter sets out the two key opinions proffered by the psychiatrist. Those opinions were that the applicant did not have a psychiatric disorder and was fit to attend a hearing.
I required the report to be produced to me. The report became an exhibit. I invited the applicant to look at it but he declined. The doctor relevantly opined as follows:
He [the applicant] was not able to give me answers to simple questions such as how long he had been at school or what sort of work his father did. He was given ample time to answer questions. As mentioned in the commencement of this report even people with major depression can give answers to these types of questions provided they are given sufficient time. I gave the applicant sufficient time to answer these questions even if he had been morbidly depressed. My assessment of his mood state was that he was neither anxious nor morbidly depressed and I believe that he was malingering.
The doctor concluded:
I see no reason why this man should not be interrogated regarding his refugee status. I do not believe that he has an ongoing psychiatric disorder. I believe the history he gave, his general presentation and his inability to answer even the simplest questions tended to underline his evasiveness.
In my view, the essential details of those opinions were contained in the letter dated 27 March 2003. The applicant could, if he had wished, sought to challenge that opinion. He did not do so and he did not seek access to the report. He confirmed that to me from the bar table.
The other question is whether there was a breach of s.425 of the Migration Act or the RRT’s obligations under the general law to ensure that the applicant had an opportunity to be heard. If an applicant is not well enough to attend a hearing an invitation to attend issued in the knowledge of that disability is merely an empty gesture. The applicant had asserted that he was too ill to attend and that assertion was investigated by the RRT. The applicant's assertion was found to be not credible in the light of the psychiatrist's report. In my view, the conclusion reached by the RRT on the question of the applicant's mental health was reasonably open to it on the material before it. The RRT acted appropriately in pursuance of its powers under the Migration Act. The RRT acted in a way which was procedurally fair. As to that I adopt Ms Pepper's submissions in paragraphs 16 through to 18 of her written submissions:
In the “grounds of the the application” contained in his application, the applicant states that he was denied procedural fairness as a result of the RRT proceeding with the hearing on 6 May 2003 because the RRT did not permit him sufficient time to recover from his “health condition”. It is not clear, but it appears that the denial arose as a result of the RRT not acceding to his initial request to adjourn the hearing for 2-3 months and in referring him for assessment and then persevering with the hearing once the psychiatric report was received: see paragraph 3.
The RRT was, however, entitled to seek the report it did in relation to the applicant’s mental health: ss.424 and 427(d) of the Migration Act. The applicant was informed of the report’s content and the RRT’s findings in regard thereto (court book, page 69) and the applicant was invited to attend a further hearing to put any additional evidence he wished to rely upon: ss.425A and 441. When the applicant declined to attend, the RRT was then entitled to determine the matter on the evidence before it.
The RRT was, on the material before it, reasonably entitled to prefer the evidence of the psychiatrist over that of the psychologist proffered by the applicant and to make a finding of fact that the applicant was not suffering from a mental disorder and that he was fit to stand trial (court book, pages 81-82): Minister for Immigration v SGLB [2004] HCA 32 at [41] and [44]. Once it had made this finding then there was no failure afford procedural fairness by refusing to grant an adjournment either initially or subsequently, that threshold issue having been determined. It was the applicant’s deliberate decision not to attend the second hearing in order to put further evidence before the RRT and thus no denial of procedural fairness could be said to flow from the RRT’s decision to proceed to determine the matter on the evidence before it in his absence. The applicant has not filed any evidence deposing as to what evidence would have been led by him had he attended the hearing either on 6 May 2003 or at some later point in time: Re Minister of Immigration; Ex parte Applicant S154/2002 [2003] HCA 60. It was open to the RRT on the evidence before it to make the findings it did (at court book, page 82).
Those submissions are responsive to the original rather than the amended application but the amended application raises the same issue.
The conclusion I reach is that there is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision. I must dismiss the application.
On the question of costs, the application having been dismissed, Ms Pepper seeks an order for costs. I agree that costs should follow the event. Ms Pepper's instructions are that on a party and party basis the Minister's costs are approximately $4,000. I accept that assessment as reasonable in the circumstances of this matter. The applicant did not wish to make any submissions on costs.
I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 August 2004