SZGUR v Minister for Immigration & Anor

[2009] FMCA 750

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 750

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to put dispositive issue to applicant pursuant to s.425 where “Alternative basis”– no jurisdictional error in separate and independent basis for decision – Tribunal entitled to make findings as to applicant’s memory difficulties – Tribunal took into account relevant material – adverse credibility finding made within jurisdiction – no illogicality or unreasonableness – no obligation on Tribunal to obtain further information from medical practitioner where medical certificate insufficient to support applicant’s claims – country information fell within exception in s.424A(3)(a) – applicant seeking impermissible merits review – no jurisdictional error – application dismissed.

MIGRATION – Application to re-open argument – whether unreasonableness in Tribunal failing to make enquiries of applicant’s medical practitioner – whether SGLB or Prasad  to be applied to circumstances – obligation in Prasad does not arise in circumstances – no obligation on Tribunal in circumstances to make further enquiries – no unreasonable analysis in Tribunal’s decision – application to reopen argument dismissed.

Migration Act 1958 (Cth), ss.424A, 422B, 424, 425

Administrative Decisions (Judicial review) Act 1977 (Cth)

SZGUR v Minister for Immigration & Anor [2007] FMCA 1946
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20 /2002 [2003] HCA 30; (2003) 198 ALR 59
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB  [2004] HCA 32; (2004) 207 ALR 12
SZIYN v Minister for Immigration and Citizenship [2008] FCA 151
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256
VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
MZXGR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1167
SZEVE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 390
Prasad v Minister of Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Luu v Renevier (1989) 91 ALR 39
Tichner v Bropho (1993) 40 FCR 183
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83

Applicant: SZGUR

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2565 of 2008

Judgment of: Nicholls FM

Hearing dates: 24 March, 2 April & 13 May 2009

Date of Last Submission: 2 June 2009

Delivered at: Sydney

Delivered on: 7 August 2009

REPRESENTATION

Appearing for the Applicant: Mr L Karp (in part)

Submission for the Applicant:

Solicitors for the Applicant:

Ms T Jowett/ Mr L Karp

In person

Appearing for the Respondents: Mr M P Cleary/Mr R Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 24 April 2009 to reopen the applicant’s case, and for a further amended application to be made, is dismissed.

2. The application made on 3 October 2008, and amended on 19 March 2009, is dismissed.

3. The Minister’s application for costs in this matter is to be heard on Wednesday, 12 August 2009, at 10.15am before Federal Magistrate Nicholls.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2565 of 2008

SZGUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 3 October 2008, and amended on 19 March 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 3 September 2008, and handed down on 16 September 2008, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

2. The Court also has before it an application made on 24 April 2009 seeking leave for the applicant’s matter to be reopened. [Following the final hearing held on 2 April 2009.]

Background

1. The first respondent has put a bundle of relevant documents before the Court in this matter (the Court Book (“CB”)). I note the following as relevant background.

2. The applicant is a citizen of Nepal who arrived in Australia on 18 December 2004, and applied for a protection visa on 21 January 2005 (see CB 1 to CB 26). This application was refused by a delegate of the respondent Minister on 11 February 2005 (CB 32 to CB 39). On 16 March 2005 the applicant applied to the Tribunal for review of that decision. (CB 40 to CB 43).  The Tribunal (“the first constituted Tribunal”) made its decision to affirm the decision under review on 23 June 2005.

3. By order of this Court dated 26 April 2006, the decision of the first constituted Tribunal was quashed and the matter was remitted to the Tribunal. The applicant attended a hearing before a differently constituted Tribunal (“the second constituted Tribunal”) on 11 July 2006. It handed down its decision to affirm the decision under review on 22 August 2006. By order of this Court dated 28 November 2007 (see judgment – SZGUR v Minister for Immigration & Anor [2007] FMCA 1946 at CB 144 to CB 158) the matter was again remitted to the Tribunal. The Tribunal made the decision that is under review before this Court on 3 September 2008 (“the Tribunal”).

The applicant’s claims to protection

1. The applicant claimed to fear harm in Nepal because of his political opinion or imputed political opinion in support of the Maoists. He claimed to have collected donations for the Maoists and to have given information to Maoist leaders. He feared persecution from the Royal Nepalese Army (“RNA”), who had become aware of his identity since he left Nepal. He claimed that the army would seek out and execute Maoist sympathisers. He also claimed that the government would not be able to protect him against the RNA.

The Tribunal

1. The applicant attended hearings on two occasions before the Tribunal – 6 March 2008 and 2 April 2008, where he gave evidence in support of his claims. (See CB 239 to CB 261 for the Tribunal’s account of what occurred at the hearings.) He was represented by a registered migration agent, and was assisted by an interpreter in the Nepalese language at both hearings.

2. The Tribunal also corresponded with the applicant as follows:

   1)By letter dated 21 January 2008 the applicant was given the opportunity to provide further documents and written arguments (CB 162 to CB 163).

   2)By letter dated 11 April 2008, the Tribunal invited the applicant to comment on, or respond to, information that it indicated would be the reason or part of the reason for affirming the decision under review (CB 187 to CB 192).

   3)The applicant responded to this letter sent by facsimile on 28 April 2008 seeking (amongst other things) an extension of time within which to respond (CB 194).

   4)By letter dated 29 April 2008, the Tribunal granted the extension of time (CB 195).

   5)The applicant’s representative requested a further extension of time on 20 May 2008 (CB 198 to CB 200), which enclosed a medical certificate and statutory declarations attesting to the applicant’s mental “illness” or condition.

   6)That request for an extension of time was granted by the Tribunal on 27 May 2008 (CB 217).

   7)The applicant submitted his response on 20 June 2008, stating that he could “not remember things” and that because of his depression and associated mental illness, he could not respond directly to the information sought by the Tribunal (CB 219 to CB 220). Also included were a doctor’s certificate, stating that he was being treated for “Bipolar Mood Disorder” (CB 221), and other statutory declarations (CB 222 to 226).

The Tribunal’s findings

1. The Tribunal rejected the applicant’s factual claims. It found that the applicant lacked credibility. This was based on what the Tribunal found to be the many “incorrect”, “inconsistent”, and “contradictory” statements put forward by the applicant before the delegate and the Tribunal. It found that he: “was not a supporter of and closely associated with the Maoists; did not collect money for the Maoists or provide security information; the army was not looking for him: and he and his family did not go into hiding” (CB 262.2).

2. The Tribunal had regard to the following:

   1)Decision records of the first and second constituted Tribunals.

   2)Hearing tapes of the hearings conducted before the first and second constituted Tribunals on 27 May 2005 and in July 2006.

   3)The Minister’s Department’s files and databases.

   4)The delegate’s decision and associated material.

   5)A range of country information (see, in particular, CB 250, and CB 258 to CB 261).

   6)The applicant’s oral evidence (CB 236).

   7)Other evidence submitted by the applicant (CB 237).  

3. In what it described as an “Alternative basis” the Tribunal found that it had not accepted the factual basis for the applicant’s claims, but that even if it had, recent elections in Nepal had resulted in the “Maoists” being “surprise winners” and that the Maoist leader had been sworn in as Nepal’s Prime Minister. On the basis of this “country information” there would not be a real chance of persecution if the applicant were to return to Nepal.

4. The Tribunal came to an “overall finding” that there was no “plausible evidence” that the applicant had ever experienced persecution in Nepal for any Convention reason, nor that he would encounter such persecution upon return to Nepal. It therefore concluded that the applicant did not have a well-founded fear of persecution and that Australia did not have protection obligations to him pursuant to the UN Refugees Convention (CB 269). 

Before the Court

1. The history of this matter before the Court now is as follows:

   1)The application to the Court was made on 3 October 2008.

   2)The applicant appeared before a Registrar of the Court on 23 October 2008. Amongst other things, the matter was set down for final hearing before Raphael FM on 6 March 2009.

   3)On that date his Honour vacated the hearing and the matter was set down for hearing before me on 24 March 2009. The applicant was also given leave to file any amended application before 17 March 2009.

   4)On 19 March 2009 the applicant filed an amended application in the following terms:

   “1. The Tribunal made serious errors of fact-finding which went to the fundamental parts of the claim involving the medical and other documents relating to the Applicant’s mental health; and

   2. The Tribunal did not write to the Applicant requesting that he provide additional information under s. 424A of the Migration Act 1959 [sic – 1958] (C’th) and informing him of the information that it had before it that would be the reasons, or part of the reasons, for deciding that he is not entitled to a protection visa in relation to the and country information that was not available at the time of the hearing or at the time of the s. 424A invitation to comment.”

   5)The grounds were drafted with the assistance of Counsel (Ms T Jowett). Submissions for the applicant, drafted 18 March 2009, were also filed on 19 March 2009. These were drafted by the same Counsel.

   6)On 24 March 2009 the applicant appeared in person at the hearing. Mr M Cleary of Counsel appeared for the first respondent.

   7)It appears that the applicant had some expectation that Ms Jowett would appear for him. No interpreter had been arranged in the circumstances. He was not prepared to proceed without Ms Jowett and sought “a little bit more time” to contact her. As there was no interpreter available, the hearing, in any event, could not proceed. The matter was set down for hearing on 2 April 2009 to enable the applicant to contact Counsel.

   8)On 2 April 2009 the applicant again appeared in person. He was assisted by an interpreter in the Nepalese language. Mr M Cleary of Counsel again appeared for the first respondent.

   9)The applicant confirmed that he was content to proceed.

   10)During the course of the hearing an issue arose about the discretionary nature of the relief sought by the applicant and its application to the matter before the Court in circumstances where the Tribunal had made a reference to an “Alternative basis” for affirming the decision under review.

   11)Leave was granted for the first respondent to file and serve further written submissions on this issue by 6 April 2009. Leave was granted to the applicant to file and serve written submissions in response by 15 April 2009. The matter was to be considered reserved at the expiry of that date.

   12)The first respondent’s submissions were filed on 6 April 2009. No submissions in response were filed by the applicant.

   13)On 24 April 2009 the applicant filed an application that the matter be reopened to hear further argument. The application was prepared by Counsel (Mr L Karp). This matter was set down for hearing on 13 May 2009.

   14)On 12 May 2009 the applicant filed submissions in support of this application. These submissions were drafted by Mr Karp.

   15)On 13 May 2009 Mr Karp appeared for the applicant. Mr R Baird appeared for the first respondent.

   16)Mr Karp submitted that he was not seeking the opportunity to advance a new ground, but the opportunity to put further argument in relation to ground one of the amended application, and to amend ground one accordingly.

   17)The Minister opposed the application.

   18)Following argument from both sides, leave was granted for the applicant to file further written submissions in support of the application by 22 May 2009. Leave was granted to the first respondent to file further submissions by 29 May 2009.

   19)Leave was granted on the basis that on receipt of submissions the Court would either proceed to Judgment on both the applicant’s applications or, if necessary, grant the application to reopen and conduct a further hearing.

   20)The applicant’s submissions were filed on 22 May 2009. The respondent’s submissions were filed on 29 May 2009.

   21)The applicant also filed a reply in clarification on 2 June 2009.

Consideration of the amended application

1. At the hearing on 2 April 2009 the applicant sought to rely on submissions drafted by Ms Jowett. He stated that he could not understand why the Tribunal continued to disbelieve him given that he had put “all documents and proof” before it. He stressed that his life was in danger in Nepal.

2. I do not see these statements as rising above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

3. The applicant also submitted that he “does not have thinking power.” I understood this to be a reference to the material submitted on his behalf to the Tribunal concerning his claimed emotional and mental condition (see CB 198 to CB 199, CB 203, CB 205 to CB 216, CB 219 to CB 227). This matter is dealt with below in considering ground one, and the application to reopen the case.

4. It is convenient first to address the grounds in the amended application in light of written submissions drafted by Ms Jowett and submissions made on behalf of the first respondent.

Ground 1 – Error of “fact-finding”

1. The first ground in the amended application asserts that the Tribunal made serious errors of fact finding involving medical and other documents relating to the applicant’s mental health.

2. The documents to which the applicant refers appear to be:

   1)Medical certificate signed by Dr Masood Khan, relating to the applicant and stating that the applicant is suffering “from depression” and “will be unfit” for work from 15 May 2008 until 29 May 2008 (CB 203).

   2)A statutory declaration dated 19 May 2008 from a person stating that he has known the applicant for ten years and stating that: “it seems that he has a kind of forgetting habit. I have noticed few times that he has a weak memory power …” (CB 205).

   3)A statutory declaration dated 19 May 2008 from a person who claims to have had social contact with the applicant for an unspecified time, and about whom the declarant says: “I feel like he is an absent-minded person. I had noticed few times about his poor memory …” (CB 207).

   4)A statutory declaration of 19 May 2008 from a person who claims to have known the applicant for “several years” and who declares, amongst other things, relevantly, that he: “has been bit forgetful. He often forgets important dates and events and somebody need to remind him” (CB 209).

   5)A statutory declaration made on 19 May 2008 by a person who does not state how long, or in what capacity, he knows the applicant but states, nonetheless, that the applicant: “is bit depressed” and that the applicant: “seems to be forgetful of number of things …” (CB 212 to CB 213).

   6)A statutory declaration dated 19 May 2008 from a person who declares to have known the applicant for almost fourteen years in a social capacity and who declares: “I have noticed few times that he has a weak memory power ... because of the lot of depression’ (CB 215 to CB 216).

   7)A medical certificate from Dr Masood Khan dated 16 June 2008, certifying that the applicant is: “being treated for Bipolar Mood Disorder” (CB 221).

   8)A statutory declaration of 15 June 2008 from a declarant who claims to have known the applicant “very well” for the last twelve years and who declares that: “One day I came to know through his brother that over the last few years he became a bit forgetful. Later on I also physically witnessed his forgetfulness while he was in my shop …” (CB 222 to CB 223).

   9)A statutory declaration made on 15 June 2008 by a person who declares to have known the applicant for 15 years who states, amongst other things: “Even I noticed that he is forgetting lots of things …” (CB 225 to CB 226).

   [None of the declarants claim to be medical practitioners.]

1. The applicant first applied to the Tribunal for review of the delegate’s decision on 15 March 2005 (CB 40). Since that time (as referred to above), the applicant’s case has been considered by a number of different Tribunal members differently constituting the Tribunal. The applicant attended hearings on four occasions before the Tribunal (as variously constituted), those of 6 March 2008 and 2 April 2008 before the (currently constituted) Tribunal.

2. On 11 April 2008 the Tribunal wrote to the applicant (pursuant to s.424A of the Act), inviting him to comment on certain information, which it set out in some detail in its letter (see CB 187 to CB 192. See also CB 238).

3. The letter focused on contradictions and inconsistencies in the applicant’s claims as put by him at the various hearings, and in written statements.

4. The applicant was given until 28 April 2008 to make his comments in writing. On that date the applicant, through his migration agent, sought an extension of time to respond (CB 194).  This was granted until 27 May 2008 (CB 195). The applicant, again, on 20 May 2008 through his migration agent (this time a different migration agent), sought a further extension (CB 198).

5. In this request the agent relevantly stated, amongst other things:

   “I interviewed the applicant today & went through the information on his case. I also went through his file & assessed his overall circumstances including his mental health.

   The applicant provided me an evidence of depression from a Psychiatrist. The Psychiatrist has stated that he is unable to work until 29 May 2008.

   I note that the applicant has been asked to provide response to your letter dated 11 April by 27 May 2008. However, because of his depression and my pre planned schedule to Bangkok (departing on this Thursday & returning towards the end of the following week), he will not be able to submit the written reply to you.

   Moreover, looking at his circumstances, his claims (that he forget things very quickly & provides different account of an issue), his current depression and the statutory declaration signed by few Australians closely known to him, I have asked him to obtain detailed psychological report …” (CB 198).

6. Enclosed with this letter was a copy of the medical certificate from Dr Khan (CB 203 – item 1 at [19] above) and a number of statutory declarations already referred to above (see [19] above). The statutory declarations are items 2 to 6 (at [19]). They were all made on 19 May 2008 before the same Justice of the Peace (“JP”).

7. The Tribunal agreed to a further extension of time for the applicant to provide comments until 3 July 2008 (CB 217). The applicant’s migration agent responded, by letter dated 20 June 2008, on the applicant’s behalf, relevantly, stating the following (at CB 219 to CB 220):

   “The applicant is going through depression & disorder of some kind. The enclosed evidences and other evidences already sent to you confirms that the applicant forget things and have suffered from mental related problems.

   Please find attached the following documents:

   Statutory declaration …

   Medical Certificate from his treating doctor

   Response the issues

   The applicant confirms that he can not remember the things that happened long time back. He accepts that the information he provided to the Tribunal at different occasions contradicts with each other. He can not tell which information is correct & which is not.

   I attempted to get his clarification on various issues raised by you. However, he mixed up the things all the time.

   The applicant claims that he has mentioned his habit of forgetting things during the Tribunal hearing as well.

   Looking at his ongoing mental problem & depression, he is unable to provide categorical comments on the issues you have raised.

   He has realized that his problem of forgetting things is getting worse day by day. For that reason, he claims that the information that he had provided through his original application & first hearing should be more correct than the information he provided during subsequent hearings.

   I previously asked him to present detailed psychiatric report. I had given him a letter to hand to his psychiatrist. Now he claims that I never gave him such letter.

   For the above reasons I would like to request you to assess his application based on his original application and evidences considering his mental health.

   To further assess his mental health situation, I would like to request you to arrange independent assessment of his mental health, if required. The applicant confirms that he would pay the cost of the assessment …”

8. Attached to this letter, amongst other things, was a medical certificate from Dr Khan (CB 221, item 7 at [19] above) and two further statutory declarations (items 8 and 9 at [19] above). Both were made on 15 June 2008 before the same JP.

9. In its decision record (CB 233 to CB 269) the Tribunal extensively set out the claims and evidence before it. Amongst other things, it noted that it had written to the applicant pursuant to s.424A (paragraph [29] of its decision record at CB 238.3). It noted the requests for extensions of time within which to respond to this letter (paragraphs [30] and [31] at CB 238) and recounted the evidence and submissions made on the applicant’s behalf (paragraphs [30] to [35] at CB 238.8 to CB to 239.5), relating to the difficulties encountered by the applicant and his representative in responding within time due to the applicant’s forgetfulness, and the explanation for the inconsistencies and contradictions in the applicant’s various accounts being due to the applicant’s ongoing mental problems, his depression, and his forgetfulness.

10. Under a series of headings relating to the applicant’s complaints, and consistent with what it had set out in its “section 424A letter”, the Tribunal comprehensively set out the applicant’s claims (CB 239.5 to CB 258.6).

11. In its “Findings and Reasons”, after finding that the applicant was a citizen of Nepal (paragraph [108] at CB 261.8), and after giving a brief synopsis of his fears (paragraph [109] at CB 261.9), the Tribunal set out what (on a plain reading of its decision record) goes to the heart of its decision. That is, it found the applicant not to be a credible witness (paragraph [110] at CB 262.1):

    “Applicant’s credibility

    110. The Tribunal did not find the applicant to be a credible witness for the reasons set out below. In particular there are a number of incorrect statements as well as inconsistent and contradictory statements made by the applicant, both in writing and orally, to the Department and the Tribunal which are of such a magnitude that it indicates that the applicant: was not a supporter of and closely associated with the Maoists; did not collect money for the Maoists or provide security information; the army was not looking for him; and he and his family did not go into hiding.”

12. What follows, in my view, is a comprehensive analysis of the applicant’s claims under the list of headings already identified to the applicant by the Tribunal, setting out the unsatisfactory nature of the applicant’s evidence and statements (paragraphs [111] to [123] at CB 262.3 to CB 265.7)

1. The Tribunal concludes (paragraph [124] at CB 265.8):

   “124. For the above reasons, and as the Tribunal has found that the applicant is not a truthful witness, the Tribunal also finds the Tribunal is not satisfied that: the applicant was a Maoist supporter or closely associated with the Maoists; the applicant collected donations for the Maoists from either 2045 or 2052 or provided security information to the Maoists; the applicant or his family were in hiding in Nepal; and the applicant needed assistance to leave Nepal.”

2. Immediately following this (and relevant to the complaint now) the Tribunal states:

   “125. In reaching the above finding the Tribunal has taken into account the statutory declaration provided by the applicant’s friends as to his forgetfulness. In reaching the above finding the Tribunal has also taken into [account] the medical certificates of Dr Masood Khan, consulting psychiatrist the first of which stated that he was suffering from depression and the other which stated that the applicant is being treated for Bipolar Mood Disorder and is receiving regular medication and attends consultations with him. The Tribunal has also taken into account that the applicant, by being separated from his family, is in a stressful situation. Further, the Tribunal has taken into account the time that has lapsed since the applicant left Nepal and he lodged the application. However, the Tribunal was not provided with any further details about the applicant’s condition by himself or Dr Khan nor did the medical certificates specifically address the issues raised in the Tribunal’s letter of 11 April 2008 or the applicant’s forgetfulness. Further, there is a difference between forgetting everyday events, dates and names and forgetting specific details that are central to the applicant having to leave Nepal even if the Tribunal takes into consideration, in combination, the length of time since the applicant left Nepal, the applicant’s claimed forgetfulness and depression/Bipolar Mood Disorder. In particular the Tribunal would expect the applicant to remember when he started to collect donations or, at least, with better specificity than a difference of 7 years (between 2045 and 2052) and where he collected those donations whether it was in a rural area or where he had operated his business for sometime. The Tribunal would also expect the applicant to remember who provided assistance to him at the airport so he could leave Nepal and whether he had arranged this assistance the day before or it happened by chance on the day. Further, the Tribunal would expect the applicant to remember if the assistance was provided by a relative or not, irrespective of how long it was since he left Nepal.

   126. Further to the above, the Tribunal also based its credibility finding on the implausibility of the applicant’s central claim about the number of business people in one area that he would have spoken to in up to 13 years of collecting donations for the Maoists as it would be unlikely and implausible that his association with the Maoists or his collecting of donations for the Maoists would have not been known to the authorities particularly as Thamel is in Kathmandu.”

3. At paragraph 4.4 of written submissions, Counsel for the applicant submits that the Tribunal failed to have regard to Dr Khan’s report and the statutory declarations.

4. On any plain reading of the material before the Court and the Tribunal’s decision record, this is simply not made out from the material.

5. Importantly, the Tribunal did not reject the medical certificates or declarations as (for example) fabrications, or as being documents created for the purpose of supporting the applicant’s claims without foundation.

6. Rather, a plain reading of its analysis reveals that the Tribunal accepted that the applicant was in a stressful situation and that it took into account both the medical certificates and the evidence of the applicant’s supporters. It is clear that, in the circumstances, it was plainly open the Tribunal to find that the medical certificates lacked: “further details about the applicant’s condition”, and that they did not “specifically address the issues raised in the Tribunal’s letter of 11 April 2008 or the applicant’s forgetfulness.”

7. Further, it was open to the Tribunal to find that there was a difference between “forgetting everyday events”, and forgetting “specific details that are central to the applicant having to leave Nepal.” It specifically made this finding in the context of saying that this would have been the case even if it took into consideration the length of time since he left Nepal, his claimed forgetfulness, his depression, and his bipolar disorder. In my view, these findings were all open to the Tribunal to make on what was before it.

8. The applicant’s complaint that the Tribunal failed to have regard to Dr Khan’s report and the statutory declarations, in light of the Tribunal’s stated reasons, does not rise above a complaint that the Tribunal did not accept these certificates and statements as being a complete answer to the Tribunal’s concerns expressed in its letter about the inconsistencies and contradictions in the applicant’s various claims and accounts of events in Nepal. As such, the applicant seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).

9. In written submissions, the applicant relies on Minister for Immigration & Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82] for the proposition that the Tribunal failed to have regard to the medical reports and statutory declarations, which were relevant material, and which were so fundamental to the applicant’s credibility that it went to the Tribunal’s jurisdiction.

10. It may be that these documents could have been important to the applicant’s credibility. But given that the factual premise in the applicant’s complaint is not made out, what remains is that the Tribunal’s finding as to the applicant’s credibility was made within jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407)

11. In my view, while the authority cited plainly supports the proposition stated by the applicant, its application to the Tribunal’s analysis and treatment of the applicant’s claims and evidence is misconceived.

12. The Tribunal plainly did not ignore this relevant material. It clearly took the material into account. Apart from arguing that the material should have been persuasive enough for the Tribunal to find in the applicant’s favour, the applicant raises no other argument as to how the Tribunal “ignored” this material. In all, therefore, this particular complaint is not made out.

13. The applicant also complains (in parargraphs 4.2 and 4.3 of written submissions) that, while he provided the Tribunal with statutory declarations from the people who knew him, and medical certificates from Dr Khan, which went to the issue of his claimed forgetfulness, the Tribunal stated that it was not provided with further details about the applicant’s condition and that, in these circumstances, the Tribunal should have requested further details. The fact that there is no such request apparent on the material before the Court reveals that the Tribunal made jurisdictional error.

14. The applicant relies on what was said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (“Applicant S20/2002”).

15. At [137] Kirby J stated:

    “It follows that, while the Tribunal made an apparent attempt to exercise the jurisdiction conferred, this was not a real exercise. That view is confirmed by the treatment of the dentists and surgeon’s report adduced by the appellant. Rather than focusing on the main probative value of those reports, the Tribunal fixed upon aspects of that evidence that were irrelevant or trivial - namely, the dentist’s statement about the appellant’s psychological state at the time or the fact that the surgeon’s report to some extent relied upon the appellant’s history. The true probative value of the reports was that they constituted apparently reliable and independent confirmation of the credibility of the appellant and of his claims of serious and extreme injuries consistent with the asserted official mistreatment.”

    [Footnotes omitted.]

16. The applicant also complains that the Tribunal’s “opinion” as to the applicant’s credibility was not properly formed without considering the medical report and statutory declarations and without further details that it should have sought. This meant that the Tribunal’s decision, therefore, was not supported on logical grounds by reference to the material adduced by the applicant.

17. The applicant relies on Applicant S20/2002 per Kirby J at [138] in support of this argument:

    “This, without more, indicates that the satisfaction or opinion of the Tribunal as to the appellant’s status was not properly formed. It was not supported on logical grounds by reference to the material adduced. Given that the Tribunal’s satisfaction provided the foundation for its jurisdiction to make the decision not to grant the protection visa, the illogicality in the fact-finding process was an error that went to jurisdiction. The purported exercise of power miscarried.”

18. Applicant S20/2002 was concerned with, amongst other things, an adverse finding by the Tribunal as to the applicant’s credibility. In that case, it made a finding that “in light of” its finding that the “applicant thoroughly lacks credibility” and that the applicant had “misled the Tribunal”, it could not “be satisfied with the corroborating evidence given by the [appellant’s] witness”, and it therefore gave “no weight to this evidence” (see [38] to [48] and, in particular, [47] per McHugh and Gummow JJ).

19. First, to the extent that the applicant relies on Applicant S20/2002 to argue that the Tribunal’s decision in the current case was not supported on logical grounds by reference to the material adduced by the applicant, and that the Tribunal was illogical in the fact finding that it made relating to the medical and other evidence (and without further details not sought), I note that in Applicant S20/2002, in the circumstances of that case, to the extent that illogicality and unreasonableness may be “relevant to judicial review of an administrative decision”, and that it required “closer definition” (per Gleeson CJ at [20]), the majority of the High Court found that the decision of the Tribunal was not shown to have been: “illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds” (see [13], [14] to [17] per Gleeson CJ, [52] per McHugh and Gummow JJ and [173] to [174] per Callinan J).

20. The current case does not involve circumstances that were the essence of the complaint in Applicant S20/2002. That is, that the Tribunal failed to consider all of the evidence before it, by first disbelieving the evidence of the applicant without taking into account the corroborative evidence, and then considering and rejecting the corroboration because of the rejection of the applicant’s evidence (at [12] per Gleeson CJ).

21. Nor are the circumstances of the current case akin to what was said per McHugh and Gummow JJ in Applicant S20/2002 at [49]:

    “In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”

22. In the current case, on a plain reading (and certainly on a fair reading) of the Tribunal’s decision record (and in particular, with reference to [125] at CB 265.8), the Tribunal, in reaching its view as to the applicant’s credibility, plainly took into account the medical certificates and statutory declarations in support of the applicant’s case.

1. I agree with submissions by Mr Cleary that the Tribunal did not reject the evidence of Dr Khan, or that of the applicant’s friends, because it had previously and separately found the applicant not to be credible. The Tribunal did not, for example, reject the corroborative evidence “in light of” of an early finding as to the applicant’s credibility. Plainly, the Tribunal took into account this evidence in reaching its finding as to the applicant’s credibility.

2. Importantly, the Tribunal did not reject this evidence at all. The Tribunal’s reasoning was that the applicant’s explanation for the inconsistent and contradictory statements in his evidence was his medical condition and his forgetfulness. This was said to be supported by the medical evidence and the statutory declarations of his friends.

3. Further to this particular evidence, in relation to the applicant’s explanation, the Tribunal also said that it took into account that the applicant, being separated from his family was in a stressful situation, and also took into account the time that had elapsed since the applicant left Nepal and lodged his application.

4. But it was still open to the Tribunal to then go on and find, on the material before it, that it had not been provided with further details about the applicant’s condition by himself or Dr Khan, and that the medical certificates did not address the issue of concern raised specifically in the Tribunal’s letter of 11 April 2008, or satisfactorily explain the issue of the applicant’s forgetfulness.

5. A reading of the material before the Court makes it clear, in my view, that this finding was open to the Tribunal to make. This, and the findings which supported it, were not findings which were based on a rejection of Dr Khan’s certificate and the declarations of the applicant’s friends. Rather, they were made in spite of, or more accurately were made including, or notwithstanding, that evidence. Evidence which, on balance, did not persuade the Tribunal that the inconsistencies, contradictions, and omissions in the applicant’s own evidence could be explained by his forgetfulness or his medical condition.

6. Even further, it was also open to the Tribunal to point to the difference between forgetting everyday events, and forgetting: “specific details central to the applicant having to leave Nepal” (paragraph [125] at CB 266.2).

7. It was not unreasonable, or illogical, of the Tribunal (nor can it be said that it ignored the corroborative evidence provided to it) for it to then reason that, notwithstanding the claimed difficulties with his memory, the applicant would be able to remember “with better specificity” matters central to his claim to have suffered, and to fear, persecutory harm if he were to return to Nepal.

8. Simply put, the Tribunal did not reject the applicant’s corroborative evidence. Rather, it was not sufficient in the circumstances to explain, or support, the level of forgetfulness put forward by the applicant in explanation for his inconsistent and contradictory statements. I cannot see error in how the Tribunal approached this part of its task.

9. To the extent that the applicant’s complaint also argues that there was an onus, or an obligation, on the Tribunal to have sought further details from either the applicant or Dr Khan, I cannot see that in the circumstances of this case, and on the basis of the arguments submitted in the written submissions drafted by Ms Jowett, that such a complaint can succeed.

10. Mr Cleary referred the Court to Minister for Immigration and Multicultural and Indigenous Affairs v  SGLB  [2004] HCA 32; (2004) 207 ALR 12 (“SGLB”). His submission was that in that case, a similar type of issue arose as in the current case. In that case, one of the alleged errors on the part of the Tribunal related to its finding adversely on the issue of the applicant’s credibility in circumstances where there was no evidence before it to enable it to assess the effects of the applicant’s claimed post-traumatic stress disorder (“PTSD”), and that the Tribunal, therefore, was under a duty to enquire as to the effects.

11. The Court said at [42] to [43] per Gummow and Hayne JJ:

    “Credibility

    42. The second ground of alleged error amounts to a finding by Selway J that the Tribunal was under a duty to inquire as to the effects of PTSD. This is apparent from his Honour's judgment:

    ‘But, having found that the [respondent] 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 [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence.’ (emphasis added)

    43. 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. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst 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.”

[Footnotes omitted]

1. Nor does s.424 of the Act impose a duty on to the Tribunal to obtain additional information. Clearly, the provisions of that section provide that the Tribunal may seek additional information, but does not have to do so. In this context, the Tribunal is not obliged to undertake its own enquiries (SZIYN v Minister for Immigration and Citizenship [2008] FCA 151 at [16], NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [18] to [21], Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 per Gleeson CJ at [19], per Gummow and Hayne JJ at [33] to [43], per Callinan J at [124]; note Kirby J contra at [74]).

2. Applying the above to the circumstances of this case, I cannot see that ground one, as argued by way of the “first” written submissions drafted on behalf of the applicant, succeeds (see further below).

Ground two

1. In ground two the applicant complains that the Tribunal did not write to him requesting that he provide additional information under s.424A of the Act, and informing him of country information that it had before it that was not available at the time of the hearing, but which, nonetheless, was information that would be part of the reason for affirming the decision under review.

2. To the extent that the ground asserts that the Tribunal did not write to the applicant requesting that he provide “additional information”, and noting that an invitation for “additional information” (under the relevant statutory code, which is the exhaustive statement of the natural justice rule applicable to this case – see s.422B) involves s.424, rather than s.424A, I considered whether this was a complaint including s.424. However, in light of the written submissions filed on behalf of the applicant, I did not understand that this was a complaint about s.424.

3. Rather, I saw this as a complaint as to how the Tribunal relied on country information about recent elections in Nepal which brought a Maoist government to power (paragraph [136] at CB 268.4):

   “The country information indicates that there is still sporadic violence and there is a real chance, although a small chance, that the applicant will be caught up in the sporadic violence. However, on the country information the Tribunal is not satisfied that there is a real chance that the applicant will be killed by army personnel if he returns to Nepal in the reasonably foreseeable future.”

   This reference appears in the paragraph headed: “Alternative basis” (CB 268.3).

4. The applicant’s submissions complain that while the Tribunal wrote to the applicant on 11 April 2008 pursuant to s.424A of the Act, seeking his comments on information that it considered would be the reason or part of the reason for affirming the decision under review, there was no invitation in that letter to comment on country information, subsequently available to the Tribunal, that at the Nepalese election held on 10 April 2008 a Maoist government was elected. It was submitted that while this information was relied upon, as shown in the Tribunal’s decision record signed on 3 September 2008 (CB 233 and CB 269), the applicant had no opportunity to know about, or respond to, this “recent development” in Nepal.

5. To the extent that the applicant’s written submissions seek to rely on “the common rules of natural justice”, I note that this is a case to which s.422B of the Act (operational 4 July 2002 – Migration Legislation Amendment (Procedural Fairness) Act2002) applies, making the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48])

6. The applicant submits that he was not informed of this country information at the “last hearing” held by the Tribunal on 12 April 2008 because it “was not available because the Nepalese elections had not been held.” As I understood the applicant’s submission, a “further section 424A letter” should have been sent because such information “would be the reason or part of the reason for affirming the decision under review”, and that this information should have been put to him in writing pursuant to s.424A prior to the Tribunal reaching its decision.

7. As submitted, the applicant’s complaint that this information should have been the subject of a further letter sent pursuant to s.424A does not succeed. Such information comes within the exception contained in s.424A(3)(a) from the obligation set out in s.424A(1). That is, it is non in personam information (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] to [14], and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]). (This information is set out in the Tribunal’s decision record at [96] at CB 258.7 to [107] at CB 261.7.)

Section 425

1. Notwithstanding this, in my view, the applicant may have been on stronger ground if the complaint had been that the surprise election victory in Nepal and the formation of a Maoist dominated government was an issue determinative of the review. I note that the relevant elections did not take place until well after the delegate made the decision to refuse the protection visa to the applicant (CB 32 to CB 39). The change in the political landscape in Nepal following the election in April 2008, and the consequences for the applicant, should he return to Nepal, plainly was not an issue which the applicant could have assumed to be an issue that the delegate considered dispositive of the review (with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 – “SZBEL” at [35]).

2. The issue, therefore, is whether (if this had been an issue dispositive of the review ultimately before the Tribunal and with reference to SZBEL and procedural fairness pursuant to s.425) the Tribunal’s failure to give the applicant “a sufficient opportunity to give evidence or make submissions about what turned out to be” (SZBEL at [44]) a determinative issue arising in relation to the decision under review, may be seen to be a failure of procedural fairness pursuant to the statutory code. That is, it could be argued that if the Tribunal were to rely on this issue to determine and dispose of the review, and given that the relevant circumstances did not arise until after the hearing, it should have given him the further opportunity to comment on this issue.

3. The Tribunal dealt with this matter in its decision record under the heading  of “Alternative basis” where the Tribunal said ([136] at CB 268):

   136. The Tribunal has not accepted the applicant’s claims that he is a supporter of and associated with the Maoists or that he has collected donations to the Maoists or provided leaders with security or information. However, even if the Tribunal had accepted the applicant’s claims or, that he would be imputed with the political opinions of his relatives who were killed, the political situation in Nepal has changed since the applicant lodged his protection visa application in January 2004. As stated above the Maoists emerged as the surprise winners at the elections held on 10 April 2008, a new CA has been sworn in, with 220 out of the 601 CA seats going to the Maoists and in August 2008, Maoist leader Prachanda was sworn in as Nepal’s Prime Minister. The third Tribunal at the fourth hearing [the Tribunal that made the decision currently under review in this Court] asked the applicant, after he claimed that he would be killed by the army as they still hold a grudge, if his Maoist cadre friends would help him especially if they were voted in and formed a government. The applicant responded stating that peace was not guaranteed and he had stated earlier that there was no guarantee he would not be harmed. The country information indicates that there is still sporadic violence and there is a real chance, although a small chance, that the applicant will be caught up in the sporadic violence. However, on the country information the Tribunal is not satisfied that there is a real chance that the applicant will be killed by army personnel in [sic – if] he returns to Nepal in the reasonably foreseeable future.”

4. The issue for the Court, therefore, is whether the Tribunal’s treatment of this information constitutes jurisdictional error on its part and, if so, given that the relief sought by the applicant is discretionary, whether the Court should withhold such relief.

5. This issue arose at the hearing before the Court and I gave the parties the opportunity to make written submissions. The Court has received further submissions from the respondent. Nothing further on this issue has been received from the applicant, despite opportunity, and the subsequent “intervention” by Mr Karp.

6. The first respondent’s submission is that even if there was some breach of s.425 in the current case (and this was not conceded) then, in any event, this decision is otherwise supportable by a separate and independent basis, in which case, no jurisdictional error is revealed in these circumstances. That is, where the separate basis for the Tribunal’s decision has not been vitiated, itself, by jurisdictional error.

7. The respondent relies on NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086 at [23] for that proposition, and seeks to distinguish what was said about the exercise of the Court’s discretion by such authorities as SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (paragraphs [27] to [29]), on the basis that the issue of the exercise of the Court’s discretion only arises if the Tribunal’s decision is affected by jurisdictional error and cannot be supported by a separate ground. Further, where no useful result would arise from the grant of relief.

8. In particular, the first respondent relies on VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 per Gray J at [55] to [56]:

   “The applicant has established that the Tribunal denied her procedural fairness and failed to comply with its obligations pursuant to s 424A of the Migration Act. Each is a jurisdictional error. Ordinarily, each would lead to an entitlement to the relief which the Court can grant pursuant to s 39B of the Judiciary Act, subject to the exercise of a discretion to refuse such relief.

   Unfortunately for the applicant, the Tribunal’s decision is not affected by those errors, because it is justified by the alternative streams of reasoning, which are not affected by the jurisdictional errors. The applicant has not made out any of the other grounds on which she challenged the conclusions on which the Tribunal based its decision, and on which its decision can stand independently of the aspects of its reasoning flawed by jurisdictional error. No question arises of the exercise of the discretion to refuse relief of the kinds available under s 39B of the Judiciary Act. If it were necessary to exercise the discretion, I should have exercised it against the grant of relief, principally on the ground that the Tribunal’s decision is justified by its reasoning apart from its reliance on the ‘independent information’.

   The application must be dismissed. In accordance with the usual rule that costs follow the event, the applicant should be ordered to pay the Minister's costs of the proceeding.”

[Emphasis added]

1. The Minister submits that this Court is relevantly bound in this regard by the following Federal Court authorities: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J, SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [12] and [17] per Hely J, MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13] per Heery J, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22] per Gray J, MZXGR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1167 at [7] per Black CJ, and SZEVE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 390 at [16] per Edmonds J.

2. In my view, if the Tribunal sought to rely on the independent information relating to national elections in Nepal that delivered a Maoist government, presumably a government that would be sympathetic to the applicant, as the reason, or the issue dispositive of the review, then a failure to put such an issue to the applicant at a hearing is, on the authority of SZBEL, a failure to afford procedural fairness pursuant to s.425.

3. However, when properly read as a whole, the Tribunal’s decision record reveals a clear, separate and independent basis for the Tribunal’s conclusion that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Nepal in the foreseeable future. In the current case the issue that determined the review is, plainly, the Tribunal’s comprehensive rejection of the credibility of the applicant, and the comprehensive rejection of his account of claimed events in Nepal. The “Alternative basis” was clearly added as a postscript. But even if it could not be so described, it is a reason unrelated to, and independent of, the Tribunal’s “other” basis for affirming the decision under review.

4. Applying the authorities on which the Minister relies (authorities that are clearly binding on this Court) no jurisdictional error arises in these circumstances.

5. I should just note, however, that even if it could be said that jurisdictional error arose in these circumstances, then I would not have exercised the discretion to grant relief in the applicant’s favour. Plainly, the Tribunal rejected the applicant’s claims because it did not believe the applicant. This finding, as were the findings that informed that conclusion, were plainly open to the Tribunal on the material before it and for which it gave comprehensive reasons (see also further below). Its use of the heading “Alternative basis” indicates that the Tribunal sought to distinguish what follows (at [136]) from the basis for its decision – namely, the lack of credibility of the applicant’s evidence and his factual account of past events in Nepal.

1. When plainly read, the Tribunal’s explanation of the “Alternative basis” (paragraph [136] at CB 268.3) emphasises that the Tribunal rejected the factual basis of the applicant’s claims, but noted that, in any event, even if it had accepted the applicant’s claims, the applicant nonetheless, could still safely return to Nepal, given the accession to power of the very people whom he said he had supported in the past, and at the risk of harm to himself.

2. When properly read in this light, the Tribunal’s comments are not really an “Alternative basis” for its decision, but a reassuring postscript that the applicant, even if he did not accept the Tribunal’s reasoning and basis for its affirmation of the delegate’s decision, could still safely return to his home country, now ruled by those very people whom he said that he had assisted in the past at great risk to himself.

3. In all, therefore, the applicant’s grounds put before this Court, with the assistance of Counsel (Ms Jowett), are not made out.

The application to “re-open” the applicant’s case

1. By application made with the assistance of Counsel (Mr L Karp) on 24 April 2009, the applicant sought the opportunity to “re-open argument in this matter, either orally or by written submissions” (see [13] above at items 13 to 21).

2. Mr Karp sought, on behalf of the applicant, to advance an argument in relation to ground one of the amended application which had not been put earlier. That is, that the Tribunal’s decision was vitiated by unreasonableness because the Tribunal failed to make enquiries of Dr Khan (who was said to be the applicant’s treating psychiatrist at the relevant time) as to the effect that the applicant’s depression and bipolar mood disorder may have had on his memory.

3. Although the written submissions and oral submissions were technically directed to the re-opening of the applicant’s case, in reality the submissions were comprehensive in setting out the applicant’s complaints and arguments.

4. The applicant relies on Prasad v Minister of Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 (“Prasad”) and more recent cases such as SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 (“SZIAI”) for the proposition that a failure by the Tribunal to ascertain relevant facts which were readily available is to exercise its power in an improper manner, if this leads to a decision to which no reasonable person could have come (see, in particular, Prasad at 169 to 170).

5. The applicant accepts that there was no statutory duty on the Tribunal to have made any enquiry of Dr Khan (with reference to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 – “SGLB”), but seeks to distinguish the circumstances of this current case, both as to the facts and the legal issues raised.

6. Although the relevant material has been referred to above, it is convenient to again note the following:

   1)The application for a protection visa was made on 21 January 2005.

   2)The application for review was made on 16 March 2005.

   3)The applicant attended on four different occasions before the Tribunal as differently constituted.

   4)He attended before the Tribunal on 6 March 2008 and 21 April 2008.

   5)By letter of 11 April 2008 the Tribunal wrote to the applicant inviting comment on certain information which focussed on contradictions and inconsistencies in his claims and evidence in support.

   6)He ultimately responded, submitting that, in effect, the contradictions in the applicant’s evidence, given over time both in writing and orally, were explained because of his poor memory arising from his depression, and (subsequently submitted on 20 June 2008) his “disorder of some kind” also described by the applicant’s agents as: “ongoing medical problem”.

   7)The agent also submitted, on the applicant’s behalf, the two medical certificates from Dr Khan and the seven statutory declarations from his friends and acquaintances. [See generally [8], [19] to [27] of this Judgment above.]

7. The two handwritten certificates provided by Dr Khan are reproduced at CB 203 and CB 221 respectively. They are, relevantly, in the following terms:

   1)CB 203:

   Dr Masood Khan

   …

   CONSULTANT PSYCHIATRIST …

   …

   14-5-08

   Medical Certificate

   Re: [applicant’s name]

   This is to certify that [applicant’s name] is suffering from Depression.

   He will be unfit to work from 15-5-08 until 29-5-08

   [Signature]

   2)CB 221:

   Dr Masood Khan

   …

   CONSULTANT PSYCHIATRIST …

   …

   16-6-08

   Medical Certificate

   Re [the applicant’s name]

   This is to state that [applicant’s name] is being treated for Bipolar Mood Disorder. He is receiving regular medication and attends Consultations with me.

   [Signature]

   Dr. M. Khan

8. On a plain reading of its decision (see also [30] to [33] of this Judgment above) the Tribunal affirmed the delegate’s decision because it did not find the applicant to be a credible witness. The reasons for this were the: “incorrect statements as well as inconsistent and contradictory statements made by the applicant …” (paragraph [110] at CB 262). It was in “light of” its “findings in relation to the applicant’s credibility” that it found that it was not satisfied that the applicant would suffer persecutory harm for a Convention reason if he were to return to Nepal (paragraph [135] at CB 268).

9. In reaching this conclusion, the Tribunal said that it had taken into account, among many other matters (and with the statutory declarations), Dr Khan’s medical certificates, and that it also took into account the applicant’s separation from his family and his stressful situation resulting from this separation (paragraph [125] at CB 265).

10. It said:

    “In reaching the above finding the Tribunal has taken into account the statutory declaration provided by the applicant’s friends as to his forgetfulness. In reaching the above finding the Tribunal has also taken into [account] the medical certificates of Dr Masood Khan, consulting psychiatrist the first of which stated that he was suffering from depression and the other which stated that the applicant is being treated for Bipolar Mood Disorder and is receiving regular medication and attends consultations with him. The Tribunal has also taken into account that the applicant, by being separated from his family, is in a stressful situation. Further, the Tribunal has taken into account the time that has lapsed since the applicant left Nepal and he lodged the application.”

11. The Tribunal also stated:

    “However, the Tribunal was not provided with any further details about the applicant’s condition by himself or Dr Khan nor did the medical certificates specifically address the issues raised in the Tribunal’s letter of 11 April 2008 or the applicant’s forgetfulness. Further, there is a difference between forgetting everyday events, dates and names and forgetting specific details that are central to the applicant having to leave Nepal even if the Tribunal takes into consideration, in combination, the length of time since the applicant left Nepal, the applicant’s claimed forgetfulness and depression/Bipolar Mood Disorder.”

The applicant’s submissions

1. Mr Karp submits that the Tribunal’s findings at [125] (as set out above) were made in an “evidentiary vacuum”, because there was no indication of the evidentiary basis to support the Tribunal’s conclusion, and there was no indication in the material before the Court that the particular Tribunal member “had any qualifications in medicine, biochemistry, psychiatry or psychology”.

2. Mr Karp submitted that the Tribunal appears to have accepted that the applicant had psychiatric illnesses (being depression and bipolar disorder), and that in these circumstances, and given the confluence of the applicant’s forgetfulness and his psychiatric illnesses, the question arises as to whether those illnesses could have affected the applicant’s memory in such a way as to produce, and to therefore explain, the observed inconsistencies in his evidence.

3. The applicant submits that it would have been “a simple matter” (with reference to authorities) for the Tribunal to have invited Dr Khan to provide information pursuant to s.424(2) of the Act about the effect of the applicant’s psychiatric conditions on his memory. Further, that such an enquiry could have explained the discrepancies in the applicant’s evidence and, therefore, could have satisfied the Tribunal that the applicant was “not being untruthful”.

4. In subsequent submissions of 2 June 2009 Mr Karp clarified any misunderstanding that may have arisen from his earlier submissions. He confirmed that the applicant did not propose to raise a “no evidence” ground of review. The applicant’s position can be summarised as being: given that the Tribunal’s conclusions were “guesswork”, and given that it had expert information specifically relating to the applicant readily available to it, it was unreasonable for it not to have made enquiries of Dr Khan.

5. The applicant accepts that there was no statutory duty on the Tribunal to make this enquiry, and refers to SGLB. But he seeks to distinguish the circumstances in the current case from what was before the Court in SGLB. That is, it is submitted that the current case is distinguishable, both on the facts and on the legal issues raised. In these circumstances, Mr Karp submits, the correct approach to the resolution of the current case is that which is stated in Prasad per Wilcox J (at 169 to 170):

   “… A power is exercised in an improper manner if, upon the material before the decision maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it …”

[Emphasis added.]

1. Mr Karp submits that the principle enunciated above has been stated in a number of cases in the Federal Court (see Luu v Renevier (1989) 91 ALR 39, Tichner v Bropho (1993) 40 FCR 183, at 197 to 198, SZIAI).

2. The applicant submits that the “Prasad test” contains two elements that are relevant to the current case:

   1)It was obvious that there was a readily available source of specific expert evidence, or information, about the applicant and the effects of his psychiatric illnesses on his memory.

   2)That information was centrally relevant to the applicant’s credit, and thus to the Tribunal’s decision.

The Minister’s submissions

1. The Minister’s position is that SGLB is authority for the proposition that the Tribunal is under no statutory obligation to make enquiries (with reference to SGLB at [42] to [43]), that SGLB is High Court authority that postdates Prasad, that the facts in SGLB are similar to the facts in the present case, and that SGLB, therefore, is the relevant authority for this Court to consider in order to determine the obligations of the Tribunal in the circumstances of this case. That, in any event, given that Prasad has no application to the circumstances of the present case, the obligation referred to in Prasad does not arise.

2. Further, that even if Prasad did have some application (which was not conceded), on the facts before the Court, the applicant could not establish that the Tribunal’s decision (with reference to [125]) is “so devoid of any plausible justification that no reasonable person could have taken this course” (with reference to Prasad at 169 to 170).

3. The Minister’s position, therefore, is that it was open to the Tribunal to find that the medical certificates from Dr Khan did not deal with the issues raised by the Tribunal itself in its “section 424A” letter of 11 April 2008. The argument is that neither of the medical certificates made any mention of the applicant’s purported memory problems, and there was nothing apparent to link the conditions set out in those certificates to the applicant’s loss of memory. That is, there was nothing in those certificates to suggest that either of the two psychiatric conditions stated in those certificates affected the applicant’s memory at all.

4. The Minister presses the argument that, even on what was held in Prasad, the circumstances under which the obligation was said to arise in that case were “strictly limited”. It was not enough to suggest that the “sounder course would have been” to have made enquiries. The Minister relies, in this regard, on the conclusions reached by the Tribunal at paragraph [125] (see [99] to [100] of this Judgment) which were properly, not unreasonably, made for the reasons referred to above.

The issue

1. No argument was advanced by the Minister (in response to the argument now raised by Mr Karp), relying on s.422B of the Act. This section operates to make the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]. See particularly, Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83).

2. That is, there was no argument in answer to the case put by Mr Karp, and that the Tribunal’s relevant obligations were limited to those set out in Division 4 of Part 7. That SGLB, therefore, should be preferred to Prasad, because it deals with a situation involving that statutory code. Given this, it is not necessary to consider this matter.

3. The issue is, therefore, whether the circumstances of this case fall closer to the circumstances in SGLB, than those in Prasad, and whether the correct approach, therefore, is to apply the test enunciated in Prasad, rather than what was held in SGLB. This reflects the way that the case was argued before the Court.

Consideration: The Authorities

1. The matter of Prasad was the subject of a judgement of the Federal Court (per Wilcox J) in 1985. While it involved the issue of a decision to refuse an application for a “permanent residence” entry permit (made by a Mr Prasad) under the then version of the Migration Act, the matter was brought before the Court by an allegation of error, or in breach of, the Administrative Decisions (Judicial review) Act 1977 (Cth) (see Prasad at 157). Mr Prasad sought residence in Australia based on what was said to be his marriage to an Australian citizen.

2. Prasad involved a challenge to a decision made by the then Minister for Immigration, based on advice provided from officers of his own Department, including a panel appointed to review recommendations made by those officers, who interviewed Mr and Mrs Prasad (the Immigration Review Panel).

3. The facts of this case are set out in his Honour’s judgement (at 157 to 164). Relevantly, Mr Prasad was a Fijian national in Australia, with temporary authority to remain. He sought “permanent residence” on the basis of his marriage (in 1981) to Mrs Prasad (nee Miss Prasad). The couple were interviewed by a departmental officer (“Mr B”), who found certain inconsistencies and discrepancies in their account of their married and personal life together. The officer, therefore, recommended rejection of the application made by Mr Prasad (see 159).

4. The couple were interviewed again (and again separately) by another departmental officer (“Mr C”), who supported Mr B’s recommendation to refuse the application on the basis that the inconsistencies led to a conclusion that a genuine marriage relationship did not exist between the two parties (see Prasad at 161).

5. Mr Prasad sought legal assistance. With that assistance, he put a number of documents in support of his claim to have a genuine marriage relationship before the Minister’s department. This included a letter written by a community worker with the Marrickville Legal Centre which contained “a denial … that their marriage was other than genuine” (see Prasad at 161 to 162).

6. The matter was then considered by the “Immigration Review Panel” on 7 March 1984, which unanimously recommended that “the departmental decision be maintained” (Prasad at 163).

7. The then Minister for Immigration approved the Panel’s recommendation on 9 April 1984, also accepting the Panel’s finding that the marriage had only been contracted to enable Mr Prasad to remain in Australia (Prasad at 163).

8. After reviewing relevant authorities, his Honour set out relevant principles (see, in particular, [105] above for the extract from Prasad).

9. In applying these principles, his Honour found that the perceived inconsistencies in the accounts given by Mr and Mrs Prasad at an interview before a departmental officer (Mr B) were found, following evidence given by Mr B to the Court, and with regard to other circumstances, “upon analysis” to “amount to very little indeed” (Prasad at 171). Further, his Honour observed that there was ultimately evidence before the Minister from other persons and sources that “would have been available to the Minister had he enquired” (Prasad at 176. For the reference to the letter from the community worker, see Prasad at 175).

10. For current purposes, the important point to be drawn from what was before his Honour is that the Minister, in making the decision to refuse permanent residence to Mr Prasad, relied on what had been found to be inconsistencies in the accounts provided by the couple to the Department, but which upon further investigation would have been found not to have been inconsistencies at all. The “investigation” in that case would have been to have simply put the inconsistencies to the applicant, Mr Prasad, and to have therefore allowed him the opportunity to provide an explanation for those matters considered to be inconsistencies – an explanation which ultimately emerged before the Court, but which could have emerged before the department upon such investigation.  

11. Further, there was a large amount of material, by way of statutory declarations, and “a personal observation” made by a person assisting the applicant from the Marrickville Legal Centre, documents which, “on their face” showed “considerable support from the assertions of Mr Prasad” (Prasad at 175). This material was readily available from within the Minister’s Department, but “the Minister chose not to investigate” (Prasad at 175). It was unreasonable in the circumstances not to have done so.

12. SGLB was a matter ultimately considered by the High Court in 2004. Unlike Prasad, this matter involved a decision of the Refugee Review Tribunal dealt with in a statutory context arising from the Migration Act. That matter involved an applicant who was detained in the Woomera Immigration Detention Centre.

13. The issue, relevantly for current purposes, is whether in considering a review of the decision to refuse the applicant a protection visa, there was an obligation on the Tribunal to obtain a further psychiatric report in circumstances where it found the applicant to be suffering from post-traumatic stress disorder (based on a report from a psychiatrist). See SGLB at [42] per Gummow and Hayne JJ:

    “42. The second ground of alleged error amounts to a finding by Selway J that the Tribunal was under a duty to inquire as to the effects of PTSD. This is apparent from his Honour's judgment[14]:

    "But, having found that the [respondent] 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 [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence." (emphasis added)

    43. 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. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst 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.”

1. The circumstances of the current case are distinguishable on, at least, the basis that the “obvious” nature of the enquiry as to the relationship between memory loss and depression and bipolar mood disorder should have been more “obvious” to those who were seeking to make this argument – the applicant’s advisers.

2. I do not see that the circumstances of this case fall into the limited category of compelling the relevant decision maker to have made an obvious enquiry. Again, it must be emphasised that the difference in Prasad (that is, the investigation that the Minister was found to be compelled to conduct in that case) was, in a sense, to have “opened his eyes” and to have looked at the very material before him. As I understand Prasad, it was the failure of the Minister to do so that led to the finding against him.

3. Further, it must be noted that Dr Khan was not some third party nominated or consulted by the Tribunal, or, indeed (see further below) consulted at the insistence of the Tribunal. If there was an obvious link between Dr Khan being able to provide further information between depression and bipolar mood disorder, then it was plainly open to the applicant to have sought that further information and to have provided it to the Tribunal.

4. In a real sense, this is, in my view, an example of there being no obligation on the Tribunal to make out an applicant’s case for him. Having consulted a psychiatrist, and having obtained information from that psychiatrist to put before the Tribunal, far from there being any obligation on the Tribunal, in my view, the obligation lay squarely with the applicant (remembering that he was represented throughout the process of the review) to have established the link, which Mr Karp now asks this Court to find should have been done by the Tribunal.

5. If there was a “readily available source” (one of the elements of Prasad that Mr Karp submits now) and that the information was centrally relevant to the applicant’s credit (the second element of the Prasad test that Mr Karp says is present in the current case), what is clearly missing from Mr Karp’s submission is, in my view, and with respect, that the “obvious” nature of the source of enquiry in Prasad cannot be said to be “obvious” to the Tribunal here. In Prasad, the applicant did not know of the perceived inconsistencies of his account, nor did the applicant know that the Minister would ultimately ignore, or not investigate, the materials submitted on his behalf. None of this exists in the current case. The Tribunal plainly did investigate the inconsistencies and contradictions in the applicant’s claims, and the applicant himself responded to that investigation with declarations as to his weak memory, and the presentation of medical certificates as to his depression and bipolar disorder. In my view, if there was a link to be made between the two, it was for the applicant to make it.

6. Further, in the circumstances, I agree with Mr Cleary that it was open to the Tribunal to find that the medical certificates did not deal with the issues raised by the Tribunal in its letter of 11 April 2008. Plainly, the medical certificates do not make any mention of the applicant’s purported memory problems. If there was a link between depression and bipolar mood disorder, and the applicant’s claimed memory problems, then it was plainly open to the applicant through his consulting psychiatrist to have put that link before the Tribunal. In the absence of any such link in what was put before the Tribunal by the applicant himself, through his adviser, and in response to the Tribunal’s letter seeking comment on the inconsistencies and contradictions in his evidence, I cannot see that the “strictly limited” obligation referred to in Prasad is engaged. As Mr Cleary submits, it is not enough to suggest that the “sounder course would have been to make enquiries” (Prasad at 170).

7. Further, it is important to note exactly what the Tribunal did at [125] of its decision record, and also in light of what was said by the High Court in SGLB.

8. In SGLB the majority of the High Court found that there was no obligation on the Tribunal in that case to make further enquiries of a psychologist at the immigration detention centre at which the applicant had been held, and who had previously provided a report to the Tribunal, at the initiative of the Tribunal, to ascertain whether the applicant’s mental condition affected his competence to give evidence.

9. In those circumstances, the majority found that there was no duty on the Tribunal to make any further investigation. As was set out at [19] by the Chief Justice:

   “Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the Tribunal, apprehending that the respondent might be disadvantaged by ‘memory or other difficulties’, of its own motion, and with the respondent’s agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The Tribunal was not then obliged to embark upon an open-ended investigation of the respondent’s psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage. It was not suggested in the letter of 30 July that anything the respondent said at the hearing of 26 June, or in his later affidavit, was unreliable. Two things were suggested. The first was that, if the respondent was suffering from PTSD, that would explain the inconsistencies in his earlier information. The Tribunal was willing to accept that, and not hold those inconsistencies against him. The second, which was rejected, and is not now pursued, is that a further assessment might have provided evidence that he had in fact been seriously harmed before he came to Australia.”

[Emphasis added.]

1. I agree with Mr Cleary that the application of the principle to be applied to the current case enunciated by the High Court in SGLB is even more “certain”, given the nature of the central factual difference between the current case and that in SGLB.

2. In the current case the Tribunal properly brought to the applicant’s attention inconsistencies and contradictions in his evidence, and accounts of his claims given over the long period of the review. I agree with Mr Cleary that the principle enunciated in SGLB finds a stronger set of circumstances for its application in the circumstances of the current case. It was not the Tribunal that initiated the medical report in the current case. The applicant himself put forward the two medical certificates from Dr Khan. If the Tribunal was found to have no obligation to further enquire or investigate, in circumstances where it initiates the obtaining of a medical report, then, in my view, no obligation can be held to fall on the Tribunal in this regard where the applicant himself provided the medical evidence, and where it was plainly open to the applicant, his consulting psychiatrist, and his advisers to have provided the additional information which the applicant now says the Tribunal should have an obtained.

3. These circumstances can also be distinguished, for example, from what was before the Court in SZIAI. In that case, the applicant had provided two documents in support of his claim that he had changed his religion. These were certifications provided by two different people who made assertions in support. For the Tribunal the issue as to whether the applicant had changed his religious faith was “clearly raised as a central issue to be resolved” ([12]). The applicant was asked to consent at the hearing to the Tribunal seeking confirmation from the relevant Association that the applicant was an Ahmadi.

4. The circumstances of this request to the applicant were (at [12]):

   “As the Tribunal recorded, ‘if he was telling the truth they would be well-qualified to comment’. If he did not consent, he was further advised that the Tribunal was ‘minded to draw an adverse inference’. It was after the Tribunal hearing had concluded that the now Appellant’s representatives advised the Tribunal that he consented to an inquiry being made.”

5. The Tribunal subsequently, therefore, caused this enquiry to be made of the Ahmadiyya Muslim Association of Australia (at [13]). The Association responded by letter, which included the statement that: “Both the certificates submit by him are fake & forged” (at [13]). The applicant in that case was invited to respond to this letter, and through his representative he advised that he disagreed with the information that he was not an Ahmadi. The Tribunal proceeded to accept this evidence provided by the Association (at [15]).

6. The applicant in that case contended that the Tribunal should have made further enquiries of either the two persons who had provided the certification, or both, or the association itself (at [16]). The Court understood the “dispute” between the parties to centre “upon whether or not it was unreasonable not to make further enquiries” (at [18]). The Court reasoned that the Tribunal was “alert to the prospect that a relevant enquiry could be made” (at [20]), and that “in the absence of inquiries being made” (those of the two certifiers on the one hand and the association on the other) “the two diametrically opposed views remained untested” (at [22]). The Court found (at [22]) that it “was an inquiry centrally relevant to the issues to be resolved and an inquiry which could readily have been made. An inquiry of the Association may have provided a basis upon which its conclusions as to the certificates being ‘fake & forged’ could be accepted or rejected.”

7. Relevant to the current case, the Court also said, as part of its reasoning as to why the Tribunal was obliged to have made further enquiries regarding the certificates, that the information immediately relevant to its assessment as to whether the certificates had been faked or forged (that is, information obtained from the Ahmadiyya Association) “was not information in the possession or control of the” applicant. In these circumstances, the Court said that the Tribunal: “could not reasonably have reached a conclusion either accepting the Certificates provided by the now Appellant or the Association’s letter without further pursuing which documents were to be accepted” (at [24]).

8. The Court, amongst other things, was also persuaded for the applicant in that case in that the Tribunal:

   “… had no hesitation  in suggesting that an inquiry should have been made of the Association and no  hesitation  in suggesting that an adverse inference could be drawn against the Appellant in the event that he did not consent to such a course … But, having embarked upon its preferred course of making an inquiry of the Association, the Tribunal was thereafter committed to making a further inquiry to resolve the diametrically opposed evidence exposed before it. There may be no general obligation to make inquiries to test the authenticity of documents produced to the Tribunal: eg, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553. But where an inquiry initiated by the Tribunal itself places the authenticity of documents otherwise before it in issue, further inquiries should be made to attempt to resolve the conflict that emerges. Having confronted the Appellant with the choice of consenting to an inquiry being made of the Association, or an adverse inference possibly being drawn, it was incumbent upon the Tribunal to at least make a further inquiry of the nature now advanced by the Appellant.”

9. None of the above relevantly applies to the circumstances in the current case.

10. First, the Tribunal did not initiate any enquiry in relation to the applicant’s medical condition. In the current case it was the applicant himself, through his adviser and representative, who first raised the issue, in the first instance, of his forgetfulness, and secondly, through the certificates (limited as they may have been in retrospect) from Dr Khan, attesting to his depression and bipolar mood disorder.

11. If the reasoning of the Court in SZIAI was that the obligation to make a further enquiry rested with the Tribunal (which had initiated the enquiry that led to “two diametrically opposed views”, which could have easily been resolved by further enquiry), then applying that reasoning to the current circumstances, given that the applicant initially raised the issue of his memory loss, and his depression and bipolar mood disorder, then it was, in my view, for the applicant to have provided additional information from Dr Khan, or any other medical practitioner, attesting to any possible link between these medical conditions and his claimed memory loss. Plainly, the applicant and his representatives (and, indeed, his brother and his friends) would have been in a far better position to have obtained any additional information or evidence in this regard than the Tribunal. (Given any issue of confidentiality between doctor and patient.)

12. Ultimately, I see the current circumstances as falling within the proposition that it is for an applicant to make out their case, to the extent that the Tribunal can be satisfied such that a protection visa must be granted.

13. Further, and most importantly, and again in contrast to Prasad and SZIAI, and closer to the circumstances in SGLB, the Tribunal did not reject the applicant’s evidence as to his forgetfulness as supported by the statutory declarations from his friends and acquaintances, nor the evidence from Dr Khan as expressed in the medical certificates.

14. In this regard, the Tribunal said (at [125]):

    “In reaching the above finding the Tribunal has taken into account the statutory declaration provided by the applicant’s friends as to his forgetfulness. In reaching the above finding the Tribunal has also taken into [account] the medical certificates of Dr Masood Khan, consulting psychiatrist the first of which stated that he was suffering from depression and the other which stated that the applicant is being treated for Bipolar Mood Disorder and is receiving regular medication and attends consultations with him.”

    Further, the Tribunal stated (at [125]):

    “The Tribunal has also taken into account that the applicant, by being separated from his family, is in a stressful situation. Further, the Tribunal has taken into account the time that has lapsed since the applicant left Nepal and he lodged the application.”

15. The issue identified by the Tribunal, central to its consideration, was that the applicant had provided inconsistent and contradictory statements, and that after assessment, the Tribunal found the applicant not to be a truthful witness. Plainly, the Tribunal did not reject any of the applicant’s relevant documentary evidence as having been faked or forged, nor did it make any findings that what the friends and acquaintances had said, or what Dr Khan had said, was in some way not credible, and importantly, nor did it otherwise reject any of this material.

16. What the Tribunal did, properly, in my view, and certainly within the proper exercise of its jurisdiction, was to weigh the evidence that the applicant had put before it purportedly in answer to the Tribunal’s concern, which it squarely raised with the applicant by way of its letter, as to the apparent inconsistencies and contradictions in his evidence. On the material before the Court, it was plainly open to the Tribunal to find that the applicant had not provided any “further details” about his condition, either through his own evidence, or by way of Dr Khan. In addition, it was open to the Tribunal to find that the medical certificates did not “specifically address the issues raised in the Tribunal’s letter of 11 April 2008 or the applicant’s forgetfulness” (CB 265.10 to CB 266.1).

17. Mr Karp submits that the Tribunal should have made further enquiry of Dr Khan. But there was no challenge by the Tribunal as to what Dr Khan had said. As, indeed, there was no challenge by the Tribunal as to what the applicant himself said, and what his friends and acquaintances said, about his forgetfulness. This was unlike the circumstances in Prasad, where the Minister’s “challenge” of what Mr Prasad had said, and what Mrs Prasad had said, could easily have been resolved by making enquiries of Mr Prasad.

18. In SZIAI, it was the Tribunal who initiated the relevant enquiry. By contrast, in the current case, it was the applicant who sought to raise the issue of his memory loss, his medical condition, and the possible connection between the two. This possibility may be inferred from the following in the applicant’s representative’s letter of 20 June 2008:

    “Looking at his ongoing mental problem & depression, he is unable to provide categorical comments on the issues you have raised” (at CB 220.2).

19. In my view, this strengthens the case against the applicant. If the adviser sought to establish such a link between his “ongoing problems” and depression and his inability to answer the Tribunal’s questions because of a “weak” memory, then the source of any corroborative evidence was already there in the applicant’s “hands” – that is, Dr Khan.

20. I note, again in this context, that in SGLB, even though the Tribunal in that case initiated the enquiry relating to the applicant’s medical condition, it was held that no obligation on the Tribunal arose to make any further enquiry.

21. In all, therefore, I agree with submissions made by Mr Cleary that the circumstances of the current case are “stronger” than those presented in SGLB, and therefore certainly invite the application of the principle enunciated by the majority of the High Court in that case to these circumstances. Further, the limited obligation referred to in Prasad, an example of which was subsequently applied in the circumstances in SZIAI, does not apply in the current case. Ultimately, it was open to the Tribunal to make the findings that it did on the material put before it.

22. Further, despite what was, at best, “inferred” by the applicant’s representative at the time, there is nothing in the certificates by Dr Khan to make any link between bipolar mood disorder and depression, and the applicant’s forgetfulness, in circumstances where it would have been quite simple for Dr Khan to have made such a link if it was there to be made.

23. Mr Karp submitted (at [7] of submissions of 12 May 2009) that there was no indication in the material before the Court that the relevant Tribunal member had any qualifications in “medicine, psychiatry, or psychology”. This was said with reference to what the Tribunal observed, noted and found in the latter part of paragraph [125] (at CB 266). That is, that there is a difference between forgetting everyday events dates and names, and forgetting specific details that are central to the applicant having to leave Nepal.

24. There is no requirement that I can see that Refugee Review Tribunal members require qualifications in medicine, psychiatry, or psychology. The task that is statutorily set for the Tribunal is to consider claims made by an applicant to be a person to whom Australia owes protection obligations, and to consider and evaluate the relevant evidence that is put before it.

25. Plainly, in the current case, the Tribunal was making an assessment as a lay Tribunal, as to what it believed to be the difference between forgetting everyday events and forgetting specific details central to an applicant’s claims. On what was before it, it was open to the Tribunal to have an expectation that the applicant, notwithstanding the evidence of his forgetfulness, and the evidence of his bipolar mood disorder and depression (none of which remotely suggested a complete state of memory loss or catatonic mental condition on the part of the applicant), that even someone with some memory loss and difficulties should be able to remember claims critical and central to the claim to fear to return to Nepal. Memory difficulties which, it must be remembered, were never attested to by a medical practitioner, but rather lay persons, who were friends and acquaintances of the applicant.

1. Given that the Tribunal’s relevant conclusion at paragraph [125] of its decision was, in my view, properly made, and did not involve any “unreasonable” analysis, nor can it be said to be “unreasonable” in itself, the applicant’s complaint sought to be put now by way of the proposed amended application, and as argued comprehensively in submissions, does not succeed.

Conclusion

1. Given the above, I cannot see that any useful purpose can be served in granting the application made by the applicant on 24 April 2009, that leave be granted for this matter to be reopened before the Court, and for an amended application to be presented to allow further consideration of the issue considered above. That application, therefore, is dismissed.

2. Given the reasons set out above in relation to the application before the Court, I also dismiss the application originally made by the applicant on 3 October 2008, and as amended on 19 March 2009.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  7 August 2009