SZGZH v Minister for Immigration - [2009] FMCA 1125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGZH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1125

MIGRATION – Review of RRT decision – applicant a citizen of Bangladesh – whether Tribunal considered evidence of applicant’s medical condition – whether Tribunal obliged to make its own inquiries of applicant’s condition and its effect on his ability to give evidence.

MIMIA v SGLB (2004) 207 ALR 12
NAMJ v Ministerfor Immigration (2003) 76 ALD 56

Applicant:

SZGZH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 301 of 2009

Judgment of:

Raphael FM

Hearing date:

4 November 2009

Date of Last Submission:

4 November 2009

Delivered at:

Sydney

Delivered on:

4 November 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Mr G. Kennett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 301 of 2009

SZGZH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh who arrived in Australia on 4 November 2004 and who applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 14 September 2004. On 31 January 2005 a delegate of the Minister refused to grant a protection visa and the applicant applied for review of that decision from the Refugee Review Tribunal. There was a first hearing before the Tribunal which affirmed the delegate’s decision on 29 June 2005 but that decision was then remitted by the Federal Court on 4 April 2007 on appeal from this Court.
A second Tribunal was constituted and that Tribunal reheard the matter but it failed to invite the applicant to a hearing. It made a decision to affirm the delegate’s decision on 26 June 2007. That Tribunal decision was also remitted on 27 August 2008 when the matter was referred to a reconstituted third Tribunal.
The third Tribunal offered the applicant a hearing on 8 October 2008. The applicant told it he could not attend on that date because his adviser had not informed him early enough about the hearing and he needed time to prepare. He said that he was physically and mentally unfit but he would attend at another hearing after a delay of two weeks. In fact, the rescheduled hearing did not take place until 13 January 2009. The applicant attended and presented an argument. On 15 January 2009, the third Tribunal determined to affirm the decision not to grant the applicant a protection visa and handed the decision down on the same day.
I need to deal only very briefly with the applicant’s grounds for claiming that he was a person to whom Australia owed protection obligations because the factual matrix of his claims do not have any direct relationship to the arguments he puts concerning the Tribunal’s actions and the manner in which it fell into jurisdictional error.
The applicant claimed to be a political activist in the interest of the Awami League. He claimed that he became involved in an incident which took place around 14 August 2001 when he attended a BNP meeting at a college campus. The applicant said that at this political protest there was an altercation between Awami League supporters and those of the BNP which had two results. The first was that the applicant was injured and was required to be taken into hospital and the second was that he became the victim of a false charge dated 21 August 2001, claiming that he was carrying pieces of bricks, pieces of stone, bamboo sticks and the “cover of a hand bomb” and hockey sticks.He claimed to have been arrested. He claimed that he was given bail and that he was then accused of absconding from bail and that if he returned to Bangladesh he would be in serious problems as a result.
During the course of the hearing, the applicant presented the Tribunal with a number of medical reports and doctors’ letters pertaining to a back ailment. These are found at [CB 252 – 262]. With one exception, [CB 254], they are all dated in February, March or April 2008. The documents at [CB 260] and [CB 261] seem to be identical. The Tribunal notes at [72] and [73] [CB 288] that it asked the applicant to explain his illness and then it asked him the relevance of the material.
“He said it had no relevance and went on to say that he was submitting it to show that he was not really well”
At [107] [CB 291], the Tribunal notes:
“The applicant then referred generically to “problems” and to there having been “too many days” he said he had severe back pain and was “mental”.”
The Tribunal expressed surprise that the applicant was now claiming health-affected memory deficiency, whereas earlier he seemed quite definite in his responses, having referred to a “Chinese axe and some choppers…”. The applicant told the Tribunal that he had been trying to tell it throughout the hearing that he was “mental” [107-109] [CB 291].
In its findings and reasons, the Tribunal also made reference to the applicant’s complaints concerning his health. At [136], it notes:
“The applicant cited mental illness as the reason why he was unable to give evidence about the charges that was consistent with what appeared in the “charge sheet”. The Tribunal considered this explanation. However, throughout a long exchange of questions and answers at the 13 January 2009 hearing, the applicant responded not by saying he had difficulty remembering due to mental stress or the like, rather, he gave information such as descriptions of events and names of certain weapons and, at one point, said that the list of weapons in the charges including “all these only”. … He undermined the claim about mental stress causing the omission by saying that his adviser omitted the information after he had provided it to the latter.” [136] CB 294]
And again:
“Whereas on 6 October, the applicant advised the Tribunal that he was physically and mentally unfit to give evidence at a hearing on 8 October 2008, he also advised that he would be able to do so after a delay of two weeks. He did not suggest that the physical and mental conditions he claimed to face at the time was so chronic or ongoing as to prevent him from giving oral evidence at all. He later expressed willingness to attend hearings scheduled by the Tribunal (although, as it happened, two could not proceed) and he attended on 13 January 2009 without suggesting that he would be unable to give cogent, consistent evidence for any reason.
In fact, upon noting their content, the Tribunal asked the applicant of the relevance of the medical reports he tabled at the hearing and he indicated some pain and physical difficulty but did not suggest he would be unable to give evidence. The Tribunal considered the applicant’s recent medical reports relating to his back pain and the applicant’s explanation of them, particularly at the beginning of the hearing before concerns about potential deficiencies in this evidence were put to him. But none of this information suggested he had become mentally affected by the ailment in his back, let alone to a degree that could satisfactorily explain the many problems in his evidence.
The Tribunal finds that the applicant cited a mental incapacity to give reliable evidence during the 13 January 2009 hearing only after being confronted with serious deficiencies in the evidence he was giving. The Tribunal does not, on the evidence before it, accept that the applicant has been prevented from giving consistent and reliable evidence due to mental stress or mental illness stemming from the condition of his back, notwithstanding that the Tribunal accepts that he has indeed been suffering from the back ailment and has been receiving the treatment discussed in the documents he tabled at the hearing.” [138 - 141] [CB 294 - 295]
The applicant filed an amended application with this Court on 3 June 2009. He has three grounds of complaint. The first is:
“The applicant submits that he was physically and mentally unfit to give evidence before the Tribunal because of his back pain and medical condition, and he produced the medical reports, but the Tribunal did not consider it, which constitutes jurisdictional error.”
The applicant provides particulars which are argumentative of the extracts from the Tribunal’s reasons for decision that I have already referred to. It seems to me that these extracts make it clear that the Tribunal did consider the submissions made by the applicant to it concerning his ability to give evidence during the hearing. The Tribunal considered the medical reports that the applicant had provided and came to the conclusion that the applicant’s back problems were not such as to prevent him from giving evidence in the case. The Tribunal noted that the applicant’s concern about his mental condition appeared to increase with the volume of the indication given by the Tribunal that it found him to be a person lacking in credibility.
The second ground provided by the applicant was:
“The applicant claims that he produced medical documents before the Tribunal and he was trying to explain at the time of the hearing about his back pain and inability but the Tribunal told him to stop. As the applicant was not able to give evidence properly because of his medical conditions, and the Tribunal was not considering his information for his inability, then he became very afraid and nervous about the fate of his application for protection. The applicant does not have money to prepare a transcript of the hearing day.”
The applicant also gave this Court some written submissions and in that document he repeats this ground. Of course the Court sympathises with the applicant’s financial position and his inability to obtain the transcript, but it has not been provided with any other evidence that might indicate that the Tribunal acted peremptorily towards him. This could have been provided through the tape, if necessary.
The third ground in the amended grounds of application is:
“The Tribunal made a jurisdictional error that the Tribunal did not apply proper procedure to assess a genuine claim for protection and it did not consider mental inability due to medical condition, and the Tribunal did not check with the doctor, but the Tribunal rely on the applicant and its own view for the medical condition. The Tribunal did not apply fair procedure to get right information from professional doctor. So the decision of the Tribunal was not made according to the Migration Act 1958.”
Counsel for the Minister and myself read this as a complaint that the Tribunal did not obtain independent medical evidence about the applicant’s condition. To my mind the applicant’s complaints about the Tribunal’s actions in this case can be put to rest by consideration of only two authorities. The first is MIMIA v SGLB (2004) 207 ALR 12 where at [45] Gummow and Hayne JJ said:
“The third alleged error presupposes that there is some competency requirement at to the satisfaction of which the Tribunal must be convinced before an applicant can take part or continue to take part in proceedings before the Tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement analogous, for example, to that of fitness to plead. Section 420(2)(a) of the Act expressly provides that the Tribunal is not bound by the rules of evidence.
The phrase “the rules of evidence” is taken to include both the common law rules of evidence and the Evidence Act 1995 (Cth). The only requirements that could be described as competency requirements are that an application for review by the Tribunal can only be made by a non-citizen who is the subject of the primary decision (by the Minister’s delegate) and who is physically present in the migration zone when the application for review is made…”
At [42] in the same case, Gummow and Hayne JJ say:
“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…”
[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 … Secondly, while section 427 of the Act confers powers on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather section 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.”
Finally in SGLB, Callinan J said at [124]:
“Under section 427 of the Act, the Tribunal may require the secretary to arrange and report upon any investigation or medical examination that the Tribunal thinks is necessary with respect to a review. That does not mean that the Tribunal is bound to make particular inquiries or to obtain evidence on medical or other matters … Even if the respondent had made a request that a particular psychologist or psychiatrist give evidence, the Tribunal was not obliged to comply with it. It certainly made no jurisdictional error in not undertaking further inquiries. It had a discretion and not an obligation to pursue such other inquiries, if any, as it saw fit.”
In NAMJ v Ministerfor Immigration (2003) 76 ALD 56, Branson J considered a case where an applicant was claiming that he was unfit to take part in the Tribunal hearing. Her Honour said at [69]:
“It seems to me that by analogy with a claim of procedural unfairness, the applicant must bear the onus of establishing that he was unfit to take part in the Tribunal hearing: re Minister of Immigration and Multicultural Affairs; ex parte Lam (2003) 72 ALD 613, per Gleeson CJ: Rose and Bloxham v Bridges (1997) 79 FCR 378 at 386 per Finn J. Having regard particularly to the assessment of the applicant made by the Tribunal member, I am not satisfied that at the time of the Tribunal hearing, the applicant lacked the capacity to understand the concerns relating to his claim to be entitled to a protection visa that the Tribunal raised with him, including the Tribunal’s concern as to his credibility, nor am I satisfied that he lacked the capacity to understand and respond to the questions put to him by the Tribunal.
Further, I am not satisfied that the applicant lacked the capacity to give an account of his experiences in Bangladesh or the capacity to present arguments in support of his claim to be entitled to a protection visa. For these reasons, I am not satisfied that the applicant’s psychological condition was such as to deprive the hearing, conducted by the Tribunal, of the meaning which the Act intended it to have.”
I have been provided with no evidence by this applicant as to his mental condition at the time of the Tribunal hearing. The evidence of his physical condition is, as I have said, some months prior to the hearing. The Tribunal accepted that the applicant did have the back problems that he had provided evidence of, but the evidence itself does not describe the seriousness of those problems nor the applicant’s ability or inability to attend a hearing and comprehend what is being put to him. It is unlikely that this sort of evidence could be given by an orthopaedic surgeon in any event. To my mind, the appropriate medical opinion should come from a psychiatrist. Be that as it may, there is no evidence from either of the type which could convince me that the Tribunal erred in coming to the conclusion that it did, which was that this applicant was capable of conducting a hearing and that his failures to provide convincing evidence of his claims of persecution were not affected in any way by his physical condition.
In these circumstances, I am unable to assist the applicant by finding that the Tribunal fell into jurisdictional error in the manner in which he suggests. The Tribunal’s decision is otherwise one based clearly upon the credibility of the applicant. This is a matter for the Tribunal “par excellence”. I can find no other ground upon which I could say that the Tribunal fell into jurisdictional error.
The application is dismissed. The applicant is to pay the respondent’s costs which I assess in the sum of $5,865.00.

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

Associate:

Date: 16 November 2009