SZGZH v Minister for Immigration

[2008] FMCA 538

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGZH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 538

MIGRATION – Refugee Review Tribunal – leave to file amended application requested on utility grounds.

Migration Act 1958 (Cth) ss.424A; 424A(1); 424A(1)(a)

SZGZH v Minister for Immigraiton and Citizenship [2007] FCA 486
SAAP v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZIJUv Minister for Immigration & Anor [2008] FMCA 51 (30 January 2008)

Applicant: SZGZH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2332 of 2007

Judgment of: Emmett FM

Hearing date: 11 February 2008

Date of last submission: 11 February 2008

Delivered at: Sydney

Delivered on: 11 February 2008

REPRESENTATION

Counsel for the Applicant: Mr J. Spinak

Solicitors for the Respondent: Mr G. Johnson, DLA Phillips Fox

ORDERS

1. The Applicant is refused leave to rely on a further ground of review.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2332 of 2007

SZGZH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is represented by counsel before this Court this morning, Mr Spinak.  Counsel for the applicant seeks leave to rely on a further ground of review in the following terms:

   “that the Tribunal failed to comply with s.424A(1) of the Act in that the Tribunal provided incomplete and partial information regarding information obtained from the applicant's doctor at the first Tribunal hearing”.

2. In support of the application for leave to amend counsel for the applicant referred the Court to the first Tribunal hearing where the Tribunal noted the following in its decision:

   “Asked why he was not feeling well, the applicant stated he had back pain.  The Tribunal questioned how that affected his ability to recall past events, the applicant repeated that he had backpain(sic) which was getting worse, chest pain and a runny nose.  The Tribunal again asked how that affect(sic) his ability to recall paste events, to which he replied that he was not feeling well and so could not recall exact dates.

   The applicant presented the Tribunal with a presecription dated 2 June 2005 from Dr M K Deva and a referral dated 2 June 2005 from Dr M Kumaradeva for a lumbar spine examination indicating that the applicant had a history of back pain.  The addresses on both documents were the same, the signatures of the doctor on each document appear the same thus it seemed to the Tribunal that they were the same doctor but the doctor’s name had been written differently on the two documents.  The Tribunal asked what the medication was that had been prescribed, the applicant replied that he did not know what it was for, he said he had back pain and the doctor asked him to have a chest x-ray. 

   The Tribunal asked the applicant how else he would be affected in giving evidence by the backpain(sic) besides not being able to recall dates, he sated that he was not feeling very well, felt pressure on his chest, and the pain affected him.

   The Tribunal then adjourned the hearing and Dr Deva was contacted.  Dr Deva was informed that the applicant was attending a Tribunal hearing and had indicted that he had pain which affected his ability to recall matters and give evidence.  Dr Deva stated that he was not convinced about the applicant’s pain.  He said he had seen the applicant about 3 months before and prescribed some medication but the applicant had returned that day seeking something stronger.  Dr Deva stated that he was not convinced the pain was genuine and even if he had back pain it would not affect his thinking. 

   The Tribunal resumed the hearing after speaking to Dr Deva and informed the applicant of the content of the conversation with Dr Deva.  Asked if he wanted to tell the Tribunal anything he wanted it to take into account when assessing whether his ability to give evidence was affected, the applicant stated that the doctor had not made a final decision about the pain but said the applicant had to get an xray(sic) before he could say whether the pain was genuine or not.” 

3. Counsel for the first respondent then referred the Court to the decision of Graham J of the Federal Court of Australia on appeal from a decision of the Federal Magistrates Court dismissing the Applicant’s application for judicial review of a decision of the Refugee Review Tribunal dated 29 June 2009 and handed down on 21 July 2005. Graham J found that the Refugee Review Tribunal was bound to give particulars of the information gleaned from Dr Deva to the applicant in writing and invite his comment upon it, in accordance with s.424A(1) of the Migration Act 1958 (Cth) (“the Act”) (SZGZH v Minister for Immigraiton and Citizenship [2007] FCA 486 at [21]).

4. In his reasons for judgment, Graham J stated the following:

   “33 What has not been addressed by his Honour in the above analysis is the relevance of Dr Deva’s opinion concerning the appellant’s ability to think clearly as a result of his alleged pain and Dr Deva’s doubt as to whether the alleged pain was genuine. Such information was specifically about the appellant. It was not given by the appellant to the Tribunal for the purpose of the Application, rather, it was obtained by the Tribunal. It cannot be said that it was obtained purely and simply to enable the Tribunal to determine whether or not it was reasonable to adjourn the hearing before it. On three separate occasions in the Tribunal’s ‘FINDINGS AND REASONS’ the Tribunal made findings that the inconsistencies in the appellant’s account of past events and other matters could not be explained by some physical or mental condition which impaired his ability to give evidence. Such a finding materially affected the Tribunal’s assessment of the appellant and his claims in respect of his alleged fear of persecution and the foundation for it.

   34 Given the view which I have formed in respect of the Tribunal’s failure to give particulars in writing to the appellant of information in accordance with s 424A(1)(a) of the Act, it is unnecessary to consider in greater detail the other issues raised in the Notice of Appeal. Suffice it to say that apart from the s 424A issue I have been unable to discern any relevant jurisdictional error on the part of the Tribunal.”

5. Counsel for the applicant submits that compliance with s.424A requires the full text of the conversation had by the Tribunal with Dr Deva to be set out in any s.424A letter so that the applicant can properly understand what the information was that was part of the reason for affirming the decision under review.

6. In support of that submission, counsel for the applicant referred the Court to SAAP v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 and SZIJUv Minister for Immigration & Anor [2008] FMCA 51 (30 January 2008) where Federal Magistrates Smith stated the following:

   “16. I have in other cases, found in this obligation a need for a Tribunal to reveal the whole contents of information coming to it as a result of its independently conducted inquiries, in circumstances where a partial or vague disclosure to an applicant would not “allow him to appreciate its potential significance in the case and to allow him a real, rather than a token, opportunity to prepare a response” (see SZELA (supra) at [51], also SZJDY (supra) at [26]-[28], Elrifai v Minister for Immigration [2005] FMCA 1484, (2005) 225 ALR 307 at [34] and ff., and Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138).”

7. The Tribunal's letter dated 21 May 2007 stated the following:

   Finally, at the hearing before the Tribunal (differently constituted) on 2 June 2005 you said that you had been mentally upset at the time you had prepared your original application but that you had no medical certificate to prove this.  You were unable to describe the Awami League flag correctly or to identify correctly the four aims or objectives of the Awami League and you said that you were mentally upset on the day of the hearing as well.  You produced documents indicating that you had consulted a Dr M K Deva that morning, that he had referred you for an X-ray of your lumbar spine because you had a history of ‘back pain’ and that he had prescribed Oruvail SR (used to relieve pain and inflammation).  At the hearing you claimed that besides back pain you were suffering from chest pain and a runny nose.  The Member constituting the Tribunal telephoned Dr Deva in a break in the hearing and informed you that Dr Deva had not told her that he was not convinced about whether your pain was genuine or not but that even if it was genuine it would not affect your thinking.  Your yourself said that the doctor had told you he would need to see the X-ray report before making a decision as to whether your pain was genuine or not.  The information obtained from the doctor is relevant to your application because it suggests that, even if your back pain was genuine, it would not have affected your capacity to participate in a hearing before the Tribunal.  The fact that there is no medical evidence corroborating your claims to have been mentally upset either when you prepared your original application or on the day of the hearing, or your claims that besides back pain you were suffering from chest pain and a runny nose on the day of the hearing, likewise casts doubt on your claims that your ability to fill in the original application correctly or to answer questions at the hearing on 2 June 2005 was affected by any medical condition.  Once again this information is also relevant to your overall credibility.” 

8. Counsel for the applicant submitted that the Tribunal referred to a letter sent to the applicant dated 21 May 2007 in purported compliance with s.424A, in which the Tribunal stated the following:

   As the Tribunal further noted in its section 424A letter dated 21 may 2007, at the hearing before the Tribunal (differently constituted) on 2 June 2005 the applicant was unable to describe the Awami League flag correctly or to identify correctly the four aims or objectives of the Awami League.  He said that he was mentally upset and he produced documents indicating that he had consulted a Dr M K Deva that morning, that Dr Deva had referred him for an x-ray of his lumbar spine because he had a history of ‘back pain’ and that Dr Deva had prescribed Oruvail SR (used to relieve pain and inflammation).  The applicant claimed that besides back pain he was suffering from chest pain and a runny nose.  As the Tribunal noted, the Member constituting the Tribunal telephoned Dr Deva in a break in the hearing and informed the applicant that Dr Deva had told her that the doctor was not convinced about whether the applicant’s pain was genuine or not but that even if it was genuine it would not have affected the applicant’s thinking.  The applicant himself said that the doctor had told him that the doctor would need to see the X-ray report before making a decision as to whether his pain was genuine or not.

   As referred to above, in his response the applicant’s representative said that the applicant had been mentally upset during the hearing before the Tribunal on 2 June 2005.  He said that the applicant had been ‘ill with various complications which affected his ability to concentrate with the questions of the Tribunal’.  He produced no further medical evidence and, as the Tribunal stated in its section 424A letter, the information obtained from Dr Deva suggests that, even if the applicant’s back pain was genuine, it would not have affected his capacity to participate in a hearing before the Tribunal.  As the Tribunal stated in its section 424A letter, I consider the fact that there is no medical evidence corroborating the applicant’s claims to have been mentally upset either when the prepared his original application or on the day of the hearing, or his claims that besides back pain he was suffering from chest pain and a runny nose on the day of the hearing, casts doubt on his claims that his ability to fill in the original application correctly or to answer questions at the hearing on 2 June 2005 was affected by any medical condition.  As the Tribunal stated, I consider that this information is also relevant to the applicant’s overall credibility.”

9. Counsel for the applicant submitted that having regard to the information in the Tribunal’s letter dated 21 May 2007, the applicant had complained at the first Tribunal hearing of back pain, chest pain and a runny nose. Counsel for the applicant submitted that it was not clear from the Tribunal's summation of its conversation with Dr Deva what it was that Dr Deva was expressing an opinion on in respect of the alleged pain. Counsel for the applicant submitted that that information was part of the particulars that the applicant was entitled to be given in accordance with the obligations under s.424A(1) of the Act.

10. The first respondent objected to the amendment on the basis that it has no reasonable prospect of success, and therefore leave ought be refused. 

11. Counsel for the first respondent, Mr Johnson, submitted that the s.424A(1) of the Act obliges the Tribunal to give to the applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirmation the decision under review and to ensure that the applicant understands why it is relevant to the review and to advise the applicant to comment upon it.

12. Counsel for the first respondent stated that in the Tribunal's letter dated 21 May 2007 the Tribunal stated that the member constituting the earlier Tribunal had telephoned Dr Deva in a break of the hearing.  The Tribunal informed the applicant that Dr Deva had told the member that he was not convinced about whether pain that the applicant claimed to be suffering at the hearing was genuine or not, but that even if it was genuine it would not affect the applicant's thinking.  The letter went on to inform the applicant that the information obtained from the doctor was relevant to his application because it suggested that even if his back pain was genuine it would not have affected his capacity to participate in a hearing before the Tribunal. 

13. Counsel for the first respondent submits that, in the circumstances, the Tribunal gave to the applicant the information that it considered would be part of the reason for affirming the decision under review, in accordance with s.424A(1); namely, that even, if the applicant's back pain was genuine, it would not have affected his capacity to participate in the hearing before the Tribunal.

14. In the findings and reasons section of its decision the Tribunal referred to the terms of the s.424A letter. In particular, the Tribunal found that even, if the applicant's pain was genuine, it would not have affected his capacity to participate in the hearing before the earlier constituted Tribunal.

15. The terms of that finding are in similar terms to the Tribunal's letter dated 21 May 2007 where it gives to the applicant that particular information; namely, that even if his back pain was genuine, based on the evidence given to the Tribunal by Dr Deva, it would not have affected the applicant’s capacity to participate in the hearing before the Tribunal,. 

16. In the circumstances, I am satisfied that the relevant information or particulars of information that the Tribunal considered would be the reason for affirming the decision under review was given to the applicant in compliance with s.424A(1)(a) of the Act, and that the letter dated 21 May 2007 ensured as far as reasonably practical that the applicant understood why it was relevant to the review and invited the applicant to comment upon it.

17. In the circumstances, the amendment sought by the applicant does not have reasonable prospects of success, and for that reason leave is refused to the applicant to rely on the further further amended ground.

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

Deputy Associate:  E. Maconachie

Date:  2 May 2008