SZHHF v Minister for Immigration

[2008] FMCA 1208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHHF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1208

MIGRATION – Review of RRT decision – where Tribunal had concerns regarding applicant’s inconsistent statements – where Tribunal made adverse credibility finding – whether Tribunal decision evidences bias – whether Tribunal obliged to accept psychological report – whether Tribunal explored the effect of actual or imputed political opinion of the applicant.

Migration Act 1958, ss.91R, 424A

Applicant A165 of 2003 v Minister for Immigration [2002] FCA 877
Subramaniam v Minister for Immigration [2001] FCA 891
Subramaniam v Minister for Immigration [2002] FCAFC 255
Algama v Minister for Immigration [2001] FCA 476

Applicant: SZHHF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1195 of 2008

Judgment of: Raphael FM

Hearing date: 13 August 2008

Date of Last Submission: 13 August 2008

Delivered at: Sydney

Delivered on: 13 August 2008

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Ms S Sirtes

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1195 of 2008

SZHHF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China. He arrived in Australia on 22 September 2000 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 12 October 2000. On 14 December 2000 a delegate of the Minister declined to grant him a protection visa and he sought review of that decision from the Refugee Review Tribunal on 11 April 2001. The Tribunal determined to affirm the decision under review. Some very considerable time later the applicant applied to this court for review of the decision of the Tribunal and on 29 January 2007 the decision was set aside by consent and the matter remitted. A differently constituted Tribunal then heard the review application and affirmed the delegate's decision on 10 May 2007. That decision was also brought to this court where it was once again, by consent, set aside and remitted. A third Tribunal was constituted and the applicant, who was represented by a migration agent, appeared before it. The Tribunal, on 18 March 2008, wrote a letter to the applicant pursuant to the provisions of s.424A of the Migration Act 1958 (Cth) (the “Act”) and in the same letter dealt with a number of matters raised in the Tribunal hearing that had taken place on 12 February 2008 which had caused the Tribunal concern and invited the applicant to comment upon them. By acting in this way the Tribunal complied with the provisions of s.424AA.

2. The applicant responded through his migration agent to the letter.  On 10 April 2008 the Tribunal determined to affirm the decision not to grant the applicant a protection visa and handed that decision down on 22 April 2008.  On 12 May 2008 the applicant applied to this court seeking review of the third decision. 

3. The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations was his actual or imputed political opinion.  He claimed that at a young age he began to listen to the broadcasts of “The Voice of America” and understood from them that China had a lamentable record in relation to its treatment of its population, its human rights and its attitude to democracy. 

4. From pre-1989 the applicant claimed that he became involved with pro-democracy groups.  The applicant claimed that he remained involved with pro-democracy groups until about 1999 when he left China to go to Lesotho.  At some stage while he was still in China, and probably around 1988 or 1989, he claimed that he had been placed in a psychiatric hospital for three days.  The applicant claimed that the Chinese authorities had obtained information about his association with pro-democracy groups and that was why he accepted an invitation from his uncle, who had a business in Lesotho, to join him there.  He remained in Lesotho for approximately one year before coming to Australia.  He did not return to China between leaving it for Lesotho and arriving in this country.

5. The applicant also claimed that whilst in Australia he provided assistance to anti-communist groups through the distribution of the “Nine Commentaries on the Communist Party” published by the Falun Gong organisation.  He claimed that he was assisted in doing this by a named person and his wife, with finance from his mother-in-law.

6. It is fair to say that in all three Tribunal decisions the applicant's credibility was an issue.  The causes for the concern expressed by the various Tribunal members were, generally, inconsistencies in the statements given by the applicant over the period during which his claims were being investigated. 

7. By the time the applicant came to the third Tribunal hearing, he was indicating a substantial difficulty with his memory, which he blamed upon the three days spent in a psychiatric institution.  One of the inconsistencies referred to the Tribunal was the date upon which this incident occurred:

   The applicant has given significantly inconsistent evidence about when he was detained in a “mental hospital”.  In the PVA he indicates that he had been held in a mental hospital in 1989 for three days.  In the first Tribunal hearing he said that he was held in a mental hospital from 24 May 1986 until 25 August 1986.  Later in that same hearing, he said that he was held in a mental hospital for three days in 1989.  In the second Tribunal hearing he said that he could not recall being held in a mental hospital.  In the statutory declaration dated 30 January 2008, he stated that in the second hearing the member had asked him if he had been detained in the mental hospital and that he had said "no".  However, in a letter to the Tribunal dated 26 April 2007 sent after the second Tribunal hearing, the applicant stated that he had “recently” confirmed the matter with his family "who are still in China".  He stated that after speaking to his family he was able to state that he was kept in a mental hospital for three days following the 1989 pro-democracy movement.  The Tribunal considers that in responding in this way, the applicant demonstrated that he had specifically turned his mind to when he had been detained and confirmed it with his family.  However, in recent statutory declarations dated February 2008, the applicant made yet a further inconsistent claim.  He claimed he was held at the mental institution for three days in July 1999. [CB 221]

8. After the third Tribunal hearing the applicant obtained financial assistance which allowed him to obtain an appointment with a psychologist who later prepared a report which was submitted to the Tribunal dated 22 February 2008.  The report recites the history that the applicant gave to the Tribunal of events that led him to come to Australia and then provides a short opinion, which should be looked at carefully as it is utilised by the applicant as a major ground for arguing that the Tribunal fell into jurisdictional error in the manner in which it came to its decision:

   “In my opinion [applicant] has an adjustment disorder with mixed anxiety and depressed mood due to the stressor of the uncertainty of his future which is dependent on the outcome of his application to the Tribunal.  [Applicant] reported symptoms that are associated with post traumatic stress disorder i.e. no recollection of traumatic event, recurring nightmares, irritability, physiological arousal and intense fear, in this case the traumatic event being forcefully detained at a psychiatric hospital.  However, I do not feel conclusive at this first interview to give him such a diagnosis.  If his memory impairment is of a neuro-cognitive disorder, neuropsychological testing is recommended.”

9. At [CB 213 - 217] the Tribunal sets out the concerns which it had and which might cause it to affirm the decision to refuse the protection visa.  They were explained to the applicant orally at the hearing and then were made the subject of the letter to which I have previously referred.  The Tribunal also sets out, commencing at [CB 217], the respondent's reply.  This reply was of little assistance to the Tribunal because, in general, it makes a claim of the applicant having no memory of particular matters and therefore an inability to comment.  I cannot see any point in rehearsing these detailed comments from the Tribunal and the response from the applicant in these reasons.  They are readily available and not all of them are necessarily relevant for the court to make a decision upon the application. 

10. The Tribunal had several concerns about the applicant’s evidence in finding that the applicant did not have a well-founded fear of persecution.   First, the Tribunal determined that the psychological report was inconclusive.  It did not accept that the applicant chose not to undergo further testing because of the expense as it considered the applicant had access to funds.   Later on in its reasons [CB 222] the Tribunal concluded that the applicant’s failure to provide evidence to support his claim of a bad memory, and the explanations which he advanced for failing to seek medical advice, went to his credibility generally.  The Tribunal had concerns about the applicant’s delay in claiming that he had a memory loss because of mistreatment and torture in a mental hospital, concluding that he had feigned the memory loss, and also determined, as extracted at [7] of these reasons, that the applicant’s “significantly” inconsistent evidence about when he was detained in a mental hospital indicated that he had never been so detained and threw doubt on his credibility generally.  The Tribunal considered that the applicant’s inconsistent evidence about his treatment during his claimed detention would have been included in the protection visa application if it had happened.  This also reflected adversely on the applicant’s credibility.  In relation to the applicant’s claims of financing a printing business and sending the proprietor a copy of the Nine Commentaries, the Tribunal’s finding that the applicant’s lack of knowledge of, or interest in, the Nine Commentaries, the lack of any evidence to support the claim that he sent it back to China, and his inability to provide details to support the written claims indicated that the applicant fabricated these claims about his conduct in Australia to strengthen his refugee claim.  The Tribunal also concluded that the applicant fabricated his claim to have written things down in his note book, in order to explain how he was able to prepare the protection visa application despite being unable to recall details of the events he claimed had occurred. This also threw doubt on the applicant’s credibility.  In addition to these findings, the Tribunal also concluded that the applicant’s inconsistent evidence about the circumstances in which he left China, and about his employment between 1989 and 1998, affected the applicant’s general credibility.  Given the comprehensive adverse credibility finding, the Tribunal did not accept any of the applicant’s claims.

11. The grounds upon which the applicant claimed that the Tribunal had fallen into jurisdictional error commence at paragraph 2 of his grounds, the first paragraph being a short recital of the history of his applications.  Paragraph 2 is in the following form:

    “2.[t]he Tribunal Member repeatedly referred materials contained in my previous Tribunal hearing.  Although I repeatedly explained that I could not remember almost anything with the evidence of a Psychologist's report, the member unilaterally concluded that she could not believe my involvement as claimed. 

    3. In my view, the latest Tribunal has been duly influenced by the original decisions of the previous two Tribunals.  The latest Tribunal has on numerous occasions throughout the hearing questioned and doubted why I did not consult medical advice in relation to my lapse of memory.  Although I explained that I did not have money, it was not accepted by the Tribunal.”

12. I believe that these two grounds are really one and are a complaint that the Tribunal took into account matters that were contained in the previous Tribunal decisions.  I cannot accept that a fair reading of the Tribunal's decision, which bases its conclusion that the applicant is not a person to whom Australia owes protection obligations upon its failure to accept the claims which he made as to his political involvement, was in any way influenced by previous decisions of other Tribunals.  Certainly the Tribunal referred to inconsistencies in the applicant's claims evidenced by those decisions but that is not the same thing as being unduly influenced or, what is more probably the applicant's claim, coming to the decision with a closed mind.  That is a claim of bias which is not easily proved: Applicant A165 of 2003 v Minister for Immigration [2002] FCA 877 at [59].

13. The second matter raised by the applicant is found in paragraph 4.  The applicant claims that the Tribunal was abusing its power "by looking down on vulnerable and disadvantaged people with less monetary affordability":

    “The fact that I did not have money to see psychologist should not be viewed as my escaping to find out the truth of my lapsing of memory.  Upon the advice of the Tribunal, I borrowed money to see a psychologist, yet the Tribunal still chose to accept the report.”

14. The first point to make in relation to this claim is that I can find no evidence that the Tribunal advised the applicant to see a psychologist.  The Tribunal certainly asked the applicant if he had seen one and one can infer from the correspondence with the agent that is contained in the Court Book that the agent may well have recommended that the applicant see a psychologist and provide a report.  The real complaint of the applicant is that the Tribunal did not accept the psychologist's conclusions. 

15. There have been several cases in which psychologists’ reports have not been accepted by Tribunals.  Perhaps the seminal case is Subramaniam v Minister for Immigration [2001] FCA 891 and on appeal [2002] FCAFC 255. That case followed a decision of North J, Algama v Minister for Immigration [2001] FCA 476. The ratio of these cases appears to me to be that a Tribunal is not obliged to accept a psychological report. It is only obliged to consider it and to take it into account and to explain why it does not accept its conclusions. In this case this was done by the Tribunal, which read carefully the conclusion drawn by the psychologist and extracted in these reasons. Whilst those conclusions provide a ground for the applicant's adjustment disorder with mixed anxiety and depressed mood, it steers clear of making a finding of the existence of a post-traumatic stress disorder or its connection with the alleged forced detainment in a psychiatric hospital. The Tribunal concluded:

    “It considers that the applicant has feigned a memory loss because he is unable to remember the details of his written claims and he is concerned that he will give inconsistent evidence.  Alternatively, in view of Ms Ling's report, the Tribunal considers that if the applicant does have difficulty recalling his written claims, it is because of an anxiety about the outcome of his protection application, not for a Convention reason.”

16. I am satisfied that the Tribunal has taken into account, as required, the evidence of the psychologist's report.  It has accepted the only firm diagnosis and has rejected the possible diagnosis which the applicant seeks to make.  That is a decision entirely within the power of a Tribunal. 

17. The final matter raised by the applicant is that the Tribunal failed to explore the actual and imputed political opinion arising out of his assistance and support to Mr Zhang.  This complaint relates to the claim made by the applicant that he financed a friend of his wife’s in China to distribute the copies of the Nine Commentaries.  The Tribunal considered this claim in detail and concluded that it could not accept that it was true.  The claims concerning Mr Zhang are referred to in the letter which the Tribunal wrote to the applicant on 18 March 2008 where it says [CB 180-181]:

    “In your written statement dated 26 March 2007 you made additional claims relating to your conduct in Australia.  You claimed to have been instrumental in financing, (through your mother-in-law) a printing business in China with a proprietor who became involved [in] anti-Government activities.  You claim to have encouraged your wife to become involved in these anti-Government activities.  You claim to have sent the proprietor a copy of the anti-Government publication, the Nine Commentaries of the Communist Party in around April 2006.  You claim this publication was copied and widely disseminated in China by your wife and your friend.  You claim that you and your wife come to the attention of the authorities for your involvement in this activity, and your family members have been detained and questioned.

    However, in the hearing on 29 March 2007 when you were asked about this publication you could not respond other than to say that you had not read much of it.

    ...

    Your lack of knowledge or interest in the publication, your lack of evidence to support the claim that you sent it, and your inability to provide details to support your written claims could leave the Tribunal to conclude you have not been truthful ….”

18. When the Tribunal did come to the conclusion that it had signalled in the letter this could not have come as any surprise to the applicant whose response in regard to the Tribunal's concerns was:

    “I am sorry that I am not able to make any further comment other than what I have said during the hearings because I cannot remember the details.

19. When the Tribunal concluded that it could not be satisfied that the applicant had acted as he had said he had done vis-à-vis the assistance and support for Mr Zhang, there was no further necessity to explore the effect of any actual or imputed political opinion arising out of those actions. 

20. The applicant appeared before me today. He said only that he thought it was unfair of the Tribunal not to accept the evidence of the psychologist. As I have said, my reading of the psychologist's report does not support a contention that the applicant was so badly treated in the psychiatric institution that he was the subject of persecution pursuant to s.91R of the Act, nor does it support the even more important contention that the reason that he was interned within the psychiatric institution was for his political opinions.

21. I am unable to provide the applicant with the review he seeks.  I dismiss his application.  I order that the applicant pay the first respondent’s costs assessed in the sum of $4,000.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  26 August 2008