SZKQV v Minister for Immigration
[2008] FMCA 2
•8 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 2 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and political persecution in Bahrain – whether the Tribunal overlooked an integer of the applicant’s claims considered – whether the Tribunal hearing was unfair because of interpretation problems or gender issues considered. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Appellant P119 of 2002 v Minister for Immigration [2003] FCAFC 230 Htun v Minister for Immigration [2001] FCA 1802; (2001) 194 ALR 244 SBTF v Minister for Immigration [2007] FCA 1816 SCAT v Minister for Immigration [2003] FCAFC 80; (2003) 76 ALD 625 WALN v Minister for Immigration [2006] FCAFC 131 |
| Applicant: | SZKQV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1579 of 2007 |
| Judgment of: | Driver FM |
| Hearing dates: | 11 & 12 December 2007 |
| Date of Last Submission: | 14 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Mr I S Brady Westside Community Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal, handed down on 27 April 2007.
A writ of mandamus shall issue, requiring the Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1579 of 2007
| SZKQV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 27 April 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
I adopt the following statement of background facts from the applicant’s written submissions filed on 26 November 2007 and the Minister’s written submissions filed on 5 December 2007.
The applicant arrived in Australia on 23 August 2006: court book (“CB”) 233 [2], and applied for the visa on 4 October 2006: CB 1-60. The delegate refused the visa on 2 January 2007: CB 61-77, and the applicant applied to the Tribunal for review on 16 January 2007: CB 78-81. The Tribunal held a hearing on 5 March 2007: CB 130-131, and on 13 March 2007 wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the Migration Act): CB 167-170.
The applicant claimed to fear persecution in Bahrain for reason of his Shia Muslim religion and political opinion. He claimed to have been detained and mistreated while at school after participating in a demonstration at his school in support of imprisoned sheikhs, detained and mistreated in 1998 after being charged with an offence concerned with his car, and arrested but escaped in 2005 after participating in a welcome for a sheikh at the airport. He also claimed that he was discriminated against in his education and in finding employment in Bahrain because of his religion. See generally CB 235-246.
More particularly, the applicant claimed that:
a)he had been imprisoned and tortured by the authorities when he was 16 for around 10 days;
b)he was a Shia in a country where Shia’s were discriminated against by the State despite being in the majority;
c)his brother and a friend had previously been taken into custody and subjected to torture, including sexual torture. After this his friend had subsequently committed suicide and his brother has been unable to marry;
d)he was arrested and detained for two to three weeks in 1998 being accused of planning to use a car for a terrorist purpose. At that detention he was tortured and beaten;
e)he had taken part in demonstrations after his release from prison and in particular in May, July and December 2005. At the December demonstration he was arrested and his identity card was confiscated by police;
f)after the December demonstration his home was visited by police officers who asked for him. Police have visited his family home seeking him on several occasions since that time;
g)the State would impute political beliefs to him as a result of his previous imprisonment and subsequent involvement in the December demonstration and arrest;
h)he would be subjected to imprisonment, torture and possibly death if he stayed in Bahrain.
The Tribunal accepted that there was discrimination against Shias in Bahrain, but not that this was of itself sufficiently serious to amount to “serious harm” within s.91R of the Migration Act, and rejected the applicant’s claims that he was unable to find employment or education or that the discrimination he had suffered amounted to “serious harm”: CB 247-248 [61-66].
The Tribunal accepted the applicant’s claims of arrest and torture as a schoolboy, but found that he had no political profile and that country information indicated a decline in the use of torture in Bahrain: CB 248-249 [68-69]. The Tribunal also accepted the applicant’s claim of arrest and detention in 1998, but found that this was not for a Convention reason and would not give rise to a real chance of future persecution: CB 249 [70]. Finally, the Tribunal accepted that the applicant was arrested in 2005, but rejected his claim that the police were looking for him: CB 249-250 [71-72]. The Tribunal accepted on the basis of these findings that the applicant may have a subjective fear of persecution but not that this fear was well founded, noting that he had only a limited political profile and that country information indicated improved circumstances in Bahrain, and that the applicant had departed Bahrain without difficulty and in circumstances that did not indicate particular urgency: CB 250 [73-74]. Accordingly, the Tribunal found the applicant’s fears of future harm not well founded: CB 251 [76-77].
The application
These proceedings began with a show cause application filed on 18 May 2007. The application has been amended several times since then. The applicant ultimately relied upon a further amended application filed by leave on 17 December 2007. There are six grounds in that application, namely:
Ground 1
1The Tribunal erred in applying the law in relation to what amounted to serious harm in accordance with section 91R of the Migration Act. The cumulative affect of the matters set out below amount to serious harm on a proper application of the definition of serious harm.
Particulars
1.1The Tribunal found that Shia Muslims were severely discriminated against.
1.2The Tribunal found that the applicant had previously been detained and tortured for a relatively minor involvement in a demonstration in the 1990’s.
1.3There was evidence of the extent of the psychological harm [Dr McInerny] suffered by the Appellant.
Ground 2
2.The Tribunal erred in applying the law in relation to what amounted to the “real chance” test of whether the appellant would be persecuted in the future when:
Particulars
2.1Tribunal found that the applicant had previously been detained and tortured twice for a relatively minor involvement in demonstration in the 1990’s.
2.2Tribunal accepted that the applicant took part in the December 2005 demonstration.
2.3The tribunal accepted that protesters have been arrested and tortured or ill treated since 2000.
2.5Tribunal found that Shia Muslims were severely discriminated against.
Ground 3
3The Tribunal erred in that it failed to make findings in relation to a significant integer of the appellant’s claim namely the psychological harm suffered by the appellant when he was previously detained and tortured, and that he might suffer were he to be returned to Bahrain and when:
Particulars
3.1There was evidence of Mr McInerney concerning the applicant’s psychological state which was clearly before the Tribunal.
3.2The Tribunal found that the applicant had previously been detained and tortured for a relatively minor involvement in a demonstration in the 1990’s.
3.3The Tribunal found that Shia Muslims were severely discriminated against.
Ground 4, in the alternative to Grounds 1,2 and 3 above:
4That the Second Respondent failed to have regard to a claim that there was a real chance that the appellant would suffer psychological harm serious enough, cumulatively or singly, to convert political and religious discrimination into persecution for the purposes of the Refugee Convention’s definition of a “refugee”; and/or
4aThat the Second Respondent failed to have regard to a claim that there was a real chance that the appellant would suffer psychological harm, cumulatively or singly, amounting to persecution for the purposes of the Refugee Conventions definition of a ‘refugee’.
Ground 5
5That the Second Respondent erred in applying the law in that it failed to afford the applicant procedural fairness by way of not effectively allowing the applicant to attend the hearing as required under Division 4 of the Migration Act 1958, in particular s425 and s427 of the Migration Act 1958 when:
Particulars:
5.1That the Tribunal erred in law in failing to provide "adequate or proper interpreting services".
5.2That the transcript of the hearing before the Tribunal on 5 March 2007 discloses specific instances of the interpretation preventing the Applicant from providing his evidence.
5.3That the transcript of the hearing before the Tribunal on 5 March 2007 discloses specific instances of the interpretation errors which were on matters material to the conclusions the Tribunal made adverse to the Applicant.
5.4That the generality of the interpretation involved numerous errors and summaries of the Applicant’s statements and evidence which, cumulatively, adversely affected the Tribunal’s view of his credit on specific issues and parts of his claim and overall.
Ground 6
That the Tribunal erred in applying the law in that:
A)It did not have regard to the Departmental policy in providing the Applicant a procedurally fair hearing and an opportunity to provide his evidence, and/or
B)It did not provide or constructively did not provide a procedurally fair hearing for the Applicant, when
Particulars:
6.1The Department of Immigration and Citizenship promulgates ‘Gender guidelines’ in relation to taking evidence from Applicant’s where sensitive gender or cultural issues are apparent which may prevent an applicant from giving evidence or making their claims.
6.2It was before the Tribunal that the Applicant feared rape and torture if returned to Bahrain.
6.3The Applicant had claimed to be tortured and gender humiliated by Bahrain authorities.
6.4The Applicant had claimed his brother and a friend had been tortured and gender humiliated.
6.5Evidence was given to the Tribunal by Mr Herz regarding rape and chemical castration and gender humiliation by Bahraini authorities against Shia and political dissentients.
6.6The Tribunal did not provide or consider provision of a suitable hearing for the Applicant to give his evidence relating to gender and culturally sensitive issues.
6.7The Tribunal failed to provide a real opportunity for the Applicant to provide evidence on those matters.
6.8The Tribunal did not raise those matters directly with the Applicant.
I granted leave for that document to be filed as I was concerned that the oral argument heard by me on 11 and 12 December 2007 presented the applicant’s case inconsistently with an amended application that had been filed on 13 July 2007. The applicant’s oral submissions made on 11 and 12 December 2007 were that the applicant only had three arguments:
a)an asserted failure by the Tribunal to take account of an integer of the applicant’s claims;
b)asserted unfairness in the hearing opportunity afforded the applicant because of interpretation problems at the hearing; and
c)asserted unfairness of the hearing opportunity leading to a failure to comply with s.425 of the Migration Act because of the inability of the applicant to raise at the hearing a fear of sexual torture and a failure by the Tribunal to apply gender guidelines applicable to the review.
To the extent that the further amended application raises additional grounds, it is unhelpful and extends beyond the leave granted by me. I have nevertheless considered all of the grounds asserted in the further amended application on the basis that the Minister had the opportunity to deal with those grounds in written submissions after the trial.
The evidence
I have before me the book of relevant documents filed on 18 June 2007. The applicant also relies upon affidavits by:
a)Bredoon Robin made on 13 July 2007 and filed on 16 July 2007;
b)Meryem Ibraham made on 24 August 2007 and filed on 31 August 2007; and
c)Entisar Hassan Al Saady made on 14 December 2007 and filed on 17 December 2007.
To each of the affidavits was annexed a purported transcript of the hearing conducted by the Tribunal. The transcripts annexed to the affidavits of Mr Robin and Ms Ibraham were not entirely consistent and, while Ms Ibraham was qualified to give opinion evidence, the content of her affidavit is not entirely clear. The qualifications of Mr Robin to prepare a transcript appeared questionable. In order to ensure, as far as was practicable, that the Court had before it a reliable transcript of what was said by both the applicant and the interpreter at the hearing, I gave leave for the applicant to file and serve a further affidavit. That was intended to be a further affidavit by Ms Ibraham to clarify her earlier affidavit but turned out to be the affidavit of Mr Al Saady. Mr Al Saady is a qualified level 3 NAATI interpreter and I accept his affidavit as verifying the accuracy of the transcript annexed to his affidavit upon which I rely in this judgment.
Submissions
Both parties took the opportunity to make written submissions before the trial of this matter and to make oral submissions at the trial. Both parties also made further written submissions by leave following the trial. The applicant’s written submissions filed on 26 November 2007 address the same three issues that were the subject of the applicant’s oral submissions at the trial, namely the asserted failure to consider an integer of the applicant’s claim (that of serious harm being psychological harm[1]), a failure to provide a fair and effective hearing opportunity due to failures of interpretation[2] and the asserted failure to apply appropriate gender guidelines at the Tribunal hearing[3]. These three issues were developed at length by Mr Brady, for the applicant, over two days of oral argument, particularly the issue of alleged interpretation failures. It is apparent to me from both the written and oral submissions that grounds 1 and 2 in the further amended application are, in effect, a gloss on ground 3, which reflects the earlier submissions. Ground 4 is expressed to be simply an alternative to the first three grounds. It follows that the first four grounds in the further amended application are presented by the applicant as four aspects of the same single issue, namely a failure to deal with an element or integer of the applicant’s claims.
[1] Htun v Minister for Immigration (2001) 194 ALR 244
[2] Perera v Minister for Immigration [1999] FCA 507
[3] Applicants M16 of 2004 v Minister for Immigration [2005] FCA 1641
The applicant’s further written submissions filed on 17 December 2007 address in more detail the issue of alleged interpretation failures at the Tribunal hearing by reference to the transcript. Those submissions are also responsive to the Minister’s submissions on the issue of whether findings of fact went to the applicant’s credit and further submissions concerning the asserted failure to apply policy guidelines relating to gender issues.
The Minister’s initial written submissions, filed on 5 December 2007, were directed to the amended application filed on 13 July 2007. Those submissions are relevantly as follows:
The Tribunal correctly assessed circumstances in Bahrain as at the date of its decision: MIMA v Thiyagarajah (2000) 199 CLR 343 at [28]. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
…
[The applicant claims] that the Tribunal failed to address a claim that the Applicant would suffer psychological harm sufficiently serious to amount to persecution if returned to Bahrain. The Applicant’s submissions imply that the Tribunal failed to regard such harm as falling within s 91R of the Act, although the Tribunal makes no such statement. The First Respondent accepts that psychological harm can if sufficiently severe fall within s 91R: SCAT v MIMIA (2002) 76 ALD 625 (FCA/FC).
The Applicant had submitted evidence to the Tribunal that he was depressed, which was accepted by the Tribunal: CB 242 [47], 246 [59], 248 [67]. That evidence sought to corroborate his claims of past harm and to explain his failure to mention the 1998 detention earlier, and was accepted by the Tribunal as doing so: CB 249 [70]. To the extent that the Applicant claimed to fear psychological harm, that was as a consequence of suffering further torture: transcript p 63.8. As the Tribunal found there was no real chance of such torture occurring then the Applicant’s claim to fear psychological harm as a result of such torture has been addressed and rejected by being “subsumed in findings of greater generality”: Applicant WAEE v MIMIA (2003) 75 ALD 630 (FCA/FC) at [47]. If instead the Applicant is relying on having a subjective fear of harm, so much was accepted by the Tribunal: CB 250 [73], but a subjective fear cannot suffice for refugee status unless the fears are well founded, which the Tribunal found they were not. The Applicant cannot rely merely upon mental fragility because of a fear of harm in the absence of some persecutory conduct by a third party: WAKZ v MIMA [2005] FCA 1065 (French J) at [40-49]. …
The Applicant’s Submissions on this issue also argue with the Tribunal’s factual assessment of whether the Applicant’s claims are well founded, claiming that the Tribunal did not assess the Applicant’s claims cumulatively. However the Tribunal explicitly states that it has considered the Applicant’s claims cumulatively: CB 251 [77]. The Applicant’s Submissions further claim that the Tribunal applied the wrong test, but the argument does not rise above an appeal for merits review.
[The applicant] complains of the standard of interpretation at the hearing, although the Applicant does not specify what material errors were made, and it does not appear that there were other than minor infelicities in the level of interpretation. However perfection in interpretation is not required: WACO v MIMA (2003) 131 FCR 511 (FC) at [66]. The test is whether the Applicant was thereby effectively prevented from giving evidence or whether errors made by the interpreter were material to adverse findings made by the Tribunal: Appellant P119/2002 v MIMIA [2003] FCAFC 230 at [17-18]. The Applicant’s Submissions do not even attempt to satisfy this test. It is apparent from reading the transcript that the Applicant was not prevented from giving evidence at the hearing, and while the Applicant’s Submissions assert errors in the interpretation of the Applicant’s evidence concerning his past experiences, these experiences were accepted by the Tribunal so it is difficult to see how the second limb of the test is satisfied. Contrary to the Applicant’s Submissions the Tribunal did not reject the application on the basis of the Applicant’s credit, indeed it accepted the Applicant’s central claims. The Applicant’s Submissions have not demonstrated errors of interpretation that meet the test in Appellant P119/2002, so this ground is not made out.
[The remaining ground] presumably relates to the claim developed in the Applicant’s Submissions concerning the Department’s gender guidelines. The claim appears to be that the Applicant was somehow prevented from giving evidence about sexual torture. The Applicant does not appear to have made any claims of suffering sexual torture, unless one includes being hit on the buttocks with a rubber hose by a female (CB 140.8; transcript 25.5), although he records that others in Bahrain have been sexually tortured. The Tribunal was aware that the Applicant claimed to fear sexual torture: CB 237.5, 241 [45]. It accepted the Applicant’s claims of torture so can be taken to have accepted that he was beaten on the buttocks with a hose. However it found there was no real chance of the Applicant being tortured as at the date of its decision. It is therefore difficult to see how the Applicant was prevented from giving evidence or how the Tribunal failed to make findings on evidence as this ground alleges.
In oral submissions, Mr Reilly, for the Minister, submitted that the applicant had not identified what the Tribunal should have done differently in relation to the gender guidelines. He submitted that there was no evidence that the applicant felt inhibited and no evidence of anything further he wanted to put before the Tribunal that he felt unable to say. Mr Reilly conceded that the recent decision of the Federal Court in SBTF v Minister for Immigration [2007] FCA 1816 assists the applicant in relation to the first issue of whether an integer of the applicant’s claims was overlooked, however, Mr Reilly sought to distinguish this case from SBTF and relies upon the earlier decision of WAKZ v Minister for Immigration [2005] FCA 1065. To the extent that those decisions cannot be reconciled, I am invited by the Minister to prefer WAKZ.
The Minister filed additional written submissions by leave on 21 December 2007. These related in particular to the issue of interpretation difficulties. Relevantly, those submissions are as follows:
a)Presumably grounds 1, 2, 3 and 4 of the further amended application are intended to reflect the submissions made orally on the basis of SBTF v Minister for Immigration [2007] FCA 1816 (Lander J). The first respondent repeats the submissions made orally in response on 12 December 2006, relying on WAKZ v Minister for Immigration [2005] FCA 1065 (French J) at [40-49] and Prahastono v Minister for Immigration (1997) 77 FCR 260 (Hill J) at 269-271.
b)Ground 5 concerns the standard of interpretation at the Tribunal hearing. The tests are as set out in Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17-18] and WALN v Minister for Immigration [2006] FCAFC 131 at [29].
c)As to the first test, that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence, the record of the hearing indicates that the applicant’s answers were responsive and understood by the Tribunal member. The case is very far from the mutual incomprehension demonstrated in Perera v Minister for Immigration (1999) 92 FCR 6 (Kenny J), on which the applicant relies. Indeed the Tribunal seems to have regarded the hearing as having been fluent and well conducted: it ends with the member saying “Thank you Mr Interpreter for a job well done”. Reading the transcript as a whole (WALN at [30]) it does not demonstrate that the applicant was effectively prevented from giving evidence.
d)The applicant’s further written submissions engage in a minute and highly speculative analysis of every infelicity identified in the interpretation, with a view to submitting that the first test was not met. Repeatedly it is submitted that identified infelicities led the Tribunal to regard the applicant as reticent in giving evidence and so to doubt the applicant’s credit. However, there is no basis in the Tribunal’s decision for this submission. The applicant’s essential claims as to past harm were accepted by the Tribunal. To the extent that the Tribunal rejected particular matters raised by the applicant, its reasons do not indicate reliance on any negative view of the applicant’s oral evidence for such conclusions, unlike eg Perera at [9]. Read as a whole the hearing record does not indicate that the interpretation was so inadequate that the applicant was effectively prevented from giving evidence, so the first test is not made out.
e)As to the second test, that errors made by the interpreter were material to conclusions adverse to the applicant, the applicant’s further written submimssions identify two errors said to meet this test. However neither error is material on a proper reading of the Tribunal’s reasons. It is clear from Appellant P119/2002 at [19-22] that it is an analysis of the Tribunal’s reasons that determines whether an error is material or not.
f)The first error is the interpreter not interpreting “I reached first year of secondary education from which I was expelled” when the applicant is recounting his education history. However, the Tribunal notes at CB 236.5 the applicant’s claim that as a result of being detained he did not return to school and his academic progress was affected. Whether the applicant was “expelled” or as the Tribunal found at CB 248 [64] chose not to return to school is immaterial. As the Tribunal noted at CB 248 [64] the applicant had attended night classes thereafter, and its conclusion that there was not a real chance of his being denied educational services in future given he was able to “resume” his education after being detained in the 1990s does not turn on whether the applicant chose to leave or was expelled from school. The failure to interpret the applicant’s claim of being expelled is thus not a material error.
g)The second error is the failure to interpret the claim that the applicant’s friend who provided him with bogus documentation to obtain his tourist visa for Australia worked as an accountant for a particular company. The Tribunal’s reasons at CB 250 [74] for rejecting the claim that the applicant was not involved in the preparation of documents for his tourist visa application was based on the fact that the contact address provided was the applicant’s own email address. Whether his friend was an accountant or not is immaterial to this reasoning, so again the failure to interpret the word “accountant” is not a material error.
h)The applicant’s further submissions appear to claim that the interpreter not interpreting the applicant’s words “They will sexually assault me” was a material error. However, as previously submitted, the Tribunal was aware that the applicant claimed to fear sexual torture: CB 237.5, 241-242 [45-46]. It addresses this claim by finding that the applicant’s fears are not well founded: CB 250-251. The Tribunal specifically rejects the applicant’s claim to fear torture: CB 251 [76], which logically includes sexual torture. Accordingly this is not a material error.
i)Ground 6 concerns the alleged relevance of the Department’s gender guidelines. At the hearing on 12 December 2007 the applicant undertook to advise what it was suggested the Tribunal should have done but failed to do. It is now apparently suggested that the Tribunal was bound to ask the applicant about his claimed past experiences of “sexual torture”. As has been previously pointed out, the applicant’s only experience that could be said to possibly fall within this terminology was his being hit on the buttocks with a rubber hose by a female when at school (CB 140.8), which the Tribunal accepts: CB 248 [68]. Why the Tribunal was bound to ask the applicant further questions about this issue when it accepted this claim is not explained by the applicant’s submissions. If the applicant had experienced some other harm that could amount to sexual torture (and as noted on 12 December 2007 he has not provided any evidence to this effect) it was for him to inform the Tribunal about it eg Abebe v Commonwealth (1999) 197 CLR 510 at [187].
On 14 January 2008 the applicant filed further written submissions. Although no leave had been given for those additional submissions I have considered them. Those submissions seek to clarify the grounds in the application as follows:
We apologise to the Court if our Further Amended Application grounds do not reflect the leave granted on 12 December. The Respondent correctly notes that grounds 1, 2, 3 and 4 do plead and particularise the grounds for review aligned to the decision in SBTF and relating to the failure of the Refugee Review Tribunal to consider an integer of the Applicant’s claim. Grounds 1, 2 and 3 are essentially the same as those made in the SBTF case. Ground 4 is a further permutation of the point in line with the submission made at the hearing and pursuant to comments and questions of your honour made during the hearing. It was not our intention to multiply the grounds, but properly pinpoint the grounds for the review.
In other respects those submissions join issue with the Minister in relation to the three issues identified at [9] above.
Reasoning
Was the Tribunal required to consider a claim of psychological harm?
The first four grounds in the further amended application relate to this issue. Critically, the applicant relies on the decision of the Federal Court (Lander J) in SBTF. That was a decision on appeal from this Court and the decision is binding upon me unless it can be distinguished. There has not been an application for special leave to appeal to the High Court from that decision.
The facts in SBTF, including the applicant’s claims, the psychological evidence and the Tribunal decision, are remarkably similar to the present case. In both cases the applicant was a Shia Muslim from Bahrain who had claimed to have been politically active, to have been detained several times and to have been tortured some time ago. In both cases the applicant put forward evidence from a psychologist of his mental state that, so it was claimed, required the Tribunal to consider whether the applicant would suffer a real risk of psychological harm if he were required to return to Bahrain. In SBTF the Tribunal had before it two reports from a psychologist which the Federal Court found either individually, or cumulatively, had the effect of requiring the Tribunal to consider that claim even though it had not been specifically advanced. Lander J said in his judgment at [38]-[47]:
If there is material before the Tribunal which, if accepted by the Tribunal, would raise a case different from that which was articulated by the applicant, the Tribunal is under an obligation to inquire into that other case: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [13]. That is consistent with the inquisitorial procedure under which the Tribunal operates. Like any other administrative decision maker, its responsibility is to make the appropriate and proper decision on the facts as found. It cannot, like a Court in an adversarial proceeding, limit its consideration to the case as articulated by the parties.
In SCAT v Minister for Immigration and Multicultural Affairs [2003] FCA 80; (2003) 76 ALD 625 at 634-5, the Full Court said, when considering whether a claim of potential psychological harm had been put forward:
We do not find it persuasive on the issue of whether there was a claim made to the [T]ribunal concerning psychological harm that there was not a complaint, in terms, directly made to the [T]ribunal by either the appellant or his wife that either of them or any of their children was sustaining any psychological harm.
The question, however, must be whether there was sufficient evidence put before the Tribunal to alert the Tribunal to the fact that the issue was raised. In my opinion, there was. The Tribunal was advised, and did accept, that the appellant had been detained and tortured for a period of 13 months. It also accepted that upon his release he was subject to threats from the police.
The Tribunal specifically acknowledged that those experiences might have given the appellant a subjective fear of persecution. It had evidence from Dr Lee in the form of his report of 26 March 2006 saying that the appellant was unfit to work or study on psychological and emotional grounds. It heard evidence from Dr Lee who described the appellant as a "completely broken man who was unable to communicate anything without shaking." It had Dr Lee’s evidence that the appellant was on medications including anti-depressants and anti-psychotics. It received Dr Lee’s further report in response to the s 424A letter in which Dr Lee said:
[SBTF] is at serious risk, due to his more severe treatment by the police in Bahrain with significant psychological damage, and because of the effects his detention has had on an already more fragile and sensitive personality.
The Tribunal accepted that persons of the appellant’s religion are subject to quite severe forms of discrimination in Bahrain.
I accept the appellant’s counsel’s submission that there was clear evidence that the appellant had suffered psychological harm as a result of his detention, torture and by reason of the discrimination suffered by persons of his faith.
The appellant contended before the Federal Magistrate and before this Court that the Tribunal had, notwithstanding the evidence before it, failed to consider a significant integer of the appellant’s harm, that being serious harm by way of psychological harm. In this Court, the appellant contended that the Federal Magistrate had erred in his finding "that the applicant did not specifically articulate the ground that his past experience made him particularly at risk of suffering serious harm, if returned involuntarily to Bahrain as a result of the cumulative effects of persecution." In my opinion, the appellant’s contention must be accepted. As I have already said, there was evidence before the Tribunal that the appellant had suffered psychological harm as a result of his experiences in Bahrain as a 17 year old and later.
There was clear evidence that he was continuing to suffer that psychological harm which had left him, as late as 2006, unfit to study or work.
In my opinion, the Tribunal was under an obligation to consider whether if the appellant were to return to Bahrain he would, as a result of the discrimination which members of his faith suffer in Bahrain, suffer serious harm in the form of psychological harm.
The Tribunal did not consider that matter and, in my opinion, therefore fell into error.
His Honour went on to find at [48] that psychological harm can be serious harm for the purposes of s.91R of the Migration Act.
In my opinion, the present case is indistinguishable from SBTF. Relevantly, in its decision, the Tribunal found[4]:
[4] CB 247-250
The Tribunal accepts that the applicant is a Shia Muslim. The Tribunal accepts that Shi’a are discriminated against in Bahrain. The Tribunal refers to the International Crisis Group’s “Bahrain’s Sectarian Challenge”, Middle East Report No. 40, 6 May 2005, which at page 7 sets out the anti-Shiite discrimination that is practised in Bahrain. It notes that for Shiites discrimination is a fact of life. It notes that the reality of formal and informal discrimination is hard to contest and it affects a range of issues, including institutionalised discrimination – including the gerrymandering of parliamentary electoral districts to ensure majority Sunni representation despite their minority status; political naturalisation – the government pursues policies to alter the island’s demographic balance to mitigate [Shia] dominance; government employment where Shiites are on the outside looking in (and although this is largely true regardless of rank, it is particularly pronounced at the higher levels which are dominated by the ruling family); and segregation – Shiites mostly live in poor villages on the outskirts of Manama – a large residential area on the island of Riffa has been off-limits since the mid-1990’s – Shias are not only forbidden from living in the area but they are not permitted to own land there. Sitra, where the applicant originates, is described as one of the most desperate and restive Shiite communities.
The Tribunal is of the view that although Shia Muslim, who comprise approximately 70% of the Muslim population, are subject to quite severe forms of discrimination in Bahrain, this discrimination is not of sufficient seriousness to amount to serious harm and is not persecution within the meaning of the Convention. In relation to education, the US Department of State, Bahrain 2006, released 6 March 2007, which was provided by the applicant, indicates that under the Education Act of 2005, education is free and compulsory for all children aged 6 to 15 including non citizens and most students finish secondary school. The same report also states that there were no reports that the government or its agents committed arbitrary or unlawful killings and there were no reports (unlike in 2005) that government officials had used torture and other cruel, inhuman or degrading treatment or punishment. The March 2007 report also states the Constitution prohibits arbitrary arrests and detention and that the government generally observed these prohibitions. The Tribunal finds that current country information indicates there is no real chance the applicant is at risk of random acts of violence, interrogation, imprisonment, torture or assassination in the reasonably foreseeable future merely for being a Shia.
…
The applicant originally claimed that in 1997 he was arrested and detained for 10 days as he had taken part in a peaceful protest for constitutional change that emanated from his school. As set out above, the Tribunal wrote to the applicant about the inconsistent evidence in relation to his claims that as a school boy he participated in a peaceful demonstration that led to his arrest, detention and beatings. The Tribunal has considered the medical information that has been provided in relation to the applicant’s depression and accepts that he currently suffers from that condition.
The country information available to the Tribunal indicates that in the 1990s there was significant widespread unrest amongst the Shia groups, particularly students, which led to a number of demonstrations that were brutally suppressed by the Bahrain regime. A report prepared by the National Committee for martyrs and the Victims of Torture, and the Bahrain Center for Human Rights, March 2005, notes that when the State Security Act in 1974 was enforced from 1974 to 2000, torture was endemic in Bahrain. Torture appeared to have been most prevalent between 1994 and 2000. More than 70 citizens were killed during this period. While noting that the Tribunal is not able to make a finding as to when the applicant was arrested as a school boy, the applicant’s account of arrest and torture at this time is consistent with country information and in consequence of his inability to recall events with accuracy because of his medical condition, the Tribunal is prepared to give the applicant the benefit of the doubt and accepts that he was detained as a school boy and tortured. The Tribunal is further prepared to accept that during this period the applicant received a warning call from the police telling him that if he participated in any further demonstrations he would be arrested and beaten and that on a separate occasion a policeman took his details on the way to a protest that he did not attend because the policeman told him [to] leave. The Tribunal considers that these matters along with the applicant’s attendance at several other demonstrations would at most have given him a very low profile with the Bahraini authorities.
Reports available to the Tribunal indicate that there has been a substantial change in Bahrain regarding the use of torture. The main concern of the March 2005 report referred to above is that those that were involved in torture in the past were granted an amnesty and have not been brought to justice, rather than that the practise of torture continues in Bahrain. The report itself focuses on the fact that torture was prevalent up until 2000. In the context of wide spread round ups of young men which occurred in the 1990s (see International Crisis Group 2005 report, Bahrain’s Sectarian Challenge, Middle East Report No 40, 6 May which notes that thousand[s] were arrested brutally treated in the 1990s and in the Shiite areas, where arrest, harassment and torture were commonplace). The Tribunal finds that the applicant’s detention as a school boy in the 1990s with no criminal charges laid against him would, at most, have given him a very low profile with the Bahraini authorities and would not now or in the reasonably foreseeable future lead to a real chance of persecution.
The applicant has made a new claim at review that he was arrested and charged with arson and detained for two to three weeks in 1998. as set out above, the Tribunal wrote to the applicant about this new claim under s424A of the Act. The Tribunal has taken into account the response from the advisers that included the report by Mr McInerney, psychologist, and is prepared to give the applicant the benefit of the doubt in consequence of ramifications of his depressive illness and accepts that he was detained and beaten as he has claimed in 1998. The Tribunal finds that the second arrest did not emanate from any political activity by the applicant, rather, it stemmed from a patrol car stopping a vehicle for having incorrect plates, something that could happen anywhere in the world. It does not accept that in this instance his arrest, detention and mistreatment was for the essential and significant reason of his actual or imputed political opinion. The Tribunal finds that detention in 1998 with no criminal charges prosecuted would, at most, give rise to a very low profile with the Bahraini authorities and would not now lead to a real chance of persecution in the reasonably foreseeable future.
…
The Tribunal must look at whether the applicant has a well founded fear of persecution in the reasonably foreseeable future for reasons of an imputed political opinion or a political opinion. The Tribunal accepts that the applicant was involved in a protest when he was a school boy and was arrested, detained for two weeks and tortured. The Tribunal accepts that the applicant was arrested, detained and beaten in 1998 over 2-3 weeks while noting that arrest did not emanate from any political activity on his part. The Tribunal accepts that the applicant was handcuffed during the December 2005 airport incident but notes that he managed to escape and have the handcuffs removed after a short period. The Tribunal acknowledges that these experiences may have given the applicant a subjective fear of persecution. The Tribunal finds that the applicant’s involvement in demonstrations had serious consequences on one occasion as a school boy in the 1990s and not again until December 2005. He has not ever joined any political party. The Tribunal has found that the applicant only has a limited political profile in Bahrain at the time of decision. The Tribunal notes the arrest and torture of protesters in Bahrain that has occurred since 2000. It accepts that protesters are still arrested and occasionally ill treated, but not on the scale that they were in the 1990s. Country information provided by the applicant including reports from non government organisations indicates that those persons who have been arrested and ill treated have high political profiles. As the King has granted amnesty to all involved in the December 2005 airport incident and because the Tribunal has found the applicant does not have anything more than a limited political profile in consequence of incidents in the past, the Tribunal is led to the conclusion that there is no real chance that he would come to the attention of the authorities or that he would be persecuted for reasons of an imputed political opinion or a political opinion in the reasonably foreseeable future.
The Tribunal found that the applicant did not have a well-founded fear of harm should he return to Bahrain but the Tribunal’s consideration was limited to a fear of physical harm. It did not consider a claim of psychological harm and no such claim had been specifically articulated. Nevertheless, the Tribunal had before it the report by Mr McInerney as well as an earlier medical assessment by the Modbury Public Hospital[5]. It also had before it country information relating to the use of torture in Bahrain and the applicant’s own evidence of torture inflicted upon others, as well as himself. The Tribunal accepted that there is a continuing high level of discrimination against Shiites in Bahrain which affects them in their everyday lives.
[5] CB 134-5
The report of Mr McInerney is reproduced on pages 177 and 178 of the court book. Relevantly, Mr McInerney states:
The memory of traumatic events has been a controversial and polarizing issue in psychology and psychiatry for many years and despite many years of intensive research, there are really no definitive answers. Sigmund Freud in the late 1880’s put forward his theory of traumatic amnesia and later recanted, claiming that recovered memories were patients’ fantasies (McNally, 2003). In more recent times, a number of theorists have postulated that repression or suppression of traumatic memories occurs. Briere and Conti (1993) have suggested that clinicians frequently encounter patients whose presentation is indicative of a history of previous sexual abuse but have no memory of molestation. Similarly, Bessel van der Kolk a leading research scientist in the field has said that the emotional intensity of trauma often makes it difficult for survivors to piece together a coherent narrative of what happened to them (van der Kolk and Fisler, 1995). He says that such memory can be “organized on an implicit or perceptual level, without an accompanying narrative of what has happened.” (van der Kolk and Fisler, 1995:512). Some theorists suggest that repeated incidents of abuse are less fully remembered than single incidents, which are frequently recalled in vivid detail. Lenore Terr (1991), cited in McNally (2003) proposes that repeat experiences have a predictability about them and victims develop strategies such as denial, psychic numbing, self-hypnosis or psychic amnesia to lessen the emotional impact of the events. Such cognitive styles disengage attention from the traumatic events and as a consequence, memories are incompletely encoded.
In [the applicant’s] case, it is possible that he had forgotten the second arrest incident. My clinical assessment of him indicates that he is severely depressed and anxious. On 29th November 2006, he was found wandering in the streets in a depressed and somewhat confused state. He was admitted to the Modbury Hospital and assessed by the psychiatric liaison team there as depressed. During my sessions with him, I formed an impression that he was somewhat confused and uncertain, hesitant to disclose information. I had the impression that he had much difficulty in disclosing information about his experience of arrest, detention and torture when he was aged about 16 years and that there were things that he had not revealed which were too difficult for him to discuss. His GP consulted me about [the applicant] and told me that she had formed a similar impression about him. My clinical opinion is that it is possible that [the applicant’s] failure to report the second incident of arrest and detention was a result of a failure to remember the detail of it.
The psychological assessment was taken into account by the Tribunal for the purposes of assessing the applicant’s evidence (including his credibility) but, as in SBTF, the Tribunal failed to consider the question of whether the applicant would suffer psychological harm given his past experience, the situation in Bahrain and his present condition. It is true that the medical evidence in this case was not as compelling as in SBTF. Mr McInerney did not assess the applicant as being “at risk” or of having a “fragile personality”. Nevertheless, the applicant himself asserted, in his statutory declaration accompanying the report of Mr McInerney[6], that he had a fragile mental state and that he feared arrest, incarceration and torture should he return to Bahrain. The medical evidence, coupled with the statutory declaration, were sufficient in my view to require the Tribunal to consider whether the applicant would suffer psychological harm in Bahrain. Consistently with the reasoning in SBTF, I find that the Tribunal was bound to do so and that in failing to do so, the Tribunal fell into jurisdictional error.
[6] CB 172-173
It is not for this Court to consider whether the decision in SBTF was wrong by reference to the authorities relied on by the Minister. The Minister has not sought leave to appeal from the decision of the Federal Court in SBTF. Should the Minister wish to pursue that argument, the Minister can exercise his right of appeal from this decision. The present case is indistinguishable from SBTF and that decision determines the outcome in the present proceedings.
Given that outcome, it is not strictly necessary to consider the other issues raised in this application. I have considered them, however, in view of the possibility that, in the event of an appeal, the Federal Court might take a different view on the first issue.
The interpretation problems
I accept the Minister’s submission that there are two questions to answer in relation to this issue. The first is whether the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence. The second question is whether there were errors in translation which were so material as to cause the decision making process to miscarry[7].
[7] WALN v Minister for Immigration [2006] FCAFC 131 at [29]
In relation to the first question, I prefer the submissions of the Minister to those of the applicant. While the applicant has, by reference to the transcript, identified numerous instances where what was said by the interpreter differed from what was said by the applicant (or in some instances the presiding member) I do not accept that the applicant was effectively prevented from giving his evidence. By and large, the applicant and the presiding member understood one another. It is not material that the presiding member said, at the end of the hearing, thank you, Mr Interpreter, for a job well done. Unless the presiding member was fluent in Arabic, she would not be in a position to know whether the interpreter had done a good job or not. If the presiding member was fluent in Arabic, she probably would not have needed an interpreter at all. What is material is that the transcript establishes that, by and large, the interpreter translated the sense of what the presiding member and the applicant were saying to one another. That interpretation was frequently not literal and was regularly not complete. However, a literal translation during a hearing is not necessarily required. Indeed, it may be unhelpful. It is the sense of what is being said that must be translated faithfully.
The problem identified in the applicant’s submissions is essentially that the interpreter chose to paraphrase much of what the applicant said in giving his evidence. There were several points at which elements of what the applicant said were left out but, in general terms, the sense of the applicant’s evidence was interpreted, albeit, in truncated form. The confidence of the presiding member in the quality of the interpretation was probably misplaced but, overall, I find that the interpretation was not so inadequate that the applicant was effectively prevented from giving evidence.
As to the second question, the applicant’s submissions focus upon two elements of the applicant’s claims that were dealt with adversely by the Tribunal. The first of those concerned the applicant’s education and the second of those concerned his employment.
In its reasons, in relation to the education issue, the Tribunal found[8]:
The applicant has also claimed that the experience of being detained in the 1990s caused him not to return to school and that his academic progress has been affected. The Tribunal finds that the applicant chose not to return to school after he was detained in the 1990s and that he resumed his education in 2001 by taking night classes. On the evidence before it, the Tribunal does not accept that the applicant has been discriminated against in obtaining an education and does not accept that he faces a real chance of being denied educational services in the reasonably foreseeable future given that he ahs been able to resume his education.
[8] CB 248
Importantly, the Tribunal found that the applicant “chose” not to return to school after he was detained in the 1990s. The transcript discloses that the applicant gave evidence that he was expelled from school but that evidence was not translated for the presiding member. The applicant, in response to a question from the presiding member about his education, said[9]:
Wait a minute, of primary education I completed: first, second, third, fourth, fifth, sixth, Of Secondary education, the first year. I think that she made a mistake in respect of study in illiteracy elimination school for adults and the other. I that right? I reached first year of secondary education from which I was expelled. After a number of years I continued my secondary education in a school for adults.
[9] transcript, page 9
This was translated as follows:
First, I studied for 7 years. I left the school, and after that, I studied for 2 years at the adult centre to remove illiteracy.
The Tribunal was given the false impression through the error in interpretation that the interruption to the applicant’s secondary education was a matter of free choice. On his evidence it was not. This renders the Tribunal’s finding on that issue unsafe.
In relation to the employment issue, the Tribunal found[10]:
The applicant claims he has been discriminated against in the workplace because he is a Shia Muslim. The Tribunal has considered the applicant’s response to the s424A letter in relation to the conflicting information with respect [to] the applicant’s claimed employment in Bahrain. The Tribunal is not satisfied by the response that the applicant was not employed by SBLI as a CNC Operator prior to his departure from Bahrain. The applicant has failed to provide any objective evidence that persuades the Tribunal to find otherwise. It was open to the applicant to provide bank records that would substantiate his claims that he was not paid by BSLI in 2006 but he has failed to do so. The Tribunal finds that the recent email from the applicant’s friend in relation to the BSLI letter and the bank statement that accompanied the application for a tourist visa fails to explain or substantiate the applicant’s claim that the documents are bogus. The applicant has failed to explain to the Tribunal how his friend obtained access to his bank statements in order to ‘falsify’ them as has been claimed. The Tribunal prefers the evidence in the applicant’s application for a tourist visa and does not accept that the applicant was not employed by BSLI up until shortly before his departure from Bahrain. While accepting that discrimination in employment is suffered by Shia Muslim in Bahrain the Tribunal does not accept the denial of access to government employment constitutes serious harm to the applicant because he has had employment in the private sector.
[10] CB 247-248
Importantly, the Tribunal stated that the applicant had failed to explain to it how his friend obtained access to his bank statements in order to falsify them as he had claimed. The applicant’s apparent explanation was that his friend was an accountant who worked for a particular company and that he got access to the records because he was an accountant. This was not translated. The presiding member asked the applicant to confirm that he was saying that an employment document and bank statement used in support of a visa application were false documents. The applicant said[11]:
Of course. For example, bank statement. In respect of employment paper I have never worked for that company. He worked was an Accountant for company called … . May be he got it through his job as an Accountant. Whether he forged them for me, I do not know, but certainly it is a forged paper.
[11] transcript, page 13
This was translated as:
For sure it is forged one. I did not work for that company. He worked for … through which he prepared that paper for me.
The failure by the interpreter to identify the profession of the applicant’s friend renders the Tribunal finding that no explanation was offered by the applicant as to how his friend got access to his banking records unsafe.
As was found by the Full Federal Court in Appellant P119 of 2002 v Minister for Immigration [2003] FCAFC 230 at [17] the obligation on the Tribunal under s.425 is to provide adequate interpretation services in the conduct of the Tribunal hearing. That obligation is not met where errors are made by the interpreter that were material to the conclusions of the Tribunal adverse to the applicant. In the two respects that I have identified, the errors made by the interpreter were material to adverse conclusions of the Tribunal. For that reason the Tribunal failed to meet its obligation under s.425 of the Migration Act. This also amounts to jurisdictional error.
Was the hearing opportunity unfair because of the inability of the applicant to raise at the hearing a fear of sexual torture and because of a failure by the Tribunal to apply gender guidelines applicable to the review?
On this issue, I prefer the Minister’s submissions to those of the applicant. The applicant’s difficulty is that his argument rests upon the proposition that the opportunity for him to raise issues of sexual torture was unfair. The transcript and the book of relevant document establish to my satisfaction that the Tribunal did give to the applicant a reasonable opportunity to raise that issue. Indeed, he claimed to have been the victim of sexual torture and that claim was considered. The report of Mr McInerney indicates that it is possible that the applicant could have said more on that issue but, because of his psychological condition, he was inhibited from doing so. I do not regard that as a gender issue. Accordingly, I do not see the relevance of the Tribunal’s gender guidelines. There is nothing to indicate, for example, that the applicant would have been any less inhibited if the presiding member had been male. The Tribunal took into account the report of Mr McInerney and gave the applicant the benefit of the doubt in relation to several of his claims. However, the Tribunal can only base its decision on the information it has, not on information that the applicant hypothetically might have revealed if he was less inhibited. The applicant does not assert that the Tribunal came under a duty to inquire in the light of the report of Mr McInerney and, indeed, it may have been unreasonable in the circumstances for the Tribunal to press the applicant for additional information.
The claim of unfairness in the hearing in relation to the sexual torture issue fails.
The applicant is entitled to relief in the form of the constitutional writs of mandamus and certiorari. I will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 February 2008
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