SZMOI v Minister for Immigration & Anor

[2008] FMCA 1507

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMOI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1507

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as an underground Catholic – applicant not believed – applicant suffering PTSD – psychologist’s report available to the Tribunal – Tribunal considered the report in relation to the applicant’s claims of past persecution but not in relation to the reliability of his evidence – jurisdictional error established.

Migration Act 1958 (Cth), ss.414, 418, 422B, 424A, 424AA, 425

Minister for Immigration v SCAR [2003] FCAFC 126
Minister for  Immigration v SGLB (2004) 207 ALR 12
SZKHD v Minister for Immigration [2008] FCA 112
WAJR v Minister for Immigration [2004] FCA 106

Applicant: SZMOI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1947 of 2008

Judgment of: Driver FM

Hearing date: 4 November 2008

Delivered at: Sydney

Delivered on: 28 November 2008

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents:  Australian Government Solicitor

ORDERS

1. A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal handed down on 1 July 2008.

2. A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1947 of 2008

SZMOI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 1 July 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of religious persecution.  The following statement of background facts is derived from the applicant’s outline of submissions filed on 22 October 2008.

2. The applicant is a citizen of the Peoples Republic of China, born in Fu Qin in Fujian Province. He is now 39 years of age (court book “CB” 1). He arrived in Australia on 10 September 2007 (CB 55) and lodged his application for a Protection Visa on 24 October 2007 (CB 1). He submitted a statement with that application (CB 37-42). That statement had been translated from Mandarin using a computer program and parts are unintelligible. The applicant said, in a later statement (CB 128 [57]) that there were many errors in translation.

3. On 17 December 2007 the applicant submitted another statement, this time prepared with the assistance of the Refugee Advice and Casework Service (RACS) (CB 117-130). In it he claimed that:

   a)He was born into a Christian family who were adherents of the underground Catholic Church – that is the church that was loyal to Rome, and not the Chinese Communist Party.

   b)The community did not have a Church building. Rather, they worshiped at private houses.

   c)He helped farm his family land from the time that he left school at age 18, until he was 31. He also helped the church by transporting the priest on his motorbike, and helped church groups care for the poor and the sick. The priest stayed with his family often. His father and sister were arrested, in 1997 and 2000 respectively for their association with the Church.

   d)In 2000, at the age of 31 the applicant went into business for himself, producing paper and tissue from a factory.

   e)At about this time the congregation in his town wanted to build a church. They decided that land should be purchased in his name and that a building should be erected on the site to be used as a church, although it would look like a factory. Work was nearing completion in mid 2001 and on 30 June of that year a service was held in thanksgiving. This was interrupted by police who arrested the applicant and his father. They were detained for seven days and interrogated, and the applicant was hit on the head if they didn’t like the answers that he gave. A RMB 1000 bribe was paid for their release.

   f)Between 2002 and 2004 the applicant often had nuns or priests staying at his house. This was so in August 2004 when there was to be a Catholic festival at a nearby town. On 13 August that year the applicant saw a group of police approaching the house. He “screamed” for the nuns to leave but they were all arrested. They were detained for 15 days. The applicant was interrogated and assaulted, being accused of being a Taiwanese agent because a Taiwanese nun had been staying with him until very recently. This time a RMB 2000 bribe was paid for their release.

   g)During Easter 2005 a service was held at a private house. Despite security precautions it was discovered and the applicant and others were arrested. This time he was tortured.  He was again released after a bribe was paid and warned not to have anything to do with the Underground Church again.

   h)In 2007 the applicant made plans to go on a business trip to Japan. He obtained a passport, despite being worried that it would be denied to him. Just before he left China a priest asked him to pick up a letter from a contact in Japan. He met the contact in a car park in Tokyo and picked up the letter.

   i)The letter was discovered at Customs when he returned to China. He was questioned at the airport before being transferred to a detention centre where he was further interrogated and severely beaten, to the extent that he was taken to the “Fu Qin First Hospital” for treatment. He escaped from the hospital with the assistance of a member of staff who was also a member of the Underground Church.

   j)He then hid from the authorities at various places in the countryside while arrangements were made by a people smuggler to get him out of the country.

   k)He decided to come to Australia because his son is studying here.

   l)In Sydney he attends the Sydney Western Suburbs Chinese Church at Flemington.

4. Also on the Department’s file was an application to the Asylum Seekers Assistance Scheme for financial assistance. Accompanying that document was a one page psychological assessment from Angela Dosselor, an Intern Clinical Psychologist, stating amongst other things that the applicant reports and displays symptoms associated with Post Traumatic Stress Disorder, and that he reports other symptoms including poor concentration and memory. Ms Dosselor concluded that the applicant is not able to work because of impaired functioning. These documents were omitted from the court book. They have been supplied by the Minister’s solicitors to the applicant’s solicitor who annexed them to his submissions.

5. The Minister’s delegate rejected the application on 14 January 2008 (CB 131-143). Although the delegate was satisfied that the applicant is a genuine Christian, he was not satisfied that the applicant was persecuted because of his beliefs. He reached this conclusion on the basis of reports that there is a high degree of religious tolerance in Fujian Province, that ordinary attendees at house churches do not have a well founded fear of persecution, and the applicant’s claims of arrest and release were said to be vague and lacking in detail (CB 140-1). The delegate also considered the applicant’s claims of arrest and detention to be inconsistent with statements in his form 866 to the effect that he had not been charged or convicted of an offence, or been the subject of investigation into an alleged offence (CB 141.10). The delegate also found the account of escaping from China to be implausible (CB 142).

6. A substantial volume of evidence and submissions were sent to the Tribunal for its review. The Tribunal in turn sent a detailed s.424A letter after the hearing, to which the applicant replied, via his advisors.

The Tribunal decision

1. In its “Findings and Reasons” the Tribunal accepted that the applicant and his family are Christian, that he was baptised in 1988, and that he has, “involvement with the Catholic Church in Australia” (CB 352; decision 39/57). It accepted that he was a practising Christian in Fujian, but concluded that he had fabricated his claims of harm in China (CB 325.1; decision 40/57).

2. Immediately under the heading, “harm suffered in China”, the Tribunal wrote:

   A letter dated 14 November 2007 from STARTTS provided a psychological assessment of the applicant and concluded that the applicant reported and displayed symptoms consistent with Post Traumatic Stress Disorder. The report concluded the applicant was not capable of undertaking paid employment. This letter some 7 months ago was sent to the Australia Red Cross, concerning the applicant’s ability to undertake paid employment, and is not determinative of the Tribunal’s consideration of the applicant’s claims. (CB 325; decision p. 40/57)

3. Over the next few pages (CB 325-9; decision 40-44/57) the Tribunal rejected each of the four claims of detention and persecution at the hands of the Chinese Police and other officials, because of alleged inconsistencies in the applicant’s evidence and, in the case of the incident following his return from Japan, because of suggested implausibilities with his account.

4. It also rejected his claims as to how he obtained a passport, questioned his stated  subjective fear of persecution, rejected his claims as to how he departed China, and concluded that the financial information given to Australian authorities in China in support of his and his sons’ visa application were false (CB 329-334; decision 44-50/57).

5. In its concluding remarks the Tribunal accepted the applicant offered assistance to a priest, and that this and his father’s profile as a church official brought him to the attention of the PRC authorities, and that it is feasible that those authorities “…kept an eye on him.” (CB 353; decision 55/57). But it rejected his claims of detention and physical harm, and the claims that stemmed from those. Nor did it accept that he stood a well founded fear of persecution should he return to China and continue to practice his religion in the Underground Church as he has in the past (CB 353-355; decision 55-57/57).

The application and evidence

1. These proceedings began with a show cause application filed on 29 July 2008.  The applicant now relies upon an amended application filed in court by leave on 4 November 2008.  The applicant relies on a single ground:

   The second respondent (the Tribunal) failed to complete the exercise of its jurisdiction.

   Particulars

   (a) Failure to lawfully consider a letter from a clinical psychologist sent to the delegate, and supplied to the Tribunal pursuant to s.418(3) Migration Act.

2. I received as evidence the book of relevant documents filed on 20 August 2008.  Unfortunately, it appears that the copy of the Tribunal decision reproduced in that book was not properly copied.  Counsel for the Minister handed up an accurate copy of the Tribunal decision.  References in this judgment are to the page numbers in that copy of the decision.  I also received as an exhibit[1] an application for asylum seeker assistance made on 1 November 2007 by the applicant and a psychological assessment by a psychologist, Ms Angela Dosselor addressed to Ms Nicole Cunningham of the Australian Red Cross dated 14 November 2007. 

   [1] exhibit A1

Submissions

1. The applicant contends that the Tribunal failed to give any meaningful consideration to the psychological assessment and thereby fell into jurisdictional error.  Relevantly, the applicant submits as follows:

   Even reading the Tribunal decision as charitably as the authorities require, it is apparent that although the Tribunal clearly knew what was in the psychologist’s letter, it put the document aside because it was sent 7 months previously for a purpose other than the assessment of the applicant’s refugee claims. There is no conclusion drawn as to whether or not the applicant indeed suffers from PTSD or the other ailments mentioned in the report, including poor concentration and memory, despite these being factors which are clearly relevant to the assessment of whether his account of having suffered the harm in China should be accepted. In NAJT v Minister for Immigration (2005) 147 FCR 51 at [212], Madgwick J said, in considering whether a particular letter was considered by the relevant Tribunal,

   212 … given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.

   In this case there was no active intellectual process directed at considering the relevance of the psychologists report to the applicant’s refugee claims.

   This leads to the second question noted above. The Tribunal has a duty to "review" the Tribunal decision (s 414 Migration Act). This entails a duty to consider all the evidence before it (see e.g. Sellamuthu v Minister for Immigration (1999) 90 FCR 287, 292). That the Tribunal does not have to refer to every item of competing evidence is not a license for it to disregard evidence - there is a qualitative difference between not considering evidence, and not specifically referring to particular items on evidence.

   Apart from this there must logically be a point where failure to consider evidence results in a failure to deal with an applicant's case, or to review the decision. An individual item of evidence can be so integral to the case raised by an applicant that a failure to deal with it amounts to a failure to deal with the applicant's case. This, as I understand it, is the ratio of the judgments of the Full Court of this Court in WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 NAJT v Minister for Immigration (2005) 147 FCR 51 at [212] per Madgwick J; [229] per Conti J (see above paragraph 13); and Minister for Immigration v SBAA [2002] FCAFC 195, [44] per Wilcox & Marshall JJ (cf: SZCOQ v Minister for Immigration [2007] FCAFC 9 per Buchanan J[2]; SZKHD v Minister for Immigration and Citizenship [2008] FCA 112).

   Finally, s 418(3) requires the Secretary to give to the Tribunal each document that he considers relevant to the review. It should be implied that there is a resulting duty upon the Tribunal to consider such material. Indeed, it would be surprising (to say the least) if the Tribunal had the option of not considering any information placed before it.

   [2] In that case Moore J and Besanko J dismissed the appeal on the basis that the relevant document had been considered.

2. The Minister contends that the Tribunal did give lawful consideration to the psychologist’s report.  The Minister relevantly submits:

   As the Applicant’s Submissions para 7 acknowledge, this report was referred to by the Tribunal at CB 325.3, where the Tribunal correctly noted that the report concluded that the Applicant displayed symptoms consistent with Post Traumatic Stress Disorder (PTSD).  Despite this, the Applicant’s Submissions claim that the report was not really considered at all by the Tribunal.  Para 13 states that the Tribunal “put the document aside” and para 14 states that there was no “active intellectual process” directed at the report by the Tribunal.

   The report was stated by the Tribunal at CB 325.3 to be “not determinative of the Applicant’s claims”, noting that it was concerned with the Applicant’s ability to undertake paid employment.  This does not bear out the suggestion in the Applicant’s Submissions that the report was “put aside” or that there was no “active intellectual process” directed to it.  On a fair reading (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291) the Tribunal has considered the report but, as it states, has not found it determinative. As the Tribunal found, after a lengthy analysis of the Applicant’s claims, that he was not credible and his claims untrue and fabricated (CB 353.6) it can be taken as not accepting that the Applicant had PTSD as a result of those claimed past experiences of persecution. The report was based simply on the Applicant’s own account of his symptoms, and did not consider the central issue before the Tribunal ie whether the Applicant was truthful. In those circumstances it is not surprising that the Tribunal did not consider the report determinative. It was not necessary for it to be given further consideration by the Tribunal as a factual premise on which the report was presumably based, ie that the Applicant had experienced past persecution, was found by the Tribunal to be false: Applicant WAEE v MIMA (2003) 75 ALD 630 (FCA/FC) at [47]; SZDXZ v MIAC [2008] FCAFC 109 at [30].

   It follows that there is no basis for the suggestion that the Tribunal did not consider the report.  However it may be noted that even if the report had been overlooked by the Tribunal that would not demonstrate jurisdictional error.  There is a distinction between failing to take account of a claim and failing to take into account individual items of evidence.  Only the former suffices to establish jurisdictional error: Singh v MIMIA [2006] FCA 1113 (Jacobson J) at [21-36]; SZHPI v MIAC [2008] FCA 306 (Branson J) at [15]. The report here is plainly in the latter category (as was found to be the doctor’s report in Singh).

Consideration

1. There is no doubt that the Tribunal was aware of the psychologist’s report.  That report stated as follows:

   Dear Ms Cunningham

   Thankyou for referring [the applicant] for psychological assessment.

   I met with [the applicant] on the 13^th of November 2007.  [The applicant] reports and displays a number of symptoms that are consistent with those of Post Traumatic Stress Disorder.  These being: intrusive thoughts, flashbacks, nightmares, sleep disturbance, exaggerated startle response, and avoidance of activities and thoughts associated with past events.  He also reports symptoms associated with Panic in response to the nightmares he experiences, including: chest pain, breathing difficulty and sweating.

   Additionally, [the applicant] reports a range of symptoms associated with Dysthymic disorder, including: depressed mood, poor appetite, sleep disturbance, fatigue, poor concentration and memory, and persistent worry.

   The symptoms experienced by [the applicant] cause significant distress and impairment to many areas of functioning.  Consequently, [the applicant] is currently not capable of undertaking paid employment.  [The applicant] is in need of whatever assistance can be provided of him.

   Should you require further details please do not hesitate to contact me.

   Kind Regards

   Angela Dosselor

   Intern Clinical Psychologist.

   (Emphasis added)

2. The Tribunal dealt with the psychologist’s report in the following way[3]:

   [3] Tribunal decision, page 40 (CB 325)

   Harm suffered in China

   A letter dated 14 November 2007 from STARTTS provided a psychological assessment of the applicant and concluded the applicant reported and displayed symptoms consistent with Post Traumatic Stress Disorder.  The report concluded the applicant was not capable of undertaking paid employment.  This letter some 7 months ago was sent to the Australian Red Cross, concerned the applicant’s ability to undertake paid employment, and is not determinative of the Tribunal’s consideration of the applicant’s claims.

1. It is not entirely clear to me what the presiding member meant by stating that the report was not “determinative” of the Tribunal’s consideration of the applicant’s claims.  If the presiding member meant that the report did not of itself lead to a decision on the applicant’s claims then the statement hardly needed to be made at all.  The Tribunal had already invited the applicant to a hearing on the basis that the Tribunal was unable to make a favourable decision on the basis of the written material before it[4].  Further, while the psychologist made reference to the applicant’s symptoms of PTSD, the psychologist said nothing about whatever history may have been given to her and the report was not on its face supportive (or not supportive) of the applicant’s claims of past persecution. It plainly could not be determinative of any of the applicant’s claims. 

   [4] CB 155

2. It is possible that the presiding member meant that the psychologist’s report was not relevant. It was provided for a purpose incidental to the applicant’s protection visa and review applications and there is no evidence that the applicant (or his advisors) had even seen it. It was not information required to be disclosed pursuant to s.424A (or s.424AA) of the Migration Act 1958 (Cth) (“the Migration Act”) and it does not appear to have been disclosed to the applicant by the Tribunal. However, if the Tribunal considered the psychologist’s report to be irrelevant to the review application before it, I would not have expected the Tribunal to mention the report at all. The Tribunal appears to have considered the report to be deserving of mention in relation to the applicant’s claims of past persecution in China.

3. Another possibility is that the Tribunal meant that it did not find the report to be persuasive or supportive of the applicant’s claims.  That is consistent with the content of the report.  It is also consistent with the presiding member’s use of the word “determinative” elsewhere in the decision[5].

   [5] Tribunal decision, page 43

4. The psychologist’s report did not have any direct bearing on the applicant’s claims of past persecution because it said nothing about them.  Nevertheless, the Tribunal was entitled to have regard to the report in considering the applicant’s claims and I accept that the Tribunal gave lawful consideration to the report in the context of considering the applicant’s claims of past harm.  The difficulty is, however, that the Tribunal appears to have overlooked the significance of the report in considering whether the applicant was able to give reliable evidence and in considering the credibility of his evidence.  The applicant’s claims were rejected on credibility grounds.  The apparent diagnosis by the psychologist of PTSD was a factor that needed to be taken into account in considering that issue of credibility and, indeed, in considering whether the applicant was in a position to give evidence at all.  In Minister for Immigration v SGLB (2004) 207 ALR 12 at [45] Gummow and Hayne JJ stated:

   The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the Tribunal must be convinced before an applicant can take part or continue to take part in proceedings before the Tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead. Section 420(2)(a) of the Act expressly provides that the Tribunal is not bound by the rules of evidence. The phrase "the rules of evidence" is taken to include both the common law rules of evidence and the Evidence Act 1995 (Cth). The only requirements that could be described as competency requirements are that an application for review by the Tribunal can only be made by a non-citizen who is the subject of the primary decision (by the Minister's delegate) and who is physically present in the migration zone when the application for review is made. The Act permits an application for a protection visa to be made by any person who is in Australia and who is not a citizen of Australia. That is not to deny that the rules of procedural fairness may, in particular circumstances arising in individual cases before the Tribunal, require some special steps or procedure to be followed. But there was no denial of procedural fairness in the present case. (footnotes omitted, emphasis added)

5. Since that case was decided, s.422B of the Migration Act has excluded the operation of the general law fair hearing rule. The issue of what steps may be required to accord a fair hearing must now be considered in the context of s.425 of the Migration Act. The obligation on the Tribunal is to provide a real hearing opportunity in which the applicant understands what is happening and is able to participate effectively. Where an applicant is under a disability that may impair his or her ability to participate effectively, the Tribunal must take that into account, as the Tribunal did in SGLB[6].

   [6] WAJR v Minister for Immigration [2004] FCA 106 at [43]; Minister for Immigration v SCAR [2003] FCAFC 126 at [37].

6. It is for the Tribunal to determine, as a question of fact, whether an applicant is able to effectively participate in a hearing, and whether his or her ability to give reliable evidence may be impaired by a mental condition. Provided that the Tribunal makes that determination on a basis open to it on the available material, there would generally be no issue of jurisdictional error. A difficulty arises, however, whether the Tribunal fails to make any such determination and the available material calls for one. In those circumstances there may or may not be a breach of s.425, depending upon a determination of whether the hearing opportunity was a real one. On the material before me I am unable to make that determination. But that is not the end of the matter.

7. The Tribunal’s decision is silent on any consideration of the report in relation to the issue of the applicant’s capacity to give reliable evidence.  Given that the report was considered in another context, the applicant’s factual claims themselves, I infer from the Tribunal’s silence on the issue of the reliability of the applicant’s evidence that the applicant’s capacity to give reliable evidence because of his mental condition was not considered.  Counsel for the Minister sought to avoid the consequence of that failure by noting that the applicant was represented before the Tribunal by RACS and that no claim had been made either by the applicant or by RACS in any of the material submitted to the Tribunal that the applicant might be under some disability.  The answer to that submission is that there is nothing to suggest that RACS (or even the applicant) was aware of the psychologist’s report.  The applicant would have been aware that he had been interviewed by the psychologist but it cannot be assumed that he was provided with a copy of the report.  The psychologist might have considered it inappropriate to do so.  I proceed on the basis that only the recipient of the report (the Red Cross) and the Tribunal were aware that the applicant may suffer from PTSD.

8. I accept the applicant’s submissions that the failure of the Tribunal to give any consideration to the report in relation to the question of whether the applicant had the capacity to give reliable evidence, establishes that the Tribunal fell into jurisdictional error.  The Tribunal made a similar mistake to that found by the Federal Court in SZKHD v Minister for Immigration [2008] FCA 112 at [27]-[28]. On that basis, the applicant is entitled to relief in the form of the constitutional writs of certiorari and mandamus.

9. I will hear the parties as to costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  28 November 2008