SZNCR v Minister for Immigration and Citizenship
[2012] HCASL 26
SZNCR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2012] HCASL 26
S313/2011
The applicant is a citizen of Sri Lanka. The Refugee Review Tribunal ("the Tribunal) upheld a decision of a delegate of the first respondent refusing his application for a protection visa. The Tribunal found that the applicant's claims of political persecution lacked credibility by reason of the vague, unconvincing and improbable character of the evidence relied on in support of them.
The applicant applied to the Federal Magistrates Court (Scarlett FM) for judicial review. He tendered expert evidence in support of a contention that he was suffering from a major depressive disorder which handicapped him in his ability to cope with the legal process. Scarlett FM accepted that contention. He said that if the Tribunal had been aware of the applicant's mental state it might have reached a different conclusion about his credibility. He found that the applicant was denied a proper opportunity to give evidence and present arguments because of his mental state and that, as a result, the requirements of s 425 of the Migration Act 1958 (Cth) had not been complied with. Scarlett FM also held that the Tribunal made a jurisdictional error in failing to consider a medical certificate dated 6 August 2007, a matter relevant to the applicant's claim.
The first respondent then appealed to the Federal Court of Australia (Tracey J).
Tracey J disagreed with the first aspect of Scarlett FM's reasoning for two reasons. The first reason was that, applying Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, which overruled authority on which Scarlett FM relied, he held (Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]) that:
"Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her 'entirely unfit' to attend a Tribunal hearing and answer questions cannot be held to have been denied a 'real and meaningful' opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing."
And Tracey J held (at [33]) that the "mere possibility that the Tribunal, had it been aware of an applicant's mental state, may have formed a different conclusion about the applicant's credibility is not sufficient to establish a contravention of s 425(1)". The second reason was that Scarlett FM failed to take into account the first respondent's argument that the expert evidence should not have been accepted because the transcript of the Tribunal hearings contradicted it.
The second reason why Tracey J disagreed with Scarlett FM's view that the Tribunal had overlooked the medical certificate was that it came under cover of a letter enclosing another later medical certificate to which the Tribunal did refer and which itself referred to the earlier certificate. In any event, the applicant had suffered no prejudice, because the only item to which the Tribunal was not prepared to give weight appeared in the second certificate but not the first.
The applicant applies to this Court for special leave to appeal. The papers filed in support of that application do not deal with the detail of Tracey J's reasoning. That reasoning is insufficiently attended by doubt to justify the grant of special leave to appeal. So far as the applicant's papers go beyond a challenge to Tracey J's reasoning, they do not suggest that any jurisdictional error took place in the Tribunal.
The application is dismissed.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
J.D. Heydon V.M. Bell
29 February 2012
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