SZNGI v Minister for Immigration - [2009] FMCA 1032

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNGI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1032

MIGRATION – Review of RRT decision – applicant a citizen of Bangladesh – where Tribunal presented with a report detailing applicant’s post-traumatic stress disorder – whether Tribunal obliged to investigate claims of mental incapacity – whether Tribunal entitled to find that report was not probative as evidence of persecution.

Migration Act 1958 (Cth), s.425

SZIWY v Minister for Immigration [2007] FMCA 1641
Minister for Immigrationv SZIAI [2009] HCA 39
Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant:

SZNGI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 392 of 2009

Judgment of:

Raphael FM

Hearing date:

14 October 2009

Date of Last Submission:

14 October 2009

Delivered at:

Sydney

Delivered on:

14 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr J. Young

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 392 of 2009

SZNGI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh who arrived in Australia on 10 June 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 23 July 2008. On 16 October 2008 a delegate of the Minister refused to grant a protection visa and on 11 November 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant appeared before the Tribunal at hearing where he was assisted by a migration agent. On 22 January 2009 the Tribunal determined to affirm the decision and handed that decision down on 23 January 2009.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of him being a Buddhist monk living in Bangladesh. He had resided in his home country until 2005 when he left for India where he stayed until July 2006 when he went to Thailand. He returned in December 2007. The applicant gave a history of incidents in which he claimed that there had been persecution of the Buddhist minority, including himself, by local Muslims. His complaints included the filing of fictitious cases against him and a history of an incident which occurred to his brother in which he said that his brother’s leg was cut off.
The Tribunal questioned the applicant upon his claims and drew out a number of inconsistencies between the evidence given by him in his protection visa application and before the Tribunal:
“The Tribunal again noted that his oral evidence appeared to be inconsistent with his written claims. He claimed in his written statement that after the elections, he was asked for money as a community leader, that they did not pay and that he was involved in organising villagers, while he now claimed that the incident in the temple happened before the elections and that he went into hiding and did not return to the village.” [56] [CB 188]
The Tribunal was also concerned about some allegedly corroborative evidence provided by way of documentation from the applicant and noted that the events which the applicant had described had taken place some considerable time prior and wondered whether the applicant would still be of interest to people in his community should he return.
The Tribunal accepted that the applicant was a Buddhist and had been ordained as a monk. It accepted much of his story of his early life but did not accept that he had been threatened, harassed or physically harmed or that this had happened to his family. It did not accept that demands for money, extortion or blackmail were made against the applicant by a named individual or any others and it did not accept that the applicant organised resistance to fanatics or that he had refused to pay sums of money demanded of him. It did not accept the false charges or that he had been in hiding before he left Bangladesh or during his trip to Bangladesh in 2008.
There was produced to the Tribunal, and referred to at the hearing, a letter from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). This letter is found at [CB 49]. It consists of a report in the following form:
“Dear Ms Gray,
Thank you for referring Mr Applicant for psychological assessment.
I met with Mr Applicant on 8 August 2008. During the assessment Mr Applicant briefly described experiences of religious persecution he experienced in Bangladesh.
Mr Applicant reports and displays a number of symptoms that are consistent with those of post-traumatic stress disorder and dysthymic disorder. These being: sleep disturbance, nightmares, loss of appetite, memory and concentration difficulties, hyper-vigilance, persistent intrusive thoughts, excessive worry, feelings of grief and loss, headaches, body pain, fatigue, sweating and an exaggerated startle response.
The symptoms experienced by Mr Applicant are having a significant impact many areas of his functioning. As a result, he is presently unable to perform paid employment. Mr Applicant is in need of whatever financial assistance can be provided to him.
Please do not hesitate to call if you require any further information regarding this client.
Yours sincerely,
Angela Dossetor
Intern Clinical Psychologist.”
This document, the STARTTS report, is referred to on a number of occasions in the Tribunal’s decision record. It first appears at [25] [CB 180]:
“The applicant also subsequently provided a report from Ms Dossetor, a clinical psychologist from STARTTS, who states that the applicant reported and displayed a number of symptoms that were consistent with those of the post-traumatic stress disorder and dysthymic disorder, being [symptoms described]. It is stated that these symptoms have a significant impact on many areas of the applicant’s functioning. This report appears to have been prepared for the purpose of the application for asylum seeker assistance.”
The question of the applicant’s mental condition was referred to again at [58] [CB 189]:
“The Tribunal again noted that the inconsistencies in the applicant’s evidence may cause it to find that the applicant has been untruthful in his evidence. The applicant said that he is mentally not stable. The applicant’s advisor stated that there was no medical evidence about the applicant’s condition.”
At [79] [CB 193] the Tribunal notes:
“The applicant’s advisor stated that the applicant informed him the previous day that he was suffering from a trauma and he recommended that the applicant should see a psychiatrist to seek treatment. He said that the other claims are outlined in his submission to the Tribunal. The Tribunal asked the applicant if he had sought psychiatric treatment. The applicant said that he had not yet made an appointment to see a psychiatrist but he thinks it is inevitable. He cannot sleep at night or eat properly, all the incidents come before his eyes. He does not know what to do and he does not have money to see a doctor.”
At [89] [CB 197] the Tribunal, in it’s findings and reasons, states:
“The applicant informed the Tribunal at the hearing that he was unable to sleep and that he could not eat and that his condition had affected him. He presented a letter from STARTTS indicating that he has symptoms that were consistent with a post traumatic stress disorder. The Tribunal acknowledges this evidence, however the Tribunal has satisfied itself that the applicant has been given a genuine opportunity to appear and present oral evidence. The Tribunal notes that the applicant provided answers that were detailed and responsive and he did not appear to have any difficulty understanding the Tribunal’s questions or replying to these. For the same reason, the Tribunal does not accept that the inconsistencies in the applicant’s evidence, and other concerns that are described below, are a result of the applicant’s mental or medical condition.”
At [90] [CB 198] the Tribunal notes:
“The applicant claimed that he could not sleep and eat and that he did not think he had to confront such a procedure. The Tribunal is mindful of the letter from STARTTS presented by the applicant which also refers to the applicant reporting a number of symptoms including sleep disturbance, nightmares, memory and concentration difficulties. However, again, the Tribunal notes that the applicant’s evidence appears to have been confused about some aspect of his claims while he was able to describe coherently and in detail other aspects of his claims and he was generally responsive to the Tribunal’s questions and was effective in the presentation of his evidence. The Tribunal does not accept the applicant’s explanation for the inconsistency, nor that the inconsistency was the result of the applicant’s condition …”
Finally, at [92] [CB 199] the Tribunal says:
“The Tribunal has considered the applicant’s claim that he is mentally unstable and the STARTTS report, which refers to the applicant describing his experience of religious persecution he experienced in Bangladesh and notes that the applicant displays a number of symptoms that are consistent with the PTSD and dysthymic disorder. While the Tribunal acknowledges the applicant’s condition and has given it due weight when assessing the applicant’s evidence, the Tribunal does not consider the report itself to be probative evidence of the religious persecution the applicant experienced in Bangladesh as the report relies on the applicant’s description of such persecution.”
On 5 August 2009 the applicant filed an amended application in this Court seeking review of the Tribunal’s decision. The application then contained four grounds of which the first, itself, was divided into four. At the hearing today the applicant withdrew grounds 2, 3 and 4 in the original application and proceeded only on grounds 1, 1A, 1B and 1C. The applicant submitted that grounds 1, 1A and 1B were grounds relating to the fairness of the hearing before the Tribunal and the capacity of the applicant to deal with matters arising in connection with the hearing. These grounds are in the following form:
“1 The second respondent made jurisdiction error by acting in breach of section 425 of the Migration Act (“the Act”) and/or failing to consider a relevant claim and/or evidence and/or failing to exercise jurisdiction in that it failed to consider whether disorders suffered by the applicant were probative of his claim (other than to note that a report details the Applicant’s condition relied upon the Applicant’s descriptions of persecution.
1A. That the second respondent made jurisdictional error by failing to consider whether to investigate the issue of the Applicant’s mental capacity and/or psychological or psychiatric state before reaching conclusions about the Applicant’s evidence.
1B. Further, or in the alternative to above, the Second Respondent made jurisdictional error by failing to consider what, if any, inquiries should be made in relation to the issues raised by a report (at CB49) (referred to as the STARTTS report).
1C. The second respondent made jurisdictional error at [92] at CB 199 by stating that the STARTTS report was not probative evidence of persecution “as the report relies on the Applicant’s description of such persecution” in circumstances where the second respondent was not entitled to dismiss corroborative material in support of the Applicant’s claims.”
To my mind, ground 1 is a rolled up version of grounds 1A, 1B and 1C and perhaps it is best to deal with each of those grounds in turn. The applicant relies for his authority that the Tribunal had the duty suggested it did in grounds 1A and 1B upon a decision of Smith FM in SZIWY v Minister for Immigration [2007] FMCA 1641 (“SZIWY”). In this case, an applicant had come before a Tribunal presenting with an appearance of mental confusion. The applicant had been interviewed by a Legal Aid solicitor who had written a covering letter to a visa application by the applicant making reference to the applicant’s confused presentation and the concern that it reflected mental ill health.
At the hearing before Smith FM, there was produced a medical file that had been created when the applicant was taken into immigration detention. It was said that she exhibited signs of self-harm and a doctor had diagnosed anxiety problems with likely personality problems or disorders. It would appear that none of this medical history was conveyed by the Secretary of the Department to the Tribunal but the Tribunal had before it the originally expressed concerns of the applicant’s solicitor and submissions which had been lodged with it stating that the applicant had ongoing medical treatment for anxiety and depression both in China and in Australia.
At [21] of his Honour’s decision record he refers to evidence establishing impairment that was then before him. At [29] and following he discusses the jurisdictional effect of the failure to comply with s.425 in his usual exemplary manner. At [36] his Honour says:
“Procedurally, the Tribunal failed to consider whether to investigate the issue of the applicant’s mental capacities, and, in particular whether to call for medical records available at Villawood or for other psychological assessments, before reaching conclusions on the applicant’s evidence and completing its review. In my opinion, this failure also resulted in jurisdictional error. In the circumstances known to the Tribunal which I have found above, I consider that it was not open to the Tribunal to proceed without first considering what, if any, inquiries should have been made into the concerns raised by the applicant’s solicitor. The failure of the Tribunal to consider whether to investigate the applicant’s mental capacities constituted, in my opinion, a failure "to comply with the duty imposed by section 414(1) to conduct the review and the duty under section 425(1) to hear from the [applicant]" (cf. Applicant NAFF of 2002 (supra) at [32]-[34]).”
With respect to Mr Young, who put forward a strong and well-argued case for the applicant, I do not believe that the instant case can be said to have the necessary similarity with SZIWY to assist me in drawing any assistance from it. I have already set out the detail of the only medical evidence that existed. It was a report made some months before the hearing by an intern clinical psychologist which was given not for the purposes of considering the applicant’s ability to appear at a hearing, but in respect of the applicant’s ability to work. There is a vast difference between the two.
I would further say that I do not believe that this is a case where the Tribunal had failed to take into account that report. The quotations from the Tribunal’s grounds and reasons adequately indicate that the Tribunal did take this report into account. Mr Young argues that the Tribunal should have considered whether or not it should take any further steps but, in my opinion, the Tribunal did do that. If one looks at the extract from [58] of the Tribunal’s findings and reasons, I believe I am entitled to draw an inference, in the absence of a transcript which, if this inference was to be impugned, the applicant should have provided, that some questions were asked by the Tribunal about the applicant’s mental condition to which a response given by the applicant’s adviser was that there was no medical evidence about it. This consideration is repeated at [79] when the Tribunal asks the applicant if he has sought any medical attention.
It seems to me that it could be said that the Tribunal was there considering whether or not it should take any further steps. But it appears to have come to the conclusion that it could not, because there was no further evidence upon which the applicant could have relied. There is no suggestion in a case such as this, where the Tribunal indicates that it took into consideration the alleged difficulties and weighed them against the manner in which the applicant gave his evidence, that the Tribunal should independently have caused the applicant to have a medical examination. The Tribunal is the master of its own procedures and provided that it acts lawfully and provides the applicant with a hearing of the type required by s.425, it is acting within its jurisdiction.
The applicant, rightly in my view, accepted the views of the High Court in Minister for Immigrationv SZIAI [2009] HCA 39 that there was no independent area of jurisdiction arising out of a failure to inquire; there is only one arising out of a duty to review. A failure to inquire may in very restricted circumstances constitute such a failure of duty, but I do not believe it constituted a failure of duty in this case. The Tribunal was at all times conscious of the concerns expressed by the applicant about his mental condition and took those concerns into account when assessing his evidence. He came to the conclusion that the concerns that he expressed did not affect the manner in which he gave his evidence nor did they answer the inconsistencies that it had found. I note also that the STARTTS report itself is brief and contains no reference to the aetiology of the condition which the Tribunal found the applicant had symptoms of. I am unable to find that the Tribunal fell into jurisdictional error in the way suggested by the applicant in paragraphs 1A or 1B of the application.
Ground 1C can, I believe, be dealt with speedily even though it was argued by Mr Young at some considerable length. The remarks made by the Tribunal seem to me to be almost identical to the remarks made by the Tribunal in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (“S20”). At [15] Gleeson CJ said:
“The other alleged errors concern the way in which the Tribunal dealt with certain other information relied upon as corroboration. That information came from a dentist and a doctor. The Tribunal said … [reference to dentist’s evidence].
The Tribunal cannot give weight to the report by Dr Kay because the doctor is relying on the applicant’s assertions as to how the hernia was sustained, and the Tribunal has found above that the applicant is not credible and cannot be satisfied that the applicant was ever detained or physically mistreated by the Sri Lankan authorities.”
At [17] his Honour says:
“I see no error in the way in which the information from the dentist and the doctor was treated.”
In my view, the Tribunal was using the word “probative” as a way of describing the failure to give weight which the Tribunal was entitled to do.
S20 is commonly considered in the context of what is now known as the “poisoned well” from the views expressed by McHugh and Gummow JJ in their joint decision, but at [51] and [52] those Justices say:
“The Tribunal further declared that it could not give weight to the written report from the medical practitioner in Australia stating that the appellant had had surgery for a right inguinal hernia, not a common occurrence in 27 year old person such as the applicant. The Tribunal discounted the medical report for its reliance upon assertions by the appellant as to the circumstances in which the hernia had been sustained.
The decision of the Tribunal has not been shown to have been, in the sense propounded by the appellant illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds. To a significant degree the appellant’s failure follows from rejection of the construction placed by the appellant upon the critical passages in the Tribunal’s statements of reasons.”
I am not convinced that these extracts from S20 relating directly to the use of the doctor’s report are only available in a “poisoned well” case. I am of the view that their Honours’ reasoning would apply equally to a case such as this.

It will be clear from the above that I have come to the view that none of grounds 1, 1A, 1B or 1C of the amended application have been established as evidencing jurisdictional error on the part of the Tribunal. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 October 2009