SZNZX v Minister for Immigration
[2010] FMCA 127
•18 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNZX v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 127 |
| MIGRATION – Review of decision of RRT – whether the Tribunal overlooked a medical report upon the applicant allegedly corroborative of his claims to have been persecuted – whether such overlooking constituted jurisdictional error. |
| SZEHN v Minister for Immigration (2005) FCA 1389 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 2 CLR 323 SZEHN v Minister for Immigration [2005] FCA 1389 WAIJ v Minister for Immigration [2004] 80 ALD VAAD v Minister for Immigration [2005] FCAFC 117 Singh v Minister for Immigration [2006] FCA 1113 SZDXZ v Minister for Immigration [2008] FCAFC 109 WAEE v Minister for Immigration [2003] FCAFC 184 |
| Applicant: | SZNZX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2691 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 February 2010 |
| Date of Last Submission: | 18 February2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2691 of 2009
| SZNZX |
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 who applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 22 July 2008. Before the department made its decision not to grant the applicant a protection visa on 13 October 2008 the Red Cross had sent to the Department a request for asylum seeker assistance on Form 1125 [CB 65-69]. Included in those documents was a statutory declaration from the applicant and a report from an intern clinical psychologist acting on behalf of STARTTS. On 5 November 2008 the applicant applied for review of the delegate’s decision from the Refuge Review Tribunal. He attended a hearing with the Tribunal which on 8 October 2009 affirmed the decision not to grant a protection visa and handed that down on the same day.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of his being a Buddhist monk, a minority religion in Bangladesh. The applicant gave a detailed history of what he claimed to have been persecution commencing in approximately 2000 when he said that he was involved following a rape of a 15 year old Buddhist girl in the care of the monks and was responsible for bringing that incident to the attention of the authorities. From then on he claims that he was subject to persecution from Muslims, organised and non-organised, by reason of which he was required to escape from Chittagong and travel to Sri Lanka and into India. The applicant also claimed that he became involved in demonstrations arising out of the murder of another monk on 21 April 2002. He made claims concerning the killing of a fellow worker and a religious colleague in January 2004.
It is not necessary to go into great detail about the applicant’s claims because the ground upon which he seeks the court’s confirmation that the Tribunal fell into jurisdictional error is a simple and single one. It is that the Tribunal did not consider what he claims is the corroborative evidence contained in the medical report which is appropriately set out below:
“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 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, memory and concentration difficulties, avoidance of reminders of past events, hyper-vigilance, persistent intrusive thoughts, headaches, body pain, fatigue, sweating and an exaggerated startle response.
The symptoms experienced by Mr Applicant are having a significant impact on 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 of him [sic].
Please do not hesitate to call if you require any further information regarding this client.
Yours Sincerely
Angela Dossetor
Intern Clinical Psychologist”The Tribunal in a lengthy decision record comes to its final conclusions at [138] [CB 307]:
“Having considered all of the evidence before it, the Tribunal is of the view that the applicant has not been truthful about the profile he supposedly attracted as the result of the April 2000 rape of the 15-year-old girl described in his application. The Tribunal does not accept that he had a role in reporting the matter to local administrators or that he spoke out in relation to the rape, or that he reported the rape to anyone else, or that his temple (or any place where he was staying at the time) was invaded by Muslim fanatics, or (consequently) that he or any other monk was tortured there, or that he reported any beating or any (even vaguely described) group of Muslim fanatics to the police or that the police threatened him or that he faced reprisals from Muslim fanatics, or that, as he claimed, he had to hide in subsequent months and years from ongoing interests on the part of Muslim fanatics, led alone as a result of the April 2000 rape incident in his village.”
Then:
“ [141]The Tribunal does not accept the applicant’s study in Indian and Sri Lanka arose out of his having decided to take some advantage of an escape from Bangladesh motivated by protection concerns.
[146] … Overall, the Tribunal gives no weight to the applicant’s involvement in the April/May 2002 protests or to the fact that he was injured during those protests.”
The Tribunal similarly dismissed all the other claims that the applicant had made after giving them full consideration and providing detailed reasons.
The applicant accepts that the Tribunal stated that it had the Tribunal file on which the letter appears before it. He accepts that the Tribunal is not obliged to refer to every item of evidence before it and it does not follow that the failure to refer to evidence means that it has not been considered; SZEHN v Minister for Immigration (2005) FCA 1389 Lindgren J at [58] and the cases there cited. It is therefore necessary for the court first to come to a conclusion as to whether or not it is possible on the balance of probabilities to come to a finding that the Tribunal did ignore the letter. I am unable to do so. As I have said the Tribunal mentions that it considered that the department’s file and there is no reason to doubt that this letter was upon it as it appears in the court book. However the letter was not put forward by the applicant in support of his claim. It was probably not “put forward”, as one understands those words, by the applicant at all. It was sent to the department by the Red Cross and that was done for the purposes of obtaining some financial support for the applicant. Because of the nature of the letter, the reason for which it was written and the matters which I shall describe below, a court can easily draw an inference that the letter was considered by the Tribunal not to have been of any significance either in making a particular claim on behalf of the applicant or corroborating a particular claim. Firstly, the letter indicates that the writer only briefly spoke to the applicant. Secondly, the writer does not describe the experiences of persecution which the applicant described to her. Giving the applicant the benefit of the doubt one can assume that he told her the same story that he had told the department in his PVA, but he might not have, he could easily have told her a completely different story.
The psychologist then takes the brief description that was given to her and considers the symptoms that the applicant told her that he was suffering from and tells the department that these are consistent with those of post traumatic stress disorder and dysthymic disorder. She does not tell the department that the applicant is suffering from PTSD or that she is satisfied that any symptoms that he was suffering from were directly related to his experiences. It seems to me that at best this letter indicates that the applicant had repeated a story to the psychologist that he was to provide both to the department member who interviewed him and later to the Tribunal. Repetition is not the same as corroboration.
In case I am wrong about my finding I should shortly consider the law relating to the overlooking of evidence. This is a matter which has excited the mind of Full Benches and the High Court and the applicant agrees that there is a distinction between “overlooking evidence which, if accepted, might have led the Tribunal to make a different finding of fact, and overlooking evidence which, if accepted, might have led it to find a well-founded fear of persecution established”. See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87-89] and other cases cited.
“The principal underlining the distinction is that the Act does not prohibit the making of wrong findings of fact; it requires a review with a view to the Tribunal’s deciding if it is satisfied that the applicant has a well-founded fear of persecution for a Convention reason. Only an overlooking of evidence which might have persuaded the Tribunal to be so satisfied, would amount to jurisdictional error, and it is only for jurisdictional error that the Tribunal’s decision can be set aside notwithstanding the privative clause in s474 of the Act; Plaintiff S157.”
SZEHN v Minister for Immigration [2005] FCA 1389 per Lindgren J at [72].
The applicant seeks to bring this case within the class of cases where the Tribunal has had regard to corroborative evidence of a claim citing WAIJ v Minister for Immigration [2004] 80 ALD 568 at [27] and VAAD v Minister for Immigration [2005] FCAFC 117 at [77] but he has also referred me to Singh v Minister for Immigration [2006] FCA 1113 which is an overlooking case. In fact most of the cases to which I have been referred including SZDXZ v Minister for Immigration [2008] FCAFC 109 are cases where the courts have found that in fact the so-called corroborative evidence did not in itself constitute evidence of a claim, rather, had it been accepted, it would have constituted a finding of fact. The only case that the applicant refers to in which the court found in favour of an overlooking was ApplicantWAEE v Minister for Immigration [2003] FCAFC 184. But this was a case in which a whole ground of fear had not been taken into consideration by the Tribunal. After expressing in terms which it is worth recalling at [46 and 47] the general principles that a court should look at when considering whether or not the failure to consider a piece of evidence constitutes jurisdictional error the court said at [48]:
“[48]In the present case it was clearly a significant element of the appellant’s application before the Tribunal that the marriage of his son S to a Muslim woman would have repercussions for him and his wife upon their return to Iran. It is also clear that he was contending that these repercussions would amount to persecution for a Convention reason. That is to say the religion of S and his wife …
[49] The material put before the Tribunal on the son’s inter-marriage issue and the contentions advanced in respect of it went directly to the criteria for the grant of a protection visa set out in s.36. While the Tribunal recounted the appellant’s claims on this issue earlier in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue.”
In the instant case the issue was whether or not the applicant had been tortured and persecuted for reason of his religion. He provided the Tribunal with evidence of his claims relating to the various incidents that made up a totality of his claim. Each of those was considered by the Tribunal at length. For the reasons given the Tribunal concluded that it could not be satisfied that they occurred. All that the letter from the clinical psychologist did was to suggest that the applicant may have been the victim of some conduct. It did not in itself raise any new claims for him. As those claims were dismissed by the Tribunal it is my view that the failure to have regard to this letter (which I have not accepted) cannot constitute a jurisdictional error and the quoted authorities clearly indicate that this is the case.
In those circumstances the application is dismissed. The applicant must pay the first Respondent’s costs which I assess in the sum of $5,865.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 February 2010