SZODR v Minister for Immigration

[2010] FMCA 402

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 402

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Pakistan – applicant not believed – Department and Tribunal notified that the applicant showed anxiety symptoms and was unfit to work - applicant attending Tribunal hearings – adjournment of hearing – applicant diagnosed after the Tribunal decision as suffering post traumatic stress disorder in relation to her experiences in Pakistan – neither the applicant nor the Tribunal aware of the diagnosis at the time of the Tribunal hearings but Tribunal on notice of the symptoms – whether the Tribunal complied with s.425 considered – Tribunal not commenting on a medical assessment of the applicant – whether the Tribunal overlooked relevant material considered.

PRACTICE AND PROCEDURE – Observations on the appropriateness of a notice disputing facts filed on behalf of the Minister.

Migration Act 1958 (Cth), ss.422B, 424A, 24AA, 425

Minister for Immigration v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v SZNVW & Anor [2010] FCAFC 41
Minister for Immigration v Yusuf (2001) 206 CLR 323
MZYHS v Minister for Immigration & Anor [2010] FMCA 417
SZIWY v Minister for Immigration [2007] FMCA 1641
SZKHD v Minister for Immigration [2008] FCA 112
SZLPO v Minister for Immigration (2009) 255 ALR 407
SZMOI v Minister for Immigration [2008] FMCA 1507
SZNCR v Minister for Immigration [2010] FMCA 45
SZNZX v Minister for Immigration [2010] FMCA 127
SZNZX v Minister for Immigration [2010] FCA 469

Applicant: SZODR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 250 of 2010

Judgment of: Driver FM

Hearing date: 9 June 2010

Date of last submission: 5 July 2010

Delivered at: Sydney

Delivered on: 15 July 2010

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Legal Aid Commission of NSW

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 250 of 2010

SZODR

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 made on 7 January 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from Pakistan and had made claims of religious persecution.  The following statement of background facts is derived from the submissions filed on behalf of the parties.

3. The applicant arrived in Australia on 25 February 2009: court book (CB) 134 [2]. She applied for the visa on 9 April 2009: CB 1-49. The delegate interviewed the applicant on 11 June 2009: CB 52-55, and refused the visa on the same day: CB 76-88. The applicant applied to the Tribunal for review on 7 July 2009: CB 94-97. The Tribunal held hearings on 28 August 2009: CB 111-113, and 19 November 2009: CB 118-120.

4. The applicant’s claims are set out at CB 27-33.  In short she was a Christian (Catholic) and a midwife in Rawalpindi.   She did not wear a Burqua and was recognised by Muslims as a Christian.   As a senior member of her Church the applicant voluntarily assisted as a mid wife for poor Muslim women.

5. In 2007 the applicant started assisting Afghan refugee Muslim women in a suburb of Islamabad.  In August 2008 she was attacked by three men while visiting a patient.  She managed to escape, but after this she ceased visiting patients in that area.

6. In December 2008 a refugee family came to her seeking assistance for their daughter.  Although reluctant to do so, the applicant assisted with the birth.

7. The following week the applicant was abducted by four men in a car while walking in her neighbourhood.  The applicant was told that the girl had converted to Christianity and she was to blame.  The abductors told the applicant they were Taliban soldiers and they were taking her to Afghanistan to assist women there.  The applicant was detained for a week and sexually abused then returned to her home.  She was told the abductors would return shortly to take her to Afghanistan.

8. The applicant claimed that the Taliban came to her house every week looking for her, but they could not find her because she hid at home or in a neighbour’s house.  She claimed that the police would not assist her because they were also Muslims, so she applied for a passport which was issued on 16 December 2009, and applied for a tourist visa to visit Australia on 22 January 2009.  She travelled to Australia with her mother in law, who is an Australian citizen.  She claimed that since her arrival in Australia the Taliban have again come to her house and asked her husband for her to be handed over.  See generally CB 136-151.

9. The applicant has affirmed an affidavit in which she explains that her husband took her to a Clinic called Valley Clinic at Rawalpindi in December 2008.  She saw a general practitioner and told her that she had been kidnapped and raped and could not sleep.  She was prescribed diazepam and received counselling in December 2008 and January 2009.  She was not psychologically assessed.

10. The applicant attended a GP in Sydney.  She was not referred for psychological examination.  After applying for a protection visa the applicant applied for financial assistance from the Red Cross.

11. The applicant underwent a psychological assessment by Ms Trinh Ha, psychologist, as part of her application for financial assistance from the Red Cross (CB 89).  That assessment took place on 10 June 2009, the day before the interview with the delegate.  She was assessed as displaying a range of symptoms associated with anxiety which included an increased level of intrusive thoughts which impacted on her ability to concentrate and focus.  In Ms Ha’s opinion the applicant was not capable of undertaking paid employment. The applicant was not provided a copy of this advice and was unaware of its existence.

12. The interview with the delegate took place on 11 June 2009.  The delegate describes the applicant’s evidence in respect of the abduction incident as “brief general and unconvincing”.  The delegate refused the application for a protection visa that day (CB 76-88).

13. The applicant applied to the Tribunal on 7 July 2009 (CB 94).

14. Ms Ha’s advice to the Red Cross was sent to the Minister’s Department, which subsequently furnished it to the Tribunal on or about 13 July 2009. 

15. The applicant first attended a hearing with the Tribunal on 28 August 2009.  It was 2 hours and 40 minutes duration (CB 113)

16. The Tribunal makes no reference to the advice of Trinh Ha in its questioning of the applicant.

17. The applicant underwent a second psychological assessment on 6 November 2009 by Heyam Haddad, Clinical Psychologist. On 6 November 2009 he advised (CB 91):

    (the Applicant) is currently experiencing features of Major Depressive Disorder and Post traumatic stress disorder.  Such features include depressed mood, disturbed sleep and regular nightmares, disinterest in regular daily activities, withdrawal, visual flashbacks pertaining to her torture and trauma experiences, and increase hypervigilance.  As a consequence of this symptomatic presentation, [the applicant] is currently not capable of undertaking paid employment

18. This advice was sent to the Minister’s Department, but not to the Tribunal as had been the case with the earlier letter.  Again the applicant was unaware of the existence of this advice.

19. Heyam Haddad’s assessment was 13 days prior to the second hearing of the Tribunal on 19 November 2009.  This hearing was 2 hours 7 minutes duration (CB 119).

20. There is no reference by the Tribunal to Trinh Ha’s advice in the course of the second hearing.

21. The Tribunal accepted that the applicant was a Catholic and a midwife but otherwise found her not credible, noting among other things that:

    a)it was implausible that the applicant would visit Muslim homes unaccompanied given she claimed to have feared Muslims since 2002;

    b)her description of the Islamabad suburb she claimed to have visited was inconsistent with independent country information;

    c)she had given inconsistent evidence concerning when she applied for a passport, and the Tribunal found she had done so to travel with her mother in law to Australia; and

    d)her account of her abduction in December 2008 was vague in terms of dates and it was implausible that her husband would not have lodged a report about her disappearance and that the applicant would have waited until February 2009 to leave Pakistan, despite having a passport from December 2008. The Tribunal rejected all the applicant’s claims of past harm in Pakistan, and found that her claimed fears were not well founded: CB 154 [85]. See generally CB 151-155.

22. On 3 March 2010 the applicant was interviewed by Dr Anthony Dinnen, a psychiatrist with nearly 40 years clinical experience with particular expertise in post traumatic stress disorder (PTSD).  The opinion of Dr Dinnen is that the applicant was suffering PTSD at the time of the interviews with the delegate and the Tribunal and “the interrogation by the delegate and the Tribunal as to the specific detail of her experience would have increased her levels of anxiety and apprehension to the extent that it could have interfered with her ability to give a proper account of herself”.

The application and evidence

1. The applicant relies upon a further amended application filed in court by leave on 9 June 2010.  The application contains two grounds:

   1.      The Tribunal failed to comply with section 425 of the Act.

   Particulars:

   The applicant was denied “real and meaningful” opportunity to participate in the hearing and to have her evidence fairly assessed by the Tribunal in the light of her diagnosed mental impairments.

   2. The Tribunal failed to complete the exercise of its jurisdiction as it failed to adequately consider or take into account the contents of the report of My Trinh Ha dated 10 June 2009, when assessing the applicant’s evidence before it.

2. I received as evidence the book of relevant documents (court book) filed on 11 March 2010 and the applicant’s affidavit filed on 25 May 2010 (with the exception of paragraph 12 which was not read).  I also received the affidavit of Cvetanka Jankulovska made on 8 February 2010, to which is attached a transcript of the hearings conducted by the Tribunal on 28 August 2009 and 19 November 2009.  I also received the affidavit of Dr Anthony Dinnen, to which is annexed his opinion concerning the mental health of the applicant.  Dr Dinnen was cross‑examined on his affidavit.

3. I also have before me a Notice to Admit Facts filed on 12 April 2010 and a Notice Disputing Facts filed on 27 April 2010.  I received as an exhibit[1] the letter of referral of the applicant to Dr Dinnen from the applicant’s solicitor dated 26 February 2010. 

   [1] Exhibit R1

Submissions

1. The applicant submits that she was denied a real and meaningful opportunity to participate in the hearing and have her evidence fairly assessed in the light of her diagnosed medical impairments.  In particular, she submits:

   ·In Minister for Immigration v SCAR[2] the primary judge found as a fact that the applicant was not in a fit state to represent himself when the Tribunal considered his application. The Tribunal was ignorant of the applicant’s disability.  The Full Court stated at [37]:

   [2] (2003) 128 FCR 553; [2003] FCAFC 126

   On the other hand it is also clear that s.425 of the Act imposes an objective requirement on the Tribunal.  The statutory obligation on the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat the obligation.

   ·In Minister for Immigration v SZNVW[3] the applicant was not entirely unfit to attend the Tribunal’s hearing.  The applicant also had relied upon his medical condition, and presented evidence of it, when appearing before the Tribunal as a reason why he had memory difficulties.  The reasoning in SCAR was not challenged in the appeal[4].

   [3] [2010] FCAFC 41

   [4] see [31] per Keane CJ, [37] per Emmett J

   ·Keane CJ[5] distinguished SCAR on the basis that the applicant did seek to rely upon his psychological problems as a possible explanation for what might be thought to be unsatisfactory aspects of his evidence[6].  His Honour observed that:

   [5] with whom Emmett J agreed at [49]

   [6] at [17]-[18]

   nor was this a case where the integrity of the hearing under s.425 was subverted by want of appreciation on the part of the Tribunal that the respondent’s presentation of his case might have been adversely affected by an impaired mental state of which the Tribunal was oblivious

   ·Perram J confirmed that the authorities do not necessarily require total unfitness[7]. His Honour observed that where errors made by a translator were material to an adverse conclusion drawn by the Tribunal then a failure to afford a meaningful invitation within the meaning of s.425 occurs.

   ·In the present case, unlike the case in SZNVW the applicant did not volunteer her medical condition to the Tribunal as a reason why her evidence may be deficient.  The applicant’s evidence is that she was ignorant of the fact that she suffered a psychological condition.

   ·The applicant’s symptoms of PTSD are confirmed as present at the hearings before the Tribunal and the delegate by the contemporaneous advices by Trinh Ha and Hayem Haddad.

   ·It is clear that her condition was material to an adverse conclusion drawn by the Tribunal as the Tribunal’s credit assessment was in part influenced by the applicant’s vagueness concerning the date of her abduction and release. Dr Dinnen’s evidence is that the interrogation by the Tribunal as to the specific detail of her experience would have increased her levels of anxiety and apprehension to the extent that it could have interfered with her ability to give a proper account of herself.

   ·The reasoning of Scarlett FM in SZNCR v Minister for Immigration[8]  is apposite:

   124 Had the Tribunal been aware of the applicant’s mental state, it may have formed different conclusions about his credibility. It was the Tribunal’s adverse view of the applicant’s credibility that was the primary reason for its decision to affirm the delegate’s decision.

   125 In my view the applicant was denied a proper opportunity to give evidence and present arguments due to his mental state and, consequently, the requirements of s 425 of the Act have not been complied with. For this reason, and for the failure to consider relevant material as set out in [87] above, I find that jurisdictional error has been made out.

   [7] at [85]

   [8] [2010] FMCA 45

2. The second ground is an assertion that the Tribunal constructively failed to exercise its jurisdiction as it failed to take into account relevant material, namely the report of My Trinh Ha dated 10 June 2009. In relation to the second ground, the applicant acknowledges that while the Minister’s Department had received two reports bearing upon the applicant’s mental health, only the first was sent to the Tribunal. The second report was received by the Department after it sent its file to the Tribunal. While the failure to forward the second report to the Tribunal was a breach of the continuing obligation of disclosure in s.418(3) of the Migration Act 1958 (Cth) (“the Migration Act”), the applicant concedes that a breach of that section does not vitiate a decision by the Tribunal[9]. 

   [9] See WAGP v Minister for Immigration [2006] FCAFC 103 at [51]

3. The applicant also relies upon the decision of the Full Federal Court in SZLPO v Minister for Immigration[10], in particular at [16], [92] and [99].  The applicant submits that the Tribunal was required to take the medical report before it into account as it bore on the applicant’s credibility.  The applicant concedes that the report available to the Tribunal did not contain a diagnosis of PTSD but nevertheless submits that there was sufficient before the Tribunal to require the Tribunal to take that information into account in assessing credibility and, because of the silence of the Tribunal in its reasons in relation to the report, I should draw an inference that the report was overlooked.[11]

   [10] (2009) 255 ALR 407

   [11] SZMSD v Minister for Immigration [2009 FMCA 96 at [28] and SZMOI v Minister for Immigration [2008] FMCA 1507 at [17]-[25].

4. These points were expanded upon in additional written submissions filed by the applicant on 28 June 2010.  The applicant submits that if the Tribunal was in fact aware of the report, and had taken its contents into account, then some explanation of how the report affected the Tribunal’s assessment of the applicant and the applicant’s capacity to participate in the hearing would be expected.  The applicant further submits that the situation is analogous to that in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[12] where the Minister was found to have failed to take into account submissions on detriment prepared by the respondent in that case and which were in the possession of the Minister’s Department.

   [12] [1986] HCA 40; (1986) 162 CLR 24

5. The applicant distinguishes this case from SZNZX v Minister for Immigration[13] as in that case it was not in contention that the letter from the psychologist was relevant to the Tribunal’s assessment of the applicant’s credibility or capacity to participate in the hearing of that case.  The applicant also notes that in SZNZX the Tribunal expressly stated that it had considered the Department’s file, whereas in this case the Tribunal simply stated that it had the Departmental file before it (CB 136 at [19]). 

   [13] [2010] FCA 127

6. In relation to the first ground, the Minister submits that:

   ·The applicant bears the burden of proof that she was unfit to give evidence before the Tribunal: NAMJ v Minister for Immigration (2003) 76 ALD 56 (FCA/Branson J) at [69]. In light of NAMJ at [55] and Minister for Immigrationv SZNVW [2010] FCAFC 41 at [15], [22], [33-34] per Keane CJ and [48] per Emmett J, for there to be a breach of s.425 the applicant would need to prove that she was unable before the Tribunal to give evidence, present arguments or make rational decisions concerning the conduct of her case. There is no such evidence, and the transcripts of the two Tribunal hearings suggest to the contrary. Even if Dr Dinnen’s opinion that the applicant was suffering from PTSD be accepted (and this opinion should be given little weight because it appears to be based on an assumption that the applicant’s claims of past harm in Pakistan are true, contrary to the Tribunal’s findings cf NAMJ at [48]), this does not establish that the applicant was unfit to give evidence in the sense required by s.425. As pointed out in Minister for Immigrationv SGLB (2004) 207 ALR 12 (HCA) at [19] per Gleeson CJ, [126] per Callinan J it is common for litigants in general, and those appearing before the Tribunal in particular, to suffer some psychological disorder; see similarly WAJR v Minister for Immigration (2004) 204 ALR 624 (FCA/French J) at [43]. It cannot have been intended by Parliament that this would stop hearings before the Tribunal proceeding: NAMJ at [52]; SZNVW at [33].

   ·The applicant’s submissions at paragraph 32 rely upon SZNCR vMinister for Immigration [2010] FMCA 45 (Scarlett FM) at [124-125]. The proposition there apparently stated, that it is sufficient for there to be non-compliance with s.425 that the Tribunal is unaware of the applicant’s mental state and that it may have formed a different view of the applicant’s credit if it had been aware of her mental state, is essentially the same as that put by Smith FM in SZNVW and rejected: see SZNVW at [12]. It follows that SZNCR is clearly wrong and should not be followed.  Alternatively, the Court may wish to await the outcome of the Minister’s appeal in SZNCR. 

1. In relation to the second ground, the Minister submits that the Court cannot draw an inference that the document relied on by the applicant was overlooked from the silence of the Tribunal in its reasons concerning that document[14]. The Minister submits that at [19] the Tribunal should be taken to have taken into account that document, together with everything else on the Department’s file referred to the Tribunal.  The Minister submits that I should draw an inference that the report was not referred to by the Tribunal because the Tribunal did not consider it of significance.  Further, the Minister draws attention to the distinction between overlooking claims and overlooking particular items of evidence.

   [14] See SZNZX v Minister for Immigration [2010] FMCA 127

2. The Minister filed additional written submissions on the second ground on 5 July 2010.  Relevantly, the Minister submits:

   Ground 2 claims that the Tribunal “failed to adequately consider or take into account” the report at CB 89.  This is a Psychological Assessment by a Psychologist acting for STARTTS based apparently on one telephone conversation with the Applicant of between half an hour and forty five minutes (see the Applicant’s Affidavit paras 4 and 5) on 10 June 2009.  It was given to the Red Cross, not to the Applicant.  It records that the Applicant reports and displays a range of symptoms associated with anxiety, is currently not capable of undertaking paid employment, and is in need of whatever financial assistance can be provided to her.

   The report was not mentioned by the Tribunal.  This is not surprising as it was of little if any relevance.  In its terms the report concerned the Applicant’s ability to undertake paid employment, not her ability to give evidence before the Tribunal.  For the same reasons as given in SZNZX v MIAC [2010] FMCA 127 (Raphael FM) at [5-6], affirmed on appeal in SZNZX v MIAC [2010] FCA 469 (Marshall J) at [10] concerning an almost identically worded report, the preferable inference is that it was not mentioned by the Tribunal because it was not considered to be of significance, not that it was overlooked. 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 MIMIA [2005] FCA 1389 (Lindgren J) at [58] and cases there cited; MIMIA v Applicants S194 of 2002 [2003] FCAFC 273 at [21-23]; SZDXZ v MIAC [2008] FCAFC 109 at [22-32].

   SZNZX is relevantly factually indistinguishable from this case.  The Applicant’s Submissions … claim otherwise because in SZNZX no submission had been made to the court that the report was relevant to the Tribunal’s assessment of the applicant’s credit or capacity to participate in the hearing, and because in that case the Tribunal said that it had considered the Departmental file.  The first point is wrong: in SZNZX the applicant’s claim was that the Tribunal did not consider the report and that it was probative of his claims, so it was said to be relevant to an assessment of his credit.  The second point is just a verbal quibble: the Tribunal in this case at CB 126 [19] said it had before it the Departmental file, and it would be a perverse reading to deduce from this minor difference in language that the Tribunal here was saying anything different to the Tribunal in SZNZX.  It follows that the preferable inference in this case, as in SZNZX, was that the report was not overlooked.

   Moreover even if the contrary inference is drawn that the report was overlooked, this would be no more than the failure to have regard to an item of evidence, not to a claim by the Applicant, and so would not amount to jurisdictional error: SZNZX [2010] FMCA 127 at [7-9], aff’d SZNZX [2010] FCA 469 at [10]. That only the Tribunal overlooking a claim, as opposed to an item of evidence, will amount to jurisdictional error was recently reaffirmed in SZNPG v MIAC [2010] FCAFC 51 at [27-28] per North and Lander JJ.

   As SZNZX is factually indistinguishable and binding ground two must fail.

   That is not to deny that in certain factual situations there may be a need for the Tribunal to give explicit consideration to psychological evidence before it.  Whether such explicit consideration must be given will depend on the facts, including the nature of the evidence (such as whether it directly concerns an applicant’s fitness to appear before the Tribunal), whether it is relied upon by the applicant, and whether the applicant displays symptoms at the hearing that would put the Tribunal on notice that his or her fitness to give evidence should be considered.  In a suitable case the Tribunal’s failure to consider such evidence could amount to a failure to respond to a “substantial, clearly articulated argument relying upon established facts”, or to fail to have regard to a claim that clearly arose on the material before the Tribunal, albeit unarticulated by the Applicant: see NABE v MIMA (No 2) (2004) 144 FCR 1 (FC). However there can be no general rule that psychological evidence before the Tribunal must be explicitly considered by it in every case: any such principle would be contrary to the cases mentioned in paras 3, 4 and 5 above.

   The cases mentioned in the Applicant’s Submissions … do not suggest that psychological evidence must be considered in every case by the Tribunal. SZKHD v MIAC [2008] FCA 112 (Collier J) at [28] said that in that case “justice to the appellant” required that a particular psychologist report that was before the Tribunal be given “proper consideration”. It is unclear what recognised ground of jurisdictional error within Craig v South Australia (1995) 184 CLR 163 at 179 and MIMA v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ, was thereby found by Her Honour. Certainly Her Honour does not purport to lay down any general principle that explicit consideration of psychological evidence must be engaged in by the Tribunal in all cases. SZMOI v MIAC [2008] FMCA 1507 (Driver FM) at [24-25] followed SZKHD, and found a jurisdictional error in the Tribunal failing to consider psychological evidence in the context of whether an applicant was fit to give evidence.  SZMOI suffers, with respect, from the same difficulty as SZKHD: it does not identify any recognised jurisdictional error committed by the Tribunal.  In any case, SZMOI cannot be authority that the Tribunal must consider whether an applicant is fit to give evidence whenever there is some psychological evidence before the Tribunal. Given there is no competency requirement in the Migration Act 1958 (SGLB v MIMA (2004) 207 ALR 12 (HCA) at [45] per Gummow and Hayne JJ), an applicant’s competence to give evidence cannot be a relevant consideration in every case before the Tribunal. Moreover the psychologist report in SZMOI and that in SZNZX seem almost identically worded (compare SZMOI at [16] and SZNZX [2010] FMCA 127 at [3]), and yet in SZNZX no error was found when, unlike in SZMOI, the report was not referred to by the Tribunal at all.  SZMOI must therefore be regarded as overtaken by the binding authority of SZNZX.

   While in this case the Applicant’s fitness is a jurisdictional fact for the Court to consider, given it is raised in ground one of the Further Amended Application, it would be absurd if the Court found that the Applicant was fit to give evidence to the Tribunal (ie ground one fails), but nevertheless remitted the matter to the Tribunal to consider this very issue.  Further, while psychological evidence may in a suitable case be sufficiently corroborative of an applicant’s case as to require explicit consideration, this is not the case here, for the same reasons as given in SZNZX, SZNMJ v MIAC [2009] FCA 1345 (Cowdroy J) at [45] and SZNOC v MIAC [2010] 149 (Bennett J) at [10].  Finally, while SZNMJ and SZNOC were cases where the Tribunal did consider whether an applicant was fit to give evidence, neither case suggested that the Tribunal was obliged to do so whenever there was some psychological evidence before the Tribunal.  Any such suggestion would be contrary to SGLB at [45]. Rather the appropriate test is as set out in para 7 above, recognising that there may be circumstances where such consideration is necessary, but no general rule to this effect. However there was nothing in the circumstances of this case to suggest that the Tribunal was obliged to [explicitly] consider the report at CB 89 within the principles in NABE (No 2).

Reasoning

Ground 1

1. The applicant contends that the Tribunal failed to comply with s.425 of the Migration Act in that she was denied a “real and meaningful” opportunity to participate in the hearing she was afforded and to have her evidence fairly assessed by the Tribunal in the light of her diagnosed mental impairments. I accept from the evidence of Dr Dinnen that the applicant suffers from PTSD. His opinion is based not only upon the applicant’s history (importantly the facts supporting the claim for protection which the Tribunal rejected as a fabrication) but also his own observations informed by his professional experience over many years. He was unshaken in his evidence on cross-examination. It is not for this Court to determine whether the applicant’s claims are true or false. Dr Dinnen was entitled to form his opinion based upon the applicant’s history as put to him and I accept his opinion. I also have regard to the observations of Perram J in SZNVW at [61]-[62]. Prior to the diagnosis by Dr Dinnen the applicant was not aware that she suffered from PTSD (or indeed any mental illness). She had twice been referred for assessment by the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors in connection with a claim by the applicant for assistance under the Red Cross Asylum Seeker Assistance Scheme but those reports were provided to the Red Cross and the Department, not to the applicant.

2. In Minister for Immigration v SGLB[15] the High Court considered the Tribunal’s obligation to afford procedural fairness to an applicant with PTSD, having regard to the general law fair hearing rule.  At [19] Gleeson CJ said:

   Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the Tribunal, apprehending that the respondent might be disadvantaged by "memory or other difficulties", of its own motion, and with the respondent's agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The Tribunal was not then obliged to embark upon an open-ended investigation of the respondent's psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage. It was not suggested in the letter of 30 July that anything the respondent said at the hearing of 26 June, or in his later affidavit, was unreliable. Two things were suggested. The first was that, if the respondent was suffering from PTSD, that would explain the inconsistencies in his earlier information. The Tribunal was willing to accept that, and not hold those inconsistencies against him. The second, which was rejected, and is not now pursued, is that a further assessment might have provided evidence that he had in fact been seriously harmed before he came to Australia.

   [15] (2004) 207 ALR 12

3. At [45] Gummow and Hayne JJ said:

   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)

4. At [88] Kirby J (dissenting) commented on the role of procedural fairness under the general law in relation to tribunal decisions in the following terms:

   The role of procedural fairness: In the decisions of this Court, a difference emerges concerning the role of the common law principles of natural justice (procedural fairness) as they relate to the conduct of administrators, exercising powers given to them by statute. One view that has been expressed is that the common law principles continue to operate, save insofar as the legislature has explicitly or clearly abolished them. This view is consonant with the rule, followed since the earliest days of this Court, that common law principles expressing basic civil rights are not taken to be abolished by statute unless the legislature clearly and validly so provides. The other view is that the rules of procedural fairness, found in the common law, may be implied in the statutory grant of power to the administrator. This is explained in terms of an implication that the statutory power is conditioned on observance of the principles of natural justice (procedural fairness). It is presumed that the Parliament, in providing for a "hearing" and in requiring the administrator to reach a "decision", envisages that the "hearing" will be carried out with justice to both sides and will result in a "decision" achieved by due process. (footnotes omitted)

5. At [114] Callinan J noted the account taken by the Tribunal of the PTSD suffered by the applicant in that case:

   In its reasons for that decision, the Tribunal dealt with the issue of inconsistency in the respondent's earlier claims in a way that was highly favourable to him by treating him as if he had in fact been suffering from PTSD and that the presence of this condition was the reason for the inconsistencies.

   “[The respondent] was aged seven when the war with Iraq commenced, and was aged sixteen when it ended (in July 1988). I have considered the plausibility of his claims that his family continued to be subjected to harm because of a political opinion imputed to them arising from their membership of the Hamidi tribe and their family links with its late leader. It is the case that [the respondent's] evidence has changed over time as to his family's, and his own, problems in Iran after the end of the war in 1988. The Tribunal is asked to accept, in brief, that he may be suffering from Post Traumatic Stress Disorder, and that this has led to his not revealing all his claims from the outset, and has also given rise to some confusion in his description of particular events. I have not agreed to his adviser's request that he be assessed by a psychologist in order to confirm this. That is because I consider it highly likely that [the respondent] is suffering from PTSD, as indicated by his repeated incidents of serious self-harm while in detention. I therefore propose to accept that his ability to give evidence clearly has almost certainly been influenced by this. As to whether his current condition is a consequence of Convention-related events in Iran, (rather than during his period of over two years in detention in Australia, for example), it is for the Tribunal to make findings on the events which the [respondent] claims led to his decision to leave Iran.

   ... Thus, rather than rely on the claims made by [the respondent] on various occasions before [the] hearing [on 26 June 2002], I propose to treat the oral evidence given by him at the hearing, coupled with the content of the written submissions from his adviser (30 July 2002) and himself (30 July 2002) after the hearing, as an accurate reflection of the claims he wishes to make."

6. His Honour also stated at [125]-[126]:

   It is a powerful consideration that in the Tribunal proceeding, neither the respondent nor his advisers contended that he was unable to give evidence or take part in the proceedings. The contrary was the case. He indicated that he wished to do so and he gave sensible evidence for a substantial portion of the hearing and provided an affidavit afterwards. The Tribunal did not err in permitting the respondent to take part in the proceedings in the way that it did. The Federal Court fell into error in reaching a different conclusion.

   This should also be said about stressed witnesses. They are by no means rarely encountered in courts and tribunals. Legal and inquisitorial proceedings can be very stressful occasions even for people who have no direct interest in their outcome. That a witness or a party may be stressed will rarely of itself constitute sufficient reason to postpone a hearing. Whether a party or a witness is so stressed as to be unable to give a reasonable account of himself or herself, or whether further inquiries as to the capacity of a person to do so should be made, is pre-eminently a matter for the court or the tribunal to decide, and courts and tribunals by experience are generally well equipped to do so.

7. The common law fair hearing rule is now excluded by s.422B of the Migration Act. The impact of that section has vexed the courts since its introduction. It would seem from s.422B(3) that Parliament, while intending to free the Tribunal from the strictures of the general law, did not intend to give the Tribunal licence to act unfairly or unjustly. There has been uncertainty about the extent to which general law concepts of procedural fairness are reflected in the procedural code now governing the Tribunal.

8. The contention of procedural unfairness argued for by the applicant in SGLB must now be put, as it is here, as an asserted breach of s.425 of the Migration Act. In SZNVW at [14] and [24]-[29] Keane CJ discussed examples of circumstances in which s.425 has been found to have been breached by reason of some procedural unfairness in connection with a hearing. On the other hand Perram J at [73]-[83] pointed out that s.425 focuses on the hearing invitation rather than the hearing itself. His Honour also emphasised that, in considering whether s.425 has been breached the important question is not whether the applicant has been treated fairly but, rather, whether the process contemplated by s.425 has been “subverted” (or to put it another way – disabled). That process will be disabled if an applicant, through no fault of his or her own cannot participate in it either at all or in some determinative respect.

9. It is not disputed that s.425 requires an invitation to a hearing which is more than an empty shell or idle gesture. The Full Federal Court in SCAR accepted that s.425 might be breached where the hearing opportunity afforded was not “real and meaningful” because of the unfitness of the applicant, even if the Tribunal was ignorant of the applicant’s disability. Conversely, in SZNVW the Full Federal Court drew a clear distinction between an applicant who is unfit to participate in a hearing and an applicant who, by reason of a disability or medical condition, was placed in a position where he or she might not have presented their case as well as they had hoped.  In my view, having regard to the above authorities, the question for determination in relation to the first ground is whether the applicant was able to participate in the hearing before the Tribunal at all or in relation to the assessment of issues which were determinative of the outcome.  While it is obviously desirable that the Tribunal provide a hearing opportunity which is as supportive and non threatening as possible, consistently with the Tribunal’s obligation to investigate an applicant’s claims, I do not accept that a hearing opportunity ceases to be real and meaningful simply because an applicant who suffers from a disability suffers stress or confusion because of that disability.  The presiding member can observe an applicant suffering stress or confusion and, if necessary, provide an adjournment, or at least take that stress and confusion into account when reaching a decision.

1. In SZNCR v Minister for Immigration[16] Scarlett FM referred to the decision of Smith FM in SZIWY v Minister for Immigration[17] and followed that decision at [122]-[125].  The decision in SZNCR is subject to appeal in the Federal Court.  I cannot reconcile the decisions of this Court in SZIWY and SZNCR with the decision of the Full Federal Court in SZNVW.  The issue here is whether the applicant was prevented from participating in the Tribunal hearing (or at least a determinative aspect of it) not whether the Tribunal might have given more sympathetic consideration to the applicant’s claims and evidence because of the applicant’s disability.  In my view, it does not matter in this connection whether or not the Tribunal is actually aware of the condition.  I decline to follow the decisions of this Court in SZNCR and SZIWY.

   [16] [2010] FMCA 45

   [17] [2007] FMCA 1641

2. In the present case the Tribunal was at least constructively aware, from the report of My Trinh Ha (CB 89) that the applicant displayed a range of symptoms associated with anxiety.  These included poor and disturbed sleep, interrupted by nightmares about her past, and an increased level of intrusive thoughts which impacted on her ability to concentrate and focus.  The transcript of the first Tribunal hearing discloses that the Tribunal was informed of difficulties the applicant had had in understanding a Punjabi interpreter and asked her to identify any difficulty she may have with the interpreter at the hearing and to tell the member if she wanted her to repeat or rephrase anything (T5 at 25).  Questions were put to the applicant by the presiding member and her answers have a staccato quality to them, but the applicant was able to answer most of the questions.  There are several instances where the applicant, through the interpreter, said that she did not understand what she was being asked and the member explained herself.  The Tribunal’s questioning was insistent and at times indicative of disbelief but the transcript of the first hearing does not disclose an inability by the applicant to respond to the questions put to her.  When the first hearing was adjourned it does not appear obvious from the transcript that the applicant was distressed.  The presiding member said (T51 at 40):

   Yes.  Okay.  I’m going to leave it there for today, and I’m going to bring you in on another day to continue, okay?  So my case officers will let you know when I would like you to next come in, okay?  All right?  Then we’ll continue with the rest of your claims on the next occasion.  Okay?  Is that all right?  Yeah.

3. It was only after the presiding member said that the applicant would need to come back on another occasion for a second hearing that it appears that the applicant showed signs of distress:

   [Tribunal]: Yeah because you get very upset and you probably get tired

   APP: I’m not tired, I’m just very upset

4. At the resumed hearing the presiding member again asked the applicant to let her know if she had problems understanding the interpreter and the applicant agreed.  On occasion she asked the presiding member to repeat or explain a question.  At page 5 of the transcript at line 41 the applicant told the presiding member that she was “a little bit upset”.  She nevertheless was able to continue with the hearing and appeared to answer questions succinctly and confidently.  There are some other instances of apparent distress on the part of the applicant.  The transcript of the second hearing includes:

   At T6 line 15     Because the incident there, I’ve been very upset and that’s why I couldn’t leave my home and I forget things now.

   At T14 line 8, the Tribunal asked whether either the applicant or the interpreter was “okay” (it is unclear).  At T38 line 3 the applicant says:

   But I only want to say that I’m afraid to return to Pakistan because my life is in danger there, and I’ve been so worried and upset that some time I don’t even know what to say and what I have said and how to say it.

5. The presiding member questioned the applicant about her claimed abduction and the applicant answered.  At page 23 of the transcript at line 45 the applicant responded to a question from the presiding member about the colour of the car in which her abductors took her by saying that she could not remember because she was “so shaken up”.  The presiding member put to the applicant doubts she had about the veracity of her claims and the applicant responded.  The applicant insisted that she was telling the truth (T35 at 29).  The Tribunal put to the applicant information the Tribunal considered was required to be disclosed and invited oral comments from the applicant.  She responded.  At page 38 of the transcript at line 15 the applicant sought additional time to produce further documents.  She sought a period of months and the Tribunal agreed to a period of four weeks.

6. I accept the opinion of Dr Dinnen that in the light of the applicant’s PTSD the applicant may have been inhibited by the manner of questioning pursued by the presiding member which was accentuated by short, sharp sentences and, at times, expressions of disbelief.  It is possible that in a more sympathetic and supportive environment (such as that provided by Dr Dinnen) the applicant may have been able to give a more persuasive account of her experiences.  However, under cross-examination, Dr Dinnen retreated somewhat from his written opinion that the interrogation of the applicant by the presiding member may have interfered with her ability to properly give an account of herself.  He conceded that the transcript shows that the applicant was coherent and responsive to questions.  He conceded that the applicant showed less confusion than his overview suggested. 

7. The fact is that the hearing process of the Tribunal was not disabled by the applicant’s condition.  She attended two hearings over the course of approximately five hours and was able to participate over the entire period.  She answered almost all of the questions put to her by the presiding member.  Dr Dinnen conceded, under cross-examination, that he was able to interview the applicant for approximately 75 minutes and for much of that time the applicant was able to converse in English.  The applicant’s condition did not prevent her from explaining her circumstances to Dr Dinnen.  Indeed, in his report Dr Dinnen describes the applicant’s efforts to cooperate and provide relevant information as “impressive and consistent with a woman of superior ability, intelligence and character”.  The available evidence satisfies me that the applicant was similarly not prevented from explaining her circumstances to the Tribunal at the two hearings conducted by it, although she may have been able to articulate a more persuasive case if she had been able to tell her story more comprehensively through the use of open ended questions, rather than questions which probed for inconsistency, implausibility, or inability to answer.  The Tribunal’s approach might have been more sympathetic but as a general principle the manner in which the Tribunal chooses to conduct its hearings is a matter for it.

8. I find that the first ground of review is not established.

Ground 2

1. On 12 April 2010 the applicant filed a Notice to Admit Facts directed to the Minister.  The Notice sought the Minister’s admission that the Tribunal had possession of, or was otherwise aware of the contents of, the STARTTS assessment dated 10 June 2009 (CB 89) prior to the making of its decision on 7 January 2010.  The Notice also sought the same admission in relation to the second STARTTS assessment dated 6 November 2009.  In a Notice Disputing Facts filed on 27 April 2010 the Minister admitted only that the first STARTTS assessment was received by the Asylum Seekers Assistance Scheme of the Minister’s Department on or about 10 June 2009 and that a copy of the Departmental file relating to the applicant was transferred to the Tribunal on or about 13 July 2009.  The Minister thus declined to admit that the Tribunal had possession or was otherwise aware of the contents of that STARTTS assessment prior to the making of its decision.  The Minister did not admit any of the facts set out in the second paragraph of the Notice to Admit Facts and the applicant now concedes that the second STARTTS assessment was not provided by the Minister’s Department to the Tribunal, and thus the Tribunal was not aware of it.  There is, therefore, a factual issue to resolve whether the Tribunal had possession of or was otherwise aware of the contents of the first STARTTS assessment before it made its decision and, depending of the outcome of that question, a legal issue of the consequence in circumstances where the Tribunal made no mention of the STARTTS assessment either at the Tribunal hearing or in its reasons for decision.

2. The applicant invites me to infer from the available evidence that the Tribunal had possession of the first STARTTS assessment and was at least constructively aware of its contents but fell into jurisdictional error by failing to take it into account in making its decision.  Counsel for the Minister, in oral submissions, invited me to infer that the Tribunal not only had possession of the first STARTTS assessment and took it into account but also saw no need to refer to it at the Tribunal hearing or in its reasons because it did not bear on an issue of significance.  I have difficulty with that submission because it is at odds with the Minister’s Notice Disputing Facts.  It is unsatisfactory for the Minister to dispute the fact that the assessment was in the possession of the Tribunal and that the Tribunal was aware of it before making its decision and then ask the Court to infer precisely that. 

3. The fact that the first STARTTS assessment appears in the court book, which reproduces the Tribunal file, satisfies me that that document was included in the Departmental file that was forwarded to the Tribunal.  The Tribunal therefore had possession of it.  The court book had been filed a month before the filing of the Minister’s Notice Disputing Facts and the Minister should have admitted the fact of possession of the document by the Tribunal.  The Tribunal was at least constructively aware of the first STARTTS assessment because it had regard to the Departmental file.  That is confirmed at [19] of the Tribunal’s reasons (CB 136).  The next question is, did the Tribunal take the STARTTS assessment into account and, if it did not, what is the legal consequence?  In SZMOI I dealt with similar circumstances.  In that case it was established that the Tribunal was aware of the report because there was a reference to it (albeit fleeting) in its reasons.  The Tribunal said in that case that the report was “not determinative of the Tribunal’s consideration of the applicant’s claims”.  At [18] of my decision I said:

   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.  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.  (footnote omitted)

4. In the present case, as in SZMOI, the Minister submits that the report was not relevant to an assessment of the applicant’s claims because it related to the applicant’s capacity to work only.  The applicant contended in that case (as here) that the report needed to be taken into account in assessing the applicant’s credibility.  In SZMOI at [19]-[24] I dealt with the competing submissions in the following terms:

   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.

   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.

   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.  (footnote omitted)

   …

   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.

   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.

5. I concluded that the Tribunal fell into error by failing to take into account relevant material bearing on the assessment of the applicant’s credibility.  There was no appeal against my judgment.  There is also support for the proposition that where evidence of a mental or psychological disability is available to the Tribunal, the Tribunal should engage in an active intellectual process in dealing with that evidence[18]. 

   [18] SZKHD v Minister for Immigration [2008] FCA 112. See also SZLPO at [92]

6. The psychological assessment in the present case (CB 89) relevantly states as follows:

   … I conducted an assessment on 10/06/2009.  [The applicant] reports and displays a range of symptoms associated with anxiety.  These symptoms include: excessive worries and fears regarding her future and the safety and well being of her family.  She reports that she has poor and disturbed sleep (interrupted by nightmares about her past) and an increased level of intrusive thoughts which impacts her ability to concentrate and focus.  [The applicant] also indicates that she is also highly fatigued and has a range of somatic symptoms including headaches.

   As a consequence of this symptomatic presentation, [the applicant] is currently not capable of undertaking paid employment.  She is therefore in need of whatever financial assistance can be provided to her.  Should you require further details please do not hesitate to contact me.

   Kind regards,

   My Trinh Ha

   Psychologist

7. The report told the Tribunal two things.  The first was that as at the date of the report (10 June 2009) the applicant was not capable of undertaking paid employment because of an anxiety condition.  Secondly, the applicant suffered disturbed sleep, with nightmares about her past, and an increased level of intrusive thoughts which impacted her ability to concentrate and focus.  I would have thought it uncontentious that a medical report indicating that an applicant suffers from a psychological disability sufficiently serious to prevent them working and which adversely impacts on the applicant’s ability to concentrate and focus was a relevant matter for the Tribunal to take into account in considering the credibility of the applicant’s evidence.  The issue was not whether the report corroborated the applicant’s claims (it was far too general for that and was not linked to a discussion of the applicant’s history) but, rather, the issue was whether the applicant’s condition might be an explanation for inconsistent, vague or unconvincing evidence or an inability to recall factual matters of detail.  That was why it bore on an assessment of the applicant’s credibility. 

8. There is a suggestion in the transcript that the presiding member was aware of the medical report because at the end of the first hearing (T52, line 4) the presiding member said:

   You get very upset and you probably get tired.

9. The presiding member may well have been referring to My Trinh Ha’s assessment that the applicant is “highly fatigued” and exhibits symptoms including “excessive worries and fears”.  Although at that time the applicant said that she was not tired but was distressed it appears that the condition of the applicant was a reason (perhaps not the only reason) for the adjournment of the first hearing.  The applicant also exhibited some distress at the second hearing.  In the circumstances, it is odd that the Tribunal would say nothing about the applicant’s condition in its reasons.  It may have been that the presiding member considered that the applicant’s condition was sufficiently accommodated by the adjournment of the first hearing and that nothing further needed to be said or done to deal with the report of My Trinh Ha.  I infer from the Tribunal’s silence about the medical report that that was the case. 

1. In making that finding I have taken into account the decision of Raphael FM in SZNZX v Minister for Immigration[19].  In that case his Honour declined to find that the Tribunal overlooked a similar psychologist’s letter to that in the present case.  His Honour noted that the Tribunal’s silence in relation to the letter did not necessarily mean that it had been overlooked.  His Honour found that the letter was not corroborative evidence of the applicant’s claims and, in those circumstances, the Tribunal was entitled to say nothing about it.  At [7]-[8] his Honour said:

   [19] [2010] FMCA 127

   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 Applicant WAEE 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.

2. His Honour’s decision was affirmed on appeal[20].  I accept that, as was the case in SZNZX, the psychological assessment was not corroborative of any of the applicant’s factual claims.  It therefore did not need to be taken into account in the consideration of those factual claims.  Where I differ from Raphael FM is that, in the present case, the psychological assessment bore on the issue of the applicant’s credibility, based upon the presentation of her evidence at the hearing.  The question is whether that credibility assessment was simply a finding of fact (with the consequence that overlooking material bearing upon that factual finding is not a jurisdictional error) or was there evidence which, if accepted, might have led the Tribunal to find that a well-founded fear of persecution had been established?

   [20] SZNZX v Minister for Immigration [2010] FCA 469 at [10]

3. In Minister for Immigration v Yusuf[21] at [87]-[89] the High Court said:

   The essence of Ms Yusuf's complaint was that the Tribunal made no finding about whether one of the three principal incidents upon which she relied as revealing past acts of persecution was capable of giving rise to a well-founded fear of persecution. She had said that there was an invasion of her house by members of the Hawiye clan during which her husband (and perhaps, she) had been attacked and her husband had been obliged to flee. The Tribunal mentioned an attack on Ms Yusuf's husband in its s 430 statement but did not, in terms, describe a house invasion.

   The house invasion was said by Ms Yusuf to be an important incident demonstrating that she had a well-founded fear of persecution for a Convention reason - membership of the particular race or social group constituted by her Abaskul clan. In her evidence to the Tribunal Ms Yusuf also spoke of two other incidents. In this Court it was submitted that the Tribunal had dealt with those two other incidents but that it had not dealt with the house invasion.

   For the reasons given earlier, even if it were said that whether this invasion occurred in the manner, and with the consequences, described by Ms Yusuf was a material question of fact, a failure to make a finding about it would not amount to a breach of s.430, for the house invasion was not material to the decision the Tribunal actually made. Nor, in the particular circumstances of this case, does any failure by the Tribunal to make a finding about this matter in its s.430 statement reveal any error of law by the Tribunal or any failure to take account of a relevant consideration.

   [21] (2001) 206 CLR 323

4. In the present case the Tribunal found at [84] that the applicant lacked credibility and that her Convention related claims were not accepted.  In reaching that conclusion, the Tribunal took into account a number of matters which led the Tribunal to the view that the applicant was not a reliable witness in relation to certain material aspects of her claims.  Relevantly, the applicant’s evidence relating to the alleged abduction was of concern to the Tribunal.  The applicant was unable to say on which day of the week she was allegedly abducted, except that it did not occur on a Sunday.  She was unable to provide any dates relating to the alleged abduction and release.  Her evidence relating to her husband’s response to her disappearance was also of concern. 

5. There is no doubt that the credibility of the applicant’s claims, including in relation to her claim of abduction (which was critical) was in issue and the applicant was made aware of that at the Tribunal hearing.  Obviously, the Tribunal considered that issue of credibility. The Tribunal did not overlook any element or integer of the applicant’s factual claims.  Further, the defects in the applicant’s evidence were questions of fact for the Tribunal to determine.  However, the important issue here is not whether there were problems in the applicant’s evidence.  Plainly, there were.  The important issue is whether the explanation for these problems was that the applicant had fabricated her claims.  That called for an assessment of the applicant’s credibility which in this case was determinative of the outcome.

6. The question then is whether the Tribunal overlooked a relevant document in considering the applicant’s credibility.  In my view, the issue of credibility went to the heart of the applicant’s claims and the question of whether the applicant satisfied the criteria for the grant of a protection visa.  It was not simply a factual finding.  There is support for the proposition that where a decision turns on an assessment of credibility, overlooking a relevant document bearing on the assessment of credibility will be a jurisdictional error.  In VAAD v Minister for Immigration[22] at [77]-[79] the Full Federal Court said:

   [22] [2005] FCAFC 117

   These comments make clear that whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40, where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence and, as the Tribunal’s own comments show, that initial error was not corrected by the Tribunal’s subsequent consideration of the UNP Letter and the UNP Translation. On the contrary, the initial error tainted the later consideration of this evidence and compounded the Tribunal’s error. The Tribunal’s conclusion that the UNP Letter was fabricated was greatly influenced by the Tribunal’s mistake in thinking that the UNP Letter had not been provided to the Delegate or been sent to the Tribunal only after the Tribunal’s letter of 5 September 2001, the s 424A letter. The fact that, as originally provided, the UNP Letter was in Singhalese language and no translation was provided does not alter the fact that the Tribunal erred. Nor does it detract from the significance of the Tribunal’s error; see X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 at [52]- [53].

   It may well be that, had the error not occurred, the Tribunal would still have rejected the first appellant’s claim to have been preselected as a candidate for the UNP. It is clear that the Tribunal’s assessment of the first and second appellants’ credibility was also based on other factors. The Tribunal found that the first and second appellants had ‘embarked upon an elaborate process of fabricating evidence’ to support their claims. The Federal Magistrate referred to the Tribunal’s assessment of the first appellant at [23] of his reasons:

   The presiding member had numerous serious credibility concerns about the applicant’s wife’s claims. In particular, the presiding member formed the view that the applicant wife had fabricated claims of threats from the [JVP] ...that it would harm the applicant. In addition the presiding member found the applicant wife to be an unimpressive witness who did not display the knowledge of the UNP that she would expect from a UNP member with a high political profile.

   However, an assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka. As Gleeson CJ commented in Aala at [4]:

   ...Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive...

   Kirby J expressed a similar view in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 (‘NAFF v MIMIA’) at [81]:

   ...[D]ecision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

   While it is impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different if the error about the UNP Letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.

7. The Tribunal was required to have regard to all relevant material bearing upon the issue of credibility in this case as the review turned on that credibility assessment.  In SZMOI it was apparent from the Tribunal’s reasons that the Tribunal had misunderstood the significance of the STARTTS assessment and considered it only as a corroborative document (which it was not).  In the present case, the Tribunal made no reference to the STARTTS assessment at all in its reasons.  However, I am unable to infer from that silence that the Tribunal failed to take the STARTTS assessment into account.  The Tribunal was aware from the two hearings that the applicant at times became distressed and the transcript reference referred to above at [45], while tenuous, may be a link to a consideration of the STARTTS report.  The presiding member presumably concluded, as I have, that the applicant was fit to give evidence and that the hearing process was not disabled by the applicant’s condition.  In those circumstances, there may have been a question whether, if ground 2 had succeeded, relief should be refused in the exercise of discretion because of the failure of ground 1.  That said, I do not accept the Minister’s submission that it would be absurd to remit a case for re-hearing in such circumstances.  The assessment of an applicant’s fitness to give evidence is a separate issue from an assessment of the credibility of an applicant’s evidence.  An applicant suffering a condition such as PTSD may be fit to give evidence but the condition may explain flaws in that evidence and need to be taken into account on a credibility assessment.  It might, in a particular case, also be corroborative of an applicant’s claims: MZYHS v Minister for Immigration & Anor [2010] FMCA 417

8. It is, in my view, unfortunate that the Tribunal made no reference to the STARTTS report in its reasons and it would have been far better if the Tribunal had made some reference to it.  However, I am unable to conclude, on the state of the evidence, that the report was overlooked in considering the applicant’s credibility and, on that basis, I find that the second ground has not been established. 

9. I conclude that the Tribunal decision is free from jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.  I will so order.

10. I will hear the parties as to costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  15 July 2010