SZOUA v Minister for Immigration

[2011] FMCA 291

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUA v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 291

MIGRATION – Review of decision of Refugee Review Tribunal – applicant’s capacity to present case before the Tribunal and the Court – request for impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425, 425A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; (2006) 81 ALJR 515
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

Applicant: SZOUA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2492 of 2010

Judgment of: Nicholls FM

Hearing date: 27 April 2011

Date of Last Submission: 27 April 2011

Delivered at: Sydney

Delivered on: 3 May 2011

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms L Clegg

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 17 November 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2492 of 2010

SZOUA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 17 November 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 November 2010, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the Russian Federation (“Russia”).  He arrived in Australia on 3 November 2009 as a visitor.  He applied for a protection visa on 5 November 2009.  He was assisted by a registered migration agent.  (Court Book – “CB” – CB 1 to CB 66 with annexures.)

2. The applicant’s claim to protection, to which he provided elaboration when interviewed by the delegate on 11 February 2010, was that he would suffer discrimination if he were to return to Russia because, while undertaking induction for compulsory military service, he had received an adverse psychological assessment which was recorded in a military service book.  He would be required to show this book to prospective employers.  He received an exemption from further military service.

The Delegate

1. The delegate gave “little weight” to the claim of prospective discrimination by employers as country information before it showed no general stigma or mistreatment of the many tens of thousands who are exempted from service for mental or other health reasons (CB 75 to CB 76).  Nor had the applicant faced any serious mistreatment as a result of his medical exemption such as to suggest similar treatment in the future.

2. The delegate noted that the applicant had expressed a generalised fear of Russian authorities.  However, he had not articulated any specific concerns that he might hold in this regard, nor any relevant past experiences.

3. The delegate was not satisfied that the applicant faced a real chance of persecutory harm if he were to return to Russia and refused the application (CB 68 to CB 76).

The Tribunal

1. The applicant applied for review to the Tribunal on 22 March 2010 (CB 77 to CB 80).

2. He was invited to attend a hearing before the Tribunal, scheduled for 3 May 2010, by letter dated 31 March 2010 (CB 84 to CB 85).  The letter was sent to the last address provided to the Tribunal for the purposes of receiving correspondence (CB 82 to CB 84).  A copy of the letter was subsequently sent to another address for service notified to the Tribunal some time after the despatch of the first letter (CB 86 to CB 89 and CB 93).

3. The applicant attended at the hearing and gave evidence (CB 94 to CB 95).  The only account of what occurred before the Court is that contained in the Tribunal’s decision record ([29] at CB 139 to [54] at CB 145).  A number of other claims emerged at the hearing.

4. The Tribunal also had before it a psychological assessment of the applicant by a clinical psychologist (CB 114 and [21] at CB 137) and other documents provided by the applicant (CB 107 to CB 112 and CB 114 to CB 117, and see also [30] to [32] at CB 139).  The Tribunal also discussed other aspects of the applicant’s claims and evidence with him.  The focus of that discussion was plainly to ascertain whether the applicant’s claims were such as to satisfy it that the applicant had a well-founded fear of persecution for any of the Convention reasons.

5. The Tribunal considered the psychologist’s report in the context of whether the applicant had the capacity to participate in the Tribunal hearing.  The Tribunal noted that, while the applicant perceived conspiracies against him, he was nonetheless lucid and responded appropriately to questions.  The Tribunal considered that the applicant was able to effectively participate at the hearing ([55] to [56] at CB 145).  I should just note that there was no statement by the psychologist to indicate that he could not.

6. The Tribunal found that the applicant’s own evidence differed in significant respects from the evidence of the applicant’s mother, father and an American friend, Mr Frisbie ([60] at CB 146).

7. The Tribunal did not accept certain aspects of the applicant’s factual account and claims.  It rejected the claim that he was perceived as a spy or that he was labelled as a homosexual after his return from Canada.  Nor did the Tribunal accept that he was mistreated at the military induction centre.  The Tribunal did not accept that the exemption he received from military service was because of some conspiracy on the part of the Russian authorities.

8. The Tribunal accepted that the military exemption was granted for reason of an honest evaluation of the applicant’s psychological condition, a conclusion reinforced by the fact that the clinical psychologist in Australia had independently reached the same opinion ([63] at CB 147).

9. While the Tribunal accepted that, as a result of these psychological problems, he had had difficulty in maintaining steady employment in Russia, it did not accept that there was a real chance he would be discriminated against in employment in such a way, or extent, as to amount to persecution for a Convention reason if he were to return ([64] to [65] at CB 147).

10. While the Tribunal accepted that the applicant, as with many people, did not like the current situation in Russia, it did not accept on the evidence that there was real chance he would be persecuted for reason of political or imputed political opinion if he were to return to Russia ([66] at CB 147).

11. The Tribunal affirmed the delegate’s decision ([67] at CB 147).

Before the Court

1. The application before the Court asks that this Court set aside the “orders” of the “RRT and Department of Immigration”.

2. To the extent that this implies that the application seeks judicial review of the delegate’s decision, this Court lacks jurisdiction to do so. The delegate’s decision is a “primary decision” as defined in the Act (s.476(4)). Not only was it reviewable on the merits pursuant to Part 7 of the Act, it was in fact so reviewed by the Tribunal.

3. The applicant appeared in person before the Court.  He was assisted by an interpreter in the Russian language.  Ms L Clegg of counsel appeared for the first respondent.

4. Before the Court the applicant displayed some behaviour which, coupled with the psychologist’s report to the Tribunal, and indeed the Tribunal’s own consideration of the issue, gave me pause to consider whether the applicant lacked the capacity to prosecute his case before the Court.

5. The applicant displayed some agitation and irritation.  At one point he submitted that he had a “feeling” that the Tribunal had contacted the Russian military authorities.  The implication appeared to be that this involved some impropriety on the part of the Tribunal.  He explained that he could not “prove it”, but this “feeling” emerged after reading the Minister’s written submissions filed in these proceedings.  The applicant was unable to point to any probative evidence to support this allegation.

6. But for current purposes, the applicant displayed some comparatively greater than usual focus and preoccupation with the Minister’s submissions.  For example, he spent some periods during the hearing staring at the submissions.  His behaviour could be described as displaying some greater than usual fixation (to echo the psychologist’s observation).

7. It is the case that, in matters involving challenges to Tribunal decisions, the Minister’s written submissions provide the opportunity, especially for an unrepresented applicant, to know the case against them before the Court.

8. Some degree of focus by an applicant on the submissions therefore is not only desirable but necessary in making out their case before the Court.  In the current case however, the applicant’s focus appeared disproportionate.

9. In this context, the applicant took the Court to [6] of the Minister’s written submissions and noted the use of the word “deserter”.  It was not quite clear what the applicant’s concern was in this regard.  At best it appeared that the applicant was seeking to understand why that word had been used.

10. The short answer is that at that part of the submissions the Minister was plainly seeking to reproduce the substance of the claims to protection made by the applicant in his protection visa application.  In his application the applicant relevantly wrote (at CB 18.2):

    “…In draft office officer call me deserter…”.

11. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 (“SGLB”), Gleeson CJ said (at [19]):

    “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…”.

12. At [126] in the same case, Callinan J said in part:

    “… 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.”

13. In the current case, it is not a question of whether a further inquiry needs to be made by the Court.  In one sense, that “inquiry” has already been made with the provision of the psychologist’s report contained in the Court Book (CB 113).  Rather, the question is whether, given the above, the applicant had the capacity to give a reasonable account of himself.

14. In this, a distinction needs to be drawn between the capacity to do so and the actual giving of that account.  Quite often applicants challenging Tribunal decisions do not give a good account for many reasons other than for reason of some psychological incapacity.

15. In the current case, despite some curious behaviour, I am satisfied that the applicant had the capacity to understand the nature of these proceedings and the case made against him by the Minister, and to present his concerns and arguments.

16. That his concerns about the Tribunal’s decision were largely matters of challenging factual findings made by the Tribunal do not reveal any lack of capacity.  In this sense, the applicant has this in common with many unrepresented applicants who appear before this Court in matters of this type.

17. Nor is it necessarily any indicator of a lack of capacity that the applicant would seek to understand the Tribunal’s adverse finding in terms of some consistency with the claims that he made.  This would involve some view of cooperation between authorities (that is the Russian military and the Tribunal) to act in ways which he perceives to be detrimental to him.

18. In any event, even if this were as a result of the same “intense suspicion” observed by the psychologist (CB 113.5), this would, without anything further, not lead to a conclusion that the applicant lacked capacity as that term is understood and applied to proceedings of this type.

Consideration

1. The applicant’s grounds as pleaded do not assert legal, let alone jurisdictional error on the part of the Tribunal.  At best, they seek to challenge factual findings made by the Tribunal, and assert that the Tribunal should have found that he met the definition of “refugee”.

2. In all, the applicant seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568). As such, the “grounds” do not reveal error on the part of the Tribunal such that the Court should consider granting the relief sought.

3. As Ms Clegg submitted, nothing that the applicant said to the Court took his cause any further.  Nor can I otherwise discern jurisdictional error in the Tribunal’s decision.

4. The Tribunal invited the applicant to a hearing pursuant to s.425 of the Act. On the material before the Court, the Tribunal complied with all the relevant statutory and regulatory requirements in this invitation. (Sections 425, 425A, 441A(4), 441C(4) and reg.4.35D(b) of the Migration Regulations 1994 (Cth).)

5. On the Tribunal’s unchallenged account of the hearing, it is clear that the Tribunal exposed all of the issues determinative of the review to the applicant and gave him an opportunity to respond (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; (2006) 81 ALJR 515).

6. Nor can I see any breach of s.424A(1). The Tribunal’s adverse view of the applicant’s evidence, the inconsistencies in what he put before the Tribunal, is not “information” for the purposes of s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190).

7. The applicant’s evidence to it, what he put to the Tribunal in documentary form, all fall within the exemption contained in s.424A(3)(b) from the obligation in s.424A(1).

8. The Tribunal’s assessment of the applicant’s capacity to participate in the hearing reveals no error.  Its conclusion was based on probative evidence.  It noted the psychologist’s report and accepted that the applicant suffered from some psychiatric symptoms ([55] at CB 145), but found these symptoms did not affect his capacity to participate in the hearing.  The applicant’s fitness in this regard, and the Tribunal’s obligation to provide a fair hearing, were clearly acknowledged and dealt with by the Tribunal (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [18] to [22] per Keane CJ and at [45], [48] to [49] per Emmett J. See also SGLB at [19] per Gleeson CJ).

9. The Tribunal addressed all aspects of the applicant’s claims as they ultimately emerged before it.  The Tribunal’s findings were all reasonably open to it on what was before it, and it gave cogent reasons (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703).

10. For the sake of completeness, I should note that the applicant’s assertion before the Court that he had submitted a large volume of documents to the Tribunal to “prove” his case does not lead to revealing any legal error on the part of the Tribunal.  The Tribunal plainly dealt with the documents submitted.  In particular, it was the differences between the evidence contained in these documents from the applicant’s mother, father, friend and his own evidence that, in part, led to the rejection of critical aspects of his claims.  That the Tribunal was not persuaded to the applicant’s cause even in light of this “proof” does not, on its own, reveal legal error.

11. The applicant plainly does not agree with the outcome of the Tribunal’s consideration.  However, it is the case that having made findings of fact reasonably open to it to make, and based on those findings, the Tribunal was unable to reach the requisite level of satisfaction as statutorily required such that the visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225). Without more, this does not reveal jurisdictional error on the part of the Tribunal.

Conclusion

1. In all, no jurisdictional error is revealed in the Tribunal’s decision.  For the applicant to succeed such error must, at least, be present.  In the circumstances therefore the application is to be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  3 May 2011