SZQNJ v Minister for Immigration
[2012] FMCA 815
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQNJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 815 |
| MIGRATION – Recommendation of Independent Merits Reviewer – whether applicant denied a fair opportunity to present his case because he was suffering from mental impairment – whether reviewer erred in failing to put various findings to the applicant for comment – whether reviewer otherwise denied the applicant procedural fairness. |
| Migration Act 1958 (Cth), ss.420, 425 |
| Jones v Dunkel and Another (1959) 101 CLR 298; [1959] HCA 8 Meadows and Another v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; [1998] FCA 1706 Minister for Immigration and Citizenship v MZYHS and Another (2011) 119 ALD 534; [2011] FCA 53 Minister for Immigration and Citizenship v MZYLE (No 2) [2011] FCA 1467 Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 Minister for Immigration and Citizenship v SZNSP and Another (2010) 184 FCR 485; [2010] FCAFC 50 Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30 NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56; [2003] FCA 983 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZOUM v Minister for Immigration and Citizenship [2011] FCA 595 WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; [2003] FCA 188 WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 |
| Applicant: | SZQNJ |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1766 of 2011 |
| Judgment of: | Barnes FM |
| Hearing dates: | 14 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Robison |
| Solicitors for the Applicant: | Parramatta Community Justice Clinic |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1766 of 2011
| SZQNJ |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a declaration and an injunction in relation to the first respondent in respect of a recommendation by the second respondent (the reviewer or IMR) of 19 July 2011 that the applicant not be recognised as a person to whom Australia owes protection obligations.
The applicant, a citizen of Sri Lanka, arrived on Christmas Island on 10 December 2009 and applied for a refugee status assessment (RSA). The RSA determined that he was not a refugee on 13 March 2010. He sought independent merits review. The initial reviewer determined that he was not a refugee on 27 August 2010. Following the decision of the High Court in Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41, the applicant was afforded a further independent merits review. It is that review that is the subject of these proceedings.
The reviewer interviewed the applicant on 14 February 2011 and 2 March 2011. The transcripts of these interviews are before the court as annexures to the affidavit of Michaela Byers affirmed on 18 November 2011.
The applicant claimed to fear persecution from the Sri Lankan authorities because of his Tamil race and imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE). The reviewer summarised the applicant’s core claims. The applicant claimed that he was regarded by the Karuna group, the Army and the Criminal Investigation Department (CID) as having connections to the LTTE. He also claimed that “during his detention in Malaysia [in 2009] he and others were threatened with retribution by a Sri Lankan official who [knew] his identity”. Further, he claimed that he was on a “black-list of LTTE supporters” and that he would be “detained and persecuted either on arrival at Colombo Airport or shortly afterwards”.
In his arrival interview the applicant had claimed that he was suspected by the LTTE of supporting the government because his cousin was in the pro-government Eelam People’s Democratic Party (EPDP). However he also claimed that the LTTE wanted him to join them and continued to harass him, as a result of which he left the country.
After his claim was rejected by the RSA, in his adviser’s submission of 1 April 2010 it was claimed that in July 2003 the applicant had tried to run away from the LTTE, but he was caught and forced to undertake 15 days training because his cousin was involved with the EPDP and the LTTE believed that the applicant supported that group and hence the government. It was also claimed that “subsequently the Karuna group told the Army that [the applicant] was involved with the LTTE” and that the applicant believed he was “now on a list of LTTE members and [was] still sought by the Army”. The applicant provided a number of explanations for these late claims, including that “he thought it would harm his case if he said that he had been involved with the LTTE” and that he feared placing information on the record that could harm his family. At the first IMR interview he also claimed that he had worked for the LTTE until 1998 by supplying goods and that “he had been asked to train with [them] in 2003 but refused”.
The IMR’s decision
In his findings and reasons the second reviewer stated that he did not find the applicant to be a credible witness. The reviewer found that the applicant’s evidence contained “numerous internal contradictions, inconsistencies and implausibilities which he was not able to explain to [the reviewer’s] satisfaction”. Considered cumulatively these matters caused the reviewer to reject the credibility of the applicant’s claims.
Having regard to independent country information, the reviewer did not accept that:
… since the end of the conflict [in Sri Lanka], the mere fact of being a young Tamil male from the east of Sri Lanka would for that reason alone … cause a person to be suspected of having been an LTTE member or supporter.
The reviewer addressed the applicant’s claim that he was regarded by the Karuna group, the Army and the CID as having had connections to the LTTE, but found “several inconsistencies in his successive accounts of his experiences with the LTTE”, detailed in the reasons for decision. The reviewer also had regard to the fact that the applicant first made the claim that the LTTE took him by force in his adviser’s submission of 1 April 2010, after rejection by the RSA and had provided contradictory explanations for the variations in his claims. The reviewer did not accept any of the explanations for such late claims on the basis that he would have expected the applicant “to have offered a consistent explanation for the late production of these claims, especially as they together ma[de] up the essence of one of his core overall claims”.
The reviewer was prepared to accept that in 1997 to 1998, while the applicant was at school, the LTTE had “obliged him to buy and deliver goods for them” but did not accept that the authorities ever became aware of this. The reviewer noted that the applicant had made no such claim. The IMR did not accept that this would form the basis of a well-founded fear of persecution in the foreseeable future if the applicant returned to Sri Lanka.
The reviewer did not accept that five years later (in 2003) the LTTE had any interest in the applicant joining them or that he was taken by force and obliged to train or work for the LTTE. The IMR found the claim that the LTTE would want the applicant to join them because they thought he supported the government to be implausible. The reviewer was of the view that had the LTTE believed this “they would have regarded him as an enemy”. Nor did the reviewer accept that the LTTE wanted to use the applicant because they thought he could move around anywhere.
The reviewer addressed the applicant’s claim that “after his departure for Malaysia, several LTTE cadres came to his house and threatened his family”. His evidence at the second IMR interview was that while he was working for the LTTE “he did many things for them, and so they realized that he knew a lot about their internal activities” and that they threatened his family “because they were targeting him to join them”. The reviewer found it implausible that in 2003 or later the LTTE would have considered that because the applicant had made purchases for them five years earlier and more recently had allegedly trained with them for 15 days, he knew anything “of any current operational value” about their activities. The reviewer was also of the view that had the LTTE been of this view “in light of [the applicant’s] claimed numerous refusals to join them it [was] more likely that they would have wanted to silence him rather than to continue trying to recruit him”. The IMR further considered it implausible that despite the applicant having left Sri Lanka, the LTTE was still trying to get him to join them.
In this context, the IMR referred to the applicant’s claim at the first IMR interview that the LTTE knew his cousin was in the EPDP and that this was the reason he had been forced to work for them. The reviewer expressed concern at the lack of logic in the reasoning of such a claim. He found that the applicant’s evidence to the effect that he did not want to join the EPDP and that his village had been under LTTE control so he supported the LTTE “contradict[ed] his claim to have been forced to work for the LTTE and to have resisted their overtures to him over a period of time”.
The reviewer did not accept the applicant’s claim that LTTE cadres “visited his house and threatened his family”, used threats to “elicit information about his cousin in the EPDP” or harassed him. Nor did it accept that if the applicant went to Kalmuani, the purpose of this trip “had anything to do with trying to escape the LTTE” or, more generally, that the LTTE had “any interest” in him before or after he left Sri Lanka for Malaysia. Further, the reviewer did not accept that the LTTE harassed his mother as claimed. The reviewer noted that when the applicant was asked why the LTTE would harass his mother, given that they had been out of action since the end of hostilities in May 2009, the applicant “contradicted himself, stating that he had meant that his mother was being harassed by Karuna group and CID”. The reviewer did not accept this claim.
The reviewer also had regard to anomalies and implausibilities in aspects of the applicant’s evidence in relation to his claim that the Karuna group, the Army and the CID regarded him as having connections to the LTTE. The reviewer found that his claim that LTTE cadres who had tried to recruit him into the LTTE subsequently “came after him after they joined the Karuna group – which is anti-LTTE – because he had escaped them” was implausible. The IMR was of the view that such persons would have “looked positively” on the applicant having escaped the LTTE “as they had done themselves”.
In light of the fact that the applicant did not mention having problems with the CID until the first IMR interview, and also that he had not demurred when the first reviewer put to him that CID checks on him while he was travelling appeared to be routine checks carried out on travellers by police at check points, rather than indicating a special interest in him, the reviewer did not accept that the CID had or have any special interest in the applicant.
The reviewer expressed concern about the applicant’s new claim at the first IMR interview that in June 2003 the Army had “overrun the area in which he lived” in light of inconsistencies in his evidence and contrary country information to the effect that the Army could not have overrun his area in 2003 as the cease-fire was in force. Having found that the CID “had no specific interest” in the applicant, the reviewer did not accept that the CID told the Army anything about him. In making this finding, the reviewer had regard to inconsistency in the applicant’s evidence about whether he went to Malaysia because of problems with the LTTE (as he claimed in his entry interview and written statement) or because of problems with the LTTE and the Army (as he first claimed at the IMR interview).
The reviewer also had regard to the fact that the applicant had given different reasons for the Army’s claimed adverse interest in him and the fact that many of these claims “were made late in the evidence-giving process”. The reviewer was of the view that the applicant’s evidence suggested “a pattern of embellishment which cas[t] overwhelming doubt on the credibility of his claims” and that he had “invented these claims as he went along in order to try to fortify his case”. The reviewer did not accept that “Army people” observed the applicant helping out at any LTTE-organised festival, that he was “threatened by a soldier at a check point” or “briefly detained by the Army in 1996 and 1997, tied up and badly beaten” as claimed or that the Army or the CID had any “adverse interest” in him.
Nor did the reviewer accept that the Karuna group was angry the applicant had escaped from the LTTE, that they believed he helped the LTTE or wanted to catch, question and kill him for any reason. The reviewer did not accept that the Karuna group informed the Army that the applicant had supported the LTTE, that they had visited his parents and threatened him or that they had any adverse interest in him.
The reviewer then considered the applicant’s claim to the effect that during his detention in Malaysia he and others were threatened with retribution by a Sri Lankan official who knew his identity. The reviewer had regard to the fact that this claim, like several others, was “made late in the progress of the [applicant’s] case” (at the first IMR review after the negative assessment by the RSA). The reviewer considered but rejected the applicant’s explanation for not having mentioned such claims earlier.
The IMR did not accept that a Sri Lankan diplomat threatened the applicant and other detainees having regard to a number of issues, including the reviewer’s adverse view of the claimant’s general credibility, advice from UNHCR that it was not aware of any threats by the official in question and the implausibility of the claim that “the official would make threats if he wanted to persuade the detainees to return to Sri Lanka”. Nor did the reviewer accept the applicant’s claim that the official believed all the detainees to be LTTE members, noting that this was not consistent with the official wanting the applicant to return to Sri Lanka and that the applicant had not confirmed this aspect of his claims at interview.
The reviewer found that an email from the former Malaysia Human Rights Commissioner about the visit of officials to a detention centre in Malaysia made no mention of hearing of any threats by any of the Sri Lankan officials and provided no support for the applicant’s claims.
The reviewer did not accept that the Sri Lankan official took or was given the detainee’s details or that Malaysian immigration officials “checked them naked to see whether they had injuries” because the Sri Lankan official had said the detainees were LTTE members and had sustained injuries. The reviewer did not “consider it plausible that Malaysian officials would conclude that visible scars or other marks on any of the detainees [were necessarily] evidence that they were LTTE members”.
The reviewer did not accept that there was a real chance that the applicant would suffer persecution “as a consequence” of the visit of a Sri Lankan High Commission official to the detention centre in Malaysia if he returned to Sri Lanka.
The IMR summarised that he did not accept that the applicant was under any suspicion by the Army, the CID or the Karuna group of having connections to the LTTE, that during his detention in Malaysia he and others were “threatened with retribution” by a Sri Lankan official who knew his identity, or that he was on any “blacklist” in Sri Lanka of LTTE supporters. The IMR did not accept the applicant’s claim that he would be detained and persecuted either on or shortly after arrival at Colombo airport.
The reviewer continued that, based on these findings, he gave “little weight” to two police reports, both of which were based on information provided by the applicant’s parents and aunt which the IMR found would have been substantively based on information received from the applicant. The reviewer considered that this information was “an invention intended to help [the applicant’s] case”. Similarly, he gave “little weight” to the affidavit of a Mrs Maheswary on the basis that “her speculation that her grandson’s disappearance [wa]s attributable to his connection to the [applicant was] also a well-intended invention” based on information received from the applicant. For the same reason the reviewer gave little weight to the applicant’s mother’s supporting affidavit and letter. The IMR accepted that the adviser’s understanding was that a letter signed by the local bishop had been drafted using information provided by the applicant’s family and was of the view that the provision of this information for inclusion in the Bishop’s letter had “the same goal as the police reports”. The reviewer also took into account contradictory claims and inconsistent evidence from the applicant about the hypothetical priest’s “acquisition of first-hand knowledge about his case”.
The reviewer had regard to evidence of a report from a clinical psychologist and the diagnosis that the applicant was experiencing symptoms of Post-Traumatic Stress Disorder (PTSD), but observed that “the experiences and symptoms which led to this diagnosis were, almost in their entirety, reported to the psychologist by [the applicant]”. In light of the adverse findings about the applicant’s credibility the IMR did not accept that the claims set out in the psychologist’s report “in any way corroborate[d] the applicant’s claims”.
The reviewer stated that in considering the applicant’s oral evidence, he had been “mindful of his likely state of mind at the time”. However, given his several adverse findings about the applicant’s credibility, the IMR did not accept that the inconsistencies and implausibilities in the applicant’s evidence could “be ascribed to any aspects of his state of mind”. The reviewer found that if the applicant was suffering from symptoms of PTSD, it was for reasons that had nothing to do with “his having suffered, or being at risk of suffering in the reasonably foreseeable future, Convention-related persecution”.
The reviewer concluded that on the evidence before him the applicant did not have a well-founded fear of being persecuted in Sri Lanka for reasons of race, imputed political opinion, or for any other Convention reason now or in the reasonably foreseeable future and that he did not satisfy the definition of a refugee in the Convention.
These proceedings
The applicant sought review by application filed in this court on 12 August 2011.
On the day this matter was first listed for hearing, the applicant sought and obtained an adjournment in order to put further affidavit evidence before the court from Paula Farrugia, a psychologist, who had sworn an earlier affidavit. The affidavit of Ms Farrugia ultimately relied on in these proceedings was sworn on 9 March 2012. Ms Farrugia was cross-examined.
The applicant now relies on a further amended application filed after the hearing with leave of the court. The grounds in the further amended application were addressed in submissions by both parties at the hearing. Counsel for the applicant confirmed that grounds two and five in the amended application filed on 25 October 2011 were not pressed.
Whether the applicant was denied a fair opportunity to present his case to the IMR because of mental impairment
Ground one in the further amended application is that:
The applicant was denied a fair opportunity to present his case to the Independent Merits Reviewer because he was suffering from mental impairment when he was interviewed.
The applicant submitted that, based on the evidence of Ms Farrugia, it was apparent that the applicant was unfit to give evidence at the IMR interview in the sense considered in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 and Minister for Immigration and Citizenship v SZNCR [2011] FCA 369. It was acknowledged that there was authority to the effect that whether the applicant was unfit to give evidence, present arguments and answer questions before the Refugee Review Tribunal was a factual matter for the court and that normally medical evidence specifically dealing with fitness before the reviewer would be necessary to make such a case (see WAHU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 890 at [34]-[40]). There was no suggestion that a different approach would be warranted in this case in relation to the claim that there was a denial of a fair opportunity to present a case at the IMR interview on the basis of “mental impairment”.
The IMR interviews (conducted by the second reviewer) occurred on 14 February 2011 and 2 March 2011 leading to a recommendation made on 19 July 2011.
The applicant relies on the evidence of Paula Farrugia, an educational and developmental psychologist, in support of this ground. Ms Farrugia examined the applicant on 28 August 2011 and 2 September 2011. She initially prepared a report on 8 October 2011. She updated that report on 4 March 2012 (although there is no suggestion that she had any further contact with the applicant).
In her initial report, Ms Farrugia diagnosed the applicant as currently (that is, at the time of her October 2011 report) suffering from a chronic major depressive disorder, as having symptoms consistent with that of PTSD and as experiencing episodic panic symptoms consistent with Panic Disorder. Ms Farrugia also concluded that psychometric assessment findings using standardised measures revealed that the applicant had cognitive difficulties, memory and processing-speed impairments.
Ms Farrugia expressed the “clinical opinion” that the applicant’s “overall psychological and cognitive condition, as found using standardised measures, will highly likely impact upon his memory and ability to present his evidence before the [IMR]”.
In her “Addendum” of 4 March 2012 Ms Farrugia addressed the Transcript of the IMR interview and concluded:
My clinical opinion following critical examination of the Transcript of Interview is that [the applicant’s] overall psychological condition and cognitive capacity highly likely had a considerable impact upon his memory and ability to present his evidence before the [IMR].
In the addendum Ms Farrugia elaborated on her opinion and sought to address the applicant’s performance and participation through the IMR interview process. She referred to what she described as strengths and weaknesses exhibited by the reviewer, some of which had suggested were likely to have “resulted in compromising [the applicant’s] ability to present his evidence”.
Counsel for the applicant submitted that there was no doubt that Ms Farrugia’s affidavit satisfied the requirements for expert evidence (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305), that Ms Farrugia had considered the applicant’s mental state at the time of the interview and considered the transcript of the interviews in conjunction with her clinical examination such that her evidence addressed the necessary issue of fitness during the hearing itself as opposed to fitness at some other time (see WAHU). It was contended on this basis that the proceedings before the IMR were a nullity (WAHU at [39]) as the applicant was unfit to give evidence in the sense described in SCAR. In particular, it was submitted that a perusal of the problems encountered by the applicant during the interview disclosed an inability on his part to give evidence, present arguments and answer questions (see SZNCR). It was also submitted that the reviewer was not in a position to give weight to what he may have considered to be the apparent mental state of the applicant at the time because he was not appraised of the psychological issues set out above.
The applicant submitted that Ms Farrugia had provided a comprehensive analysis as to the applicant’s ability to take part in the interview with the interviewer and that it flowed from these difficulties that the interview process was unfair.
Reference was made to what was said to be a comprehensive history taken by Ms Farrugia from the applicant over two examinations, including his history regarding torture and mistreatment in Sri Lanka, the fact he had told Ms Farrugia he had concentration and memory difficulties and what Ms Farrugia characterised as his allusion to “difficulties processing information and the need for additional time” in remarks such as “I sometimes need to think slowly and hard to explain. I can’t answer back straight away” (albeit she also observed that he “did not appear to display any marked impairment of cognition”) (see report at [8]).
Counsel for the applicant contended that it was relevant that Ms Farrugia had expressed the opinion that “in situations considered to be unfamiliar and/or stressful [the applicant] would experience severe cognitive challenges” and that even under “unharried and relaxed circumstances [he] would require more time than is considered reasonable in order to effectively process information prior to delivering a response”.
In addition, reliance was placed on Ms Farrugia’s view that in response to situations perceived by the applicant as “overwhelming”, for example when presenting evidence or during an interview, “non verbal behaviours that could be construed to be suspicious or dubious may likely be exhibited” and that such behaviours could “trigger” an assessor’s “preconceptions” and challenge his or her “objectivity regarding opinion and observations”, when in fact the presenting behaviours may simply be “reasonable responses to additional cognitive demands and elevated distress”.
The applicant’s submissions explained that at the request of the applicant’s solicitor Ms Farrugia had provided further detail about the relationship between the applicant’s mental health problems and his participation in the interview with the reviewer. Reliance was placed on the conclusion reached by Ms Farrugia in the addendum and her statement in respect of the applicant’s “capacity to actively participate” through the IMR process that she would “suggest” that:
… considerable quantities of cognitive resources and mental ‘space’, as it were, is taken up with management of intrusive and distressing thoughts and images associated with recollections of historical information. Therefore as a consequence merely residual cognitive resources are available for processing of everyday information, less than familiar information and the task at hand. I would speculate that more complex information processing fails ‘to make it to first base as it were’. (Emphasis in original).
Ms Farrugia expressed the opinion that the applicant’s performance and participation in the review process required consideration of several factors. She suggested that the “[e]motionally laden memories” of the applicant triggered by questioning at the interview would “overwhelm [his] working memory and efficient information processing”, leaving him with “fewer resources” to respond to the interviewer thereby “compromising delivery of his evidence”.
She referred to the applicant’s depression and PTSD symptoms and suggested that such symptoms “reduce the individual’s capacity to function adequately in situations perceived to be stressful and overwhelming such as interviews”. Ms Farrugia suggested that regard should also be had to the applicant’s “Low Average and Borderline” cognitive or intellectual capacity as a factor that meant that when presented with “lengthy verbose questions” his “capacity to present quality evidence” would be compromised.
As indicated Ms Farrugia focussed on what she characterised as “strengths and weaknesses of questions presentation and the likely impact upon the quality of evidence given by [the applicant].” After praising the sensitivity, consideration and courtesy demonstrated by the reviewer, his slow speech and comfort with frequent repetition, Ms Farrugia identified several “weaknesses” which she suggested “likely compromised [the applicant’s] presentation of his evidence”.
These concerns, which were canvassed in detail in the submissions of both parties, were expressed as follows:
The interview was of three hours duration. I would speculate that cognitive and emotional fatigue progressively deteriorated after the first 30-40 minutes. Notwithstanding the time taken for interpretation purpose Mr Gac’s questioning delivery was not conducive to optimal performance from [the applicant]. Namely:
(a) the predominating arguably lengthy time taken for Mr Gac to delivered his questions
(b) Mr Gac’s seemingly continuous use of the utterance “er” throughout questioning which slowed down his delivery of questions. For example, P 1 “Still what I’ll do briefly explain………..Interpreter identity”. I calculated 14 such utterances. On P 3 “Good, good…………….independent merits reviewer” (8 utterances). “Good that’s important…………..I’ll think about that (7 utterances). On P 6 “But why would they threaten……………..because you had gone” (6 utterances). “Again I don’t think you quite understand my question……………….seven years ago” (6 utterances). Smooth delivery of questions is compromised. The amount of time taken to deliver questions is considerably increased. Given my professional knowledge on questioning those people cognitively challenged I selected several of Mr Gac’s excerpts, timed these and timed my own informed delivery of the same questions. Mr Gac’s times considerably exceeded my own. This has potential implications for the reviewer, the interpreter and [the applicant]. Namely that [the applicant] experiences short term memory and concentration impairments. The time taken to deliver questions and the interpretation is critical to ensure adequate quality of response. My examination of questions construction and the time taken to deliver questions and the interpretation in my view likely compromised [the applicant’s] ability to present his evidence before the Independent Merits Reviewer.
(c) Mr Gac’s use of rhetorical questioning requires processing of complex information I consider to be, at times, beyond [the applicant’s] thinking processing capacity.
(d) Mr Gac’s instruction to [the applicant] “to cut your answers into short its” failed to be evident in much of questions construction. It is imperative that questions are concise, clear, unambiguous and “cut into short bits” to ensure [the applicant’s] understanding of the question and his delivery of honest and credible responses.
(e) In the event of failure to fully understand questioning [the applicant’s] information processing will likely capture key words and therefore responses could prove to be inadequate. For example P26 “My third question is that it doesn’t seem to make sense that he would threaten you if he wanted you to come back voluntarily”. I would speculate that [the applicant] captured the word question however no question was forthcoming. This occurred on more than one occasion throughout the transcript. I speculate this could be most confusing for [the applicant].
(f) Potentially confusing for [the applicant] is the tendency to ask multiple questions in one statement thereby undermining [the applicant’s] delivery of his evidence as illustrated at P 5 “You state that they tried…………………force to take you” In this instance three questions were asked. This then overwhelms [the applicant’s] thinking processing capacity.
Issue was also taken by Ms Farrugia with the reasons of the IMR, although counsel for the applicant did not submit that this part of her report demonstrated a lack of mental fitness on the part of the applicant to participate in the IMR interviews. In this context Ms Farrugia “wonder[ed]” whether the applicant’s cognitive abilities “were afforded due consideration” by the reviewer “with regard to his ability to fully participate in the particular interview process and adequately present his evidence to the reviewer”.
As indicated, Ms Farrugia concluded by expressing the opinion that the applicant’s “overall psychological condition and cognitive capacity highly likely had a considerable impact upon his memory and ability to present his evidence before the IMR”.
I accept the evidence of Ms Farrugia that at the time of her assessment in October 2011 (based on interviews in August and September 2011), the applicant was suffering from a chronic major depressive disorder, although I also note her reference to the applicant’s evidence about his experiences in the months after the IMR interviews. Ms Farrugia suggested that the applicant’s “chronic fragile mental state” had “intensified” after the IMR’s decision, in particular after he saw a television program about Sri Lanka’s killing fields. She also stated that her findings indicated “further mental decline the longer [the applicant] remain[ed] held indefinitely in immigration detention”.
I also accept that the applicant reported symptoms at the time of the assessment by Ms Farrugia consistent with those of panic disorder (which he stated he had suffered on more than one occasion in the month before the assessment). In addition, I accept that at the time of Ms Farrugia’s assessment the applicant reported symptoms consistent with that of PTSD. Further, there was evidence before the Tribunal, consisting of the STARTTS assessment, that the applicant was experiencing symptoms of PTSD prior to the interviews with the reviewer.
However the weight to be given to Ms Farrugia’s report in relation to the applicant’s mental condition at the time of the interviews with the reviewer, and whether he was unable to give evidence or take part in the proceedings, must be seen in light of the fact that the report was not contemporaneous and, as Ms Farrugia herself acknowledged in cross-examination, involved speculation on her part as to the likelihood that such conditions were in existence at the time of the interviews before the IMR. Nonetheless, even if all such psychological conditions existed at the time of the IMR interview, together with a low average and borderline range of overall cognitive function ability on the part of the applicant in relation to whom standardised testing revealed cognitive difficulties, memory and processing speed impairments, Ms Farrugia was not able to identify by reference to the transcripts of the interview, instances such as to satisfy the court that during the interview the applicant was unable to give evidence, present arguments and answer questions or that he was otherwise denied a fair opportunity to present his case because he was suffering from mental impairment at the time of the interview.
Insofar as Ms Farrugia expressed the opinion that the applicant “would require more time than is considered reasonable in order to effectively process information prior to delivering a response”, there is no indication from the transcript of the IMR interviews or any other material before the court that the slowness of any responses rendered the applicant unable to give evidence, that any such slowness was taken into account by the reviewer or, indeed, that any “non verbal behaviours that could be construed to be suspicious or dubious” were exhibited such as to establish his lack of fitness to participate in the interviews. There is no reference to any presenting behaviour on the part of the applicant having been taken into account in the reviewer’s decision. Nor is any apparent from the transcripts of the interviews relevant to this ground.
In the addendum to her report, Ms Farrugia stated that parts of the interview demonstrated several strengths and weaknesses of question presentation and sought to address the likely impact upon the quality of evidence given by the applicant. However as discussed further below, both in her report and in cross-examination (and also in re-examination) her focus was on how the reviewer might have, in effect, conducted a better interview, rather than on identifying evidence disclosing an inability on the part of the applicant to give evidence, present arguments and answer questions. The fact that the interview might have been conducted in a different way does not establish that the applicant was denied procedural fairness or a fair opportunity to present his case.
Ms Farrugia expressed concern that the reviewer’s questioning delivery was “not conducive to optimal performance from [the applicant]”. However when regard is had to the particular instances referred to by Ms Farrugia in the transcript, this concern does not establish a lack of fitness to give evidence on the part of the applicant. The matters that were said to have been likely to have compromised the applicant’s presentation of his evidence do not, when consideration is had to the transcript, go so far as to establish a lack of procedural fairness in the manner contended for by the applicant.
Before turning to those examples, I note that when asked to take the court to further examples within the transcript of the kinds of conduct referred to in the addendum to her report set out at [50] above, Ms Farrugia indicated that she did not have her notes but that in her report she had not recorded all of the examples. The hearing was adjourned in order to give Ms Farrugia an opportunity to identify other parts of the IMR interviews relevant to her assessment.
Ms Farrugia addressed the length of the interview. It was said to be of some three hours duration (although I note that in fact there were two separate interviews on different days). Ms Farrugia “speculat[ed]” that the applicant experienced “cognitive and emotional fatigue” and would have “progressively deteriorated after the first 30-40 minutes”. Her opinion was that the applicant’s concentration levels would be “lower than optimum” levels and that his evidence would be likely to be compromised. However she was unable to point to any respects in which this could be said to be apparent in either transcript. Moreover, in the first interview the reviewer offered the applicant a break if he wanted it (transcript first interview pp.12-13), but he responded that it was not necessary. No deterioration in the applicant’s responses thereafter is apparent from the transcript such as to go towards showing that he was unfit to attend or participate in the interview.
In her report Ms Farrugia also took issue with what she described as the “predominating arguably lengthy time taken” for the reviewer to deliver his questions. She suggested that this had to be seen together with the fact that the reviewer frequently used the utterance “er” throughout questioning, which slowed down his delivery of questions. Ms Farrugia had calculated some 14 occasions on which the reviewer said “er” on p.1 of the transcript and suggested that this compromised “[s]mooth delivery of questions” and increased the amount of time to ask questions in circumstances where, given that the applicant experienced short term memory and concentration impairments, this “likely compromised” his ability to present his evidence. However Ms Farrugia conceded in cross-examination that her submissions in this respect addressed only the English language questions by the reviewer and not the manner in which what was said by the reviewer was interpreted into Tamil. This aspect of Ms Farrugia’s report does not go towards establishing that the applicant was denied a fair opportunity to present his case.
When pressed in cross-examination to point to specific parts of the transcript where the applicant seem to have misunderstood the question because of the length of time taken to deliver it or the use of “er” in the reviewer’s question, Ms Farrugia referred to p.26 in the transcript of the first interview on the basis that the reviewer had indicated that he intended to ask a question, but there was no question forthcoming. She expressed the view that the applicant “more than likely would have focused on the word question” and in the absence of a question would have found this “very confusing”.
It emerged that this concern related to the fact that the reviewer had phrased a question (transcript p.26) as:
My third question is that it doesn’t seem to make sense that he [a Sri Lankan official] would threaten you if he wanted you to come back voluntarily.
The applicant responded (transcript p.26):
Because that time we were frightened that the Malaysia Government and the Sri Lankan government were negotiating to deport us. So we didn’t like that. We didn’t trust the Sri Lankan government. Because of that we were already lodge a complaint with the Human Rights Commission in Malaysia and also the UNHCR.
The reviewer then stated (transcript p.26):
I don’t think you quite got my question so I will repeat it. Just one second. You said the official threatened you but this doesn’t seem to make sense to me, because why would he threaten you if he wanted to persuade you to come back voluntarily?
The applicant replied:
This is because of he really told us to return to Sri Lanka we had already complaint to the human rights and as well the UNHCR what is happening to Tamils so he was because of that he knew all the stories and that we have complained and brought all these issues to the humans rights and the UNHCR. So that time he couldn’t do anything so he was trying to push us to return to Sri Lanka.
He went on to claim that the official told the “Malaysian immigration” that they were all LTTE.
Ms Farrugia’s suggestion that the IMR’s explanation contained “verbiage” and was not “as brief as possible”, does not establish unfitness on the part of the applicant. The reviewer asked the question briefly, but when it appeared not to be entirely understood by the applicant, clarified it and put it in “a longer form of words”, to which the applicant replied responsively. The fact that there may have been an opinion (as Ms Farrugia put it) “loaded in” with the IMR’s question is not such as to demonstrate that the applicant was unable to give evidence in response. It was for the reviewer to raise issues of concern with the applicant. When asked whether there were other examples in the transcript of this sort of questioning that could have been confusing for the applicant, Ms Farrugia referred generally to the comments in her report set at [50] out above. Ms Farrugia’s view that the IMR’s questioning could have been improved upon addresses what would be a perfect interview, rather than establishing unfitness on the part of the applicant.
Reference was also made by Ms Farrugia to the reviewer’s use of rhetorical questioning. This was said to require “processing of complex information” that Ms Farrugia considered to be “at times beyond [the applicant’s] thinking processing capacity”. However it is apparent from the transcripts that when the applicant’s answers appeared to be unclear or unresponsive the reviewer rephrased his questions and gave the applicant another opportunity to respond.
Ms Farrugia’s general criticism that the reviewer’s instruction to the applicant to “cut his answers into short bits” failed to be evident in much of the IMR’s question construction does not establish a lack of understanding on the part of the applicant of such questions or that the applicant was unable to answer questions. The suggestion that some of the questioning practices adopted by the reviewer may have compromised the applicant’s ability to answer questions as well as he could have done does not establish or go to show that the applicant was denied a fair opportunity to present his case because he was suffering from mental impairment at the time of the interview.
Ms Farrugia expressed the view that in the event of a failure to fully understand questioning, the applicant’s information processing would likely capture key words and therefore his responses could prove to be inadequate. Her evidence was that this occurred on more than one occasion throughout the interviews. Her subsequent evidence in this respect is discussed below. She speculated that this could be most confusing for the applicant. However the fact that the reviewer described a proposition he was clearly putting to the applicant for comment, to which the applicant responded, is not indicative of a lack of procedural fairness or any unfitness on the part of the applicant to present his case.
Ms Farrugia also suggested that the reviewer’s tendency to ask multiple questions in one statement was potentially confusing for the applicant. This was said to have undermined the applicant’s delivery of his evidence. Reliance was placed on part of the questioning by the reviewer early in the first interview in relation to the applicant’s claims about the LTTE. In particular, Ms Farrugia took issue with the following statement and question by the reviewer at transcript p.5:
You state that they tried repeatedly to make you join including in one case threatening to shoot you if you did not join and you state that you continued to be harassed by the LTTE. Do you understand? My question is if they were so keen to recruit you, why did not they keep letting your refuse without using force why didn’t they use force to take you?
It was suggested that several questions were asked at this point and that this overwhelmed the applicant’s “mental capacity”. However it is important to note that the reviewer’s questioning of the applicant about his claims about the LTTE commenced on p.4. The reviewer summarised the applicant’s claims, pointed out that there was a contradiction between his claims that the LTTE were trying to recruit people and that he had been asked to join the LTTE on the one hand and the claim that his cousin was in the EPDP paramilitary group which supported the government and so was suspected by the LTTE of also supporting the government on the other hand. In that context the reviewer then asked the applicant (transcript p.4):
This is my question, if they suspected you of supporting the government, why did they want to recruit you? It doesn’t seem to make sense.
The applicant indicated that he did not understand. The reviewer attempted to clarify and repeated the questioning, asking it in a more detailed way, at transcript p.4:
The LTTE knew your cousin was in the EPDP, which supported the government. The LTTE suspected that because of your cousin you also supported the government. But you said they wanted to recruit you. That doesn’t make sense to me because why would they want to recruit you if they thought you were a government supporter?
The applicant answered this question as follows:
None of my family members joined with LTTE and also they thought that I can move around anywhere, wherever I want to go I was able to go around. And because of that there was an opportunity to take me with them.
The reviewer then sought further clarification by asking the question with which Ms Farrugia took issue. The applicant clearly understood the question related to the actions of the LTTE in responding:
They possibly I was taken by the LTTE and I had to work there.
Insofar as issue is taken with the reviewer’s method of question, Ms Farrugia’s evidence addresses an optimal method of questioning and does not establish that the applicant was unfit to participate in the interviews by reason of his mental impairment.
After the adjournment to enable Ms Farrugia to identify other places in the transcript which she claimed were problematic, she referred to p.6 of the first transcript and part of the IMR’s questioning about the applicant’s claim that LTTE cadres threatened his family after he left Sri Lanka. The reviewer asked:
But why would they threaten your family members rather than threatening you and of course they couldn’t threaten you because you had gone.
The applicant responded:
This is because of that time the LTTE was recruiting one from each family and also I have to go with them they were targeting me from my family that I should somehow join with them.
Ms Farrugia suggested that the addition of the words “and of course they couldn’t threaten you because you had gone” after the question, “but why would they threaten your family members rather than threatening you” would be confusing for the applicant in terms of identifying the question or comment to which he was being asked to respond.
The IMR’s question may not be a model of clarity but it is to be borne in mind that a reviewer would not simply ask pre-prepared questions in an interview of this nature but would respond to and pursue issues raised by the applicant’s responses. In any event the applicant’s response appeared to indicate an understanding of the question. This was conceded by Ms Farrugia.
Insofar as Ms Farrugia took issue with the fact that the reviewer foreshadowed that he had two questions and then asked one (and that the applicant would be waiting for the second question and would have to reorient his thinking) she accepted that the applicant had responded to the question asked. Ms Farrugia was not able to point to any misunderstanding of the questions in this part of the interview or inability to respond in a meaningful way. Nor is any apparent. This exchange is not indicative of any difficulty on the part of the applicant in understanding or answering the IMR’s questions.
Ms Farrugia also suggested in relation to questioning on p.8 of the transcript that it would have been preferable for the reviewer to break down lengthy questions into a number of individual questions. However in the part of the interview in question the IMR returned to the contradictions in the applicant’s claims about the LTTE. He rephrased his concerns as follows:
Right OK thank you. Now going back to my point. You said that some of the LTTE who were trying to recruit you and later threatened you joined the Karuna Group. And you said that you’ve been told that the group are angry that you escaped and will kill you if you come back. This is difficult for me because you are in effect saying that the same people who tried to recruit you into the LTTE later came after you because they considered you were an LTTE supporter. That doesn’t make sense to me. Do you understand my point there seems to be a contradiction.
Contrary to Ms Farrugia’s suggestion, this part of the transcript did not involve a number of questions. Rather, the interviewer was clarifying the apparent contradiction in the applicant’s evidence. Further, the fact that the applicant did not provide a clear explanation for such contradiction has not been shown to be attributable either to the method of questioning or to a lack of mental fitness on his part.
Insofar as Ms Farrugia took issue with further questioning about this issue and the fact that late claims were made by the applicant on p.11 or p.12 of the transcript, as she admitted, the applicant provided a responsive answer to such questioning. No unfitness is demonstrated in that respect.
Ms Farrugia suggested that the applicant provided what may have been an unresponsive answer to the following question (transcript p.18):
I’m going to ask the country information section of the Refugee Review Tribunal to provide information about what was allowed and what wasn’t allowed during the ceasefire. Now again at the previous interview, IMR interview in other words the last interview before this one, you also said that the LTTE knew that your cousin was in the EPDP and that was the reason you were forced to work for the LTTE. I don’t quite understand the reasoning for this instead of making you work for them why didn’t they punish your family, or punish you? Did you understand the question, the point I’m making?
The applicant responded (transcript p.19):
The reason is that some of the families if one child is with the LTTE the other one is with the EPDP. This is because of our village had been under the control of the LTTE. Both the EPDP and LTTE they were representing the Tamil community. So this is because of my cousin’s brother who was in the EPDP, I didn’t want to join with the EPDP so I just supported the LTTE and no one forced me to join with the EPDP. And in my village most of them supported the LTTE.
It is the case that this answer was not responsive, as it addressed the applicant’s perspective not the motivation of the LTTE. However the reviewer then rephrased the question, which was answered responsively insofar as it addressed why the LTTE did not punish the applicant. While Ms Farrugia seemed to suggest that there should have been some further explanation of the question, the applicant’s response, once the question was rephrased, was responsive, as Ms Farrugia ultimately conceded. This part of the interview is not indicative of unfitness on the part of the applicant. In particular, when regard is had to the inherent lack of logic in his claims, his difficulty in providing a meaningful explanation is unsurprising. It has not been shown to have been attributable to mental unfitness or to some unfairness in the interview process or questioning amounting to reviewable error.
Ms Farrugia noted that later in the transcript the reviewer’s questions became a little more brief and succinct and were presented one at a time. She approved of such questioning. Nonetheless, she maintained that some of the questioning could have been more carefully constructed in the form of a question (in particular the question on p.26 about the claims about a Sri Lankan official threatening the applicant in detention in Malaysia). As set out above, as part of a serious of questions the reviewer stated:
My third question is that it doesn’t seem to make sense that he would threaten you if he wanted you to come back voluntarily.
Insofar as concern was again expressed about the fact that this was not clearly in the form of a question, as Ms Farrugia then conceded, once the question was reframed by the reviewer the applicant seemed to have understood it.
More generally, Ms Farrugia expressed the view that the applicant’s delivery of his evidence could be “compromised” because of his mental state at the time of the interview. She conceded that she was more certain about his actual mental state when she interviewed him. However she expressed the opinion that his evidence could have been expressed in a more fulsome way that exhibited a fuller understanding. Despite this, Ms Farrugia accepted in cross-examination that taking the two interviews overall, the applicant was able to present his case as to why he could not go back to Sri Lanka in a way that was comprehensible. The fact that the applicant might have present his case better does not establish that he was unfit to present his case in the manner contended for in ground one.
Ms Farrugia’s evidence in cross-examination focussed largely on ways in which the reviewer’s questioning might have been reorganised so as to elicit what she described as “the best possible evidence”. Such evidence is not supportive of any conclusion that the applicant was unfit to participate in the interviews with the IMR, or indeed, such that he could not meaningfully take part in such interviews.
The applicant conceded that it fell to the applicant to establish his case, but submitted that in circumstances where one of the principal grounds for judicial review involved expert evidence of a particular kind, being psychological evidence, a party seeking to defend that ground would adduce evidence, if it could, that supported assertions contrary to the applicant’s case, and that in the absence of such evidence the court should draw a Jones v Dunkel inference. However it is for the applicant to establish that he was unfit to attend the IMR interviews. This is not a case in which an inference favourable to the applicant based on Ms Farrugia’s evidence could be more confidently drawn on the basis that some person, as Kitto J put it in Jones v Dunkel and Another (1959) 101 CLR 298 at 308; [1959] HCA 8: “presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness” and where “the evidence provides no sufficient explanation of [the] absence” of such witness.
In any event, even taken at its highest, the evidence before the court does not establish that the applicant was unfit to give evidence.
Counsel for the applicant did not address in any detail the authorities relevant to the issue of whether an applicant was unfit to give evidence in the sense considered in SCAR or SZNCR. Counsel for the first respondent took the court to a number of cases, most of which concerned s.425 of the Migration Act 1958 (Cth), which provide an analogy as to what would be necessary to establish a denial of procedural fairness in relation to a recommendation by an IMR on the basis that an applicant was denied a fair opportunity to present his case at the IMR interview because he was suffering from mental impairment when interviewed.
The applicant’s claim was that the applicant was unfit to give evidence in the sense described in SCAR. In SCAR the Full Court of the Federal Court concluded that, given the findings of fact made by the primary judge, the visa applicant was not in a fit state to represent himself before the Refugee Review Tribunal. Hence it was said to be clear in SCAR that the invitation that the applicant had received under s.425 of the Migration Act was not a meaningful one and that while the Tribunal was not aware of this, it did not comply with s.425 of the Act and the visa applicant did not receive the fair hearing required by the Migration Act. However, as Branson J pointed out in NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56; [2003] FCA 983 at [51]:
SCAR provides limited assistance as to the content of the requirement that the applicant be fit to give evidence and present argument to the Tribunal. As the requirement of fitness in this sense is, as I understand the decision of the Full Court, a requirement to be found by implication in s 425 of the Act, the content of the requirement must be a question of law.
Moreover, as her Honour pointed out, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status recognises that determinations “may need to be made in respect of individuals suffering mental and emotional disturbances.” Similarly in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 (at [19]) Gleeson CJ recognised that many people who appear before administrative tribunals suffer from psychological disorders or psychiatric illness that may affect their capacity to do justice to their case, but expressed the view that 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; ordinarily it would be impossible to tell. It cannot be the case that the mere fact of a psychological disorder (and/or low intellectual capacity) necessarily demonstrates such unfitness that the “affected” applicant is denied procedural fairness in an interview process.
Relevantly Gleeson CJ also observed in SGLB at [19] that while the Tribunal in that case had obtained a psychological assessment for a limited purpose, it “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”.
Much of Ms Farrugia’s evidence (including in cross-examination) went to whether the applicant might have presented his case better. This possibility does not establish that he was “unfit” to give evidence.
In that respect I also note that in Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 the Full Court of the Federal Court considered a case in which a Federal Magistrate had concluded that the evidence before the court did not indicate that the applicant was entirely unfit to attend the Tribunal hearing and answer questions (see SZNVW v Minister for Immigration & Anor [2009] FMCA 1299). Nonetheless, his Honour was satisfied on the evidence before the court that “the Tribunal was deprived of the opportunity to assess the evidence given by the applicant in light of his diagnosed mental impairments” and that the applicant was denied a real and meaningful opportunity to participate in the hearing and have his evidence fairly assessed by the Tribunal in light of his impairments (SZNVW at [64]). His Honour was of the view that the applicant was denied a fair opportunity of having the Tribunal assess whether defects in demeanour, memory and consistency were attributable to a mental impairment or to concerns about veracity (SZNVW at [65]).
However on appeal Keane CJ, with whom Emmett J agreed, held that such findings did not support the conclusion that the Tribunal had failed to comply with the requirements of s.425 of the Migration Act. Relevantly (having regard to the matters referred to by Ms Farrugia and discussed further below) Keane CJ stated at [19] that:
… evidence that the respondent’s psychological difficulties might explain an unconvincing performance during the hearing before the Tribunal is hardly apt to establish his unfitness to “give evidence and present arguments”. It may be accepted that the Tribunal might have taken a different view of the credibility of the respondent’s account of his circumstances in [his home country] if the further evidence relating to the respondent’s psychological deficits and their impact on his ability to give persuasive evidence had been placed before the Tribunal. But the absence of that further evidence does not establish that the hearing before the Tribunal proceeded on a false assumption about the respondent’s ability to “give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Keane CJ further observed at [22] that:
…where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light.
Keane CJ also found (at [34]) that it had not been demonstrated that the Tribunal in SZNVW was wrong to regard the visa applicant “as a witness who was not worthy of belief” or wrong to attribute his “poor performance…to dishonesty rather than to the effects of his psychological problems”. The highest that could be said for the applicant was that it may have been that more information relating to his psychological problems might have led to a different view of his credibility. However this was said to fall short of demonstrating that he was denied a real and meaningful opportunity of giving evidence and presenting arguments in support of his application. These remarks are of particular relevance and are equally applicable in this case.
I have borne in mind that the lynch pin of SCAR is the importance it places upon the “invitation” referred to in s.425(1) of the Migration Act. However the arguments in this case proceeded on the basis that what was in issue was whether the applicant was unfit to give evidence in the sense described in SCAR. As Driver FM pointed out in SZQLZ v Minister for Immigration & Anor [2012] FMCA 1 at [38], an issue of procedural fairness such as that raised by the applicant in relation to the conduct of an IMR interview must be answered not by reference to the procedural code in the Migration Act but by reference to the general law. Nonetheless, there was no suggestion by either party that the approach taken in the context of the Migration Act did not also provide guidance in relation to the approach to be taken under the general law.
I have also had regard to the fact that in SZNVW Perram J pointed out that the authorities in relation to s.425 did not necessarily require total unfitness (at [85]). However as his Honour continued at [86]:
… what went wrong was the manner in which the [applicant] ran his case. If that default could be linked to his memory problem then it might be possible to say the [Tribunal] review function had been stultified (for example, by means of an argument that the [visa applicant] forgot to tell the Tribunal that he had memory problems). But it was not suggested that the [applicant’s] failure to seek to put on medical evidence of his memory problem was caused itself by that memory problem.
In SZNVW Perram J found (at [87]) that while the visa applicant “suffered the misfortune of not running his case as well as he might have”, it could not be said that the Tribunal’s review function was stultified or frustrated. Insofar as the applicant in this case did not run his case as well as he could have this does not establish reviewable error of the nature contended for by the applicant.
Tracey J found in SZNCR at [30]:
Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing. (Emphasis added).
The applicant acknowledged in written submissions that it must be demonstrated that the applicant was unfit (in the sense of unable) to give evidence, present arguments and answer questions in the course of the hearing. However it has not been established that the applicant was “entirely unfit” to attend the IMR interviews and answer questions in the sense considered by Tracey J. I note that there was no claim by the applicant and no evidence to suggest that any mental difficulty the applicant was suffering from was of an acute nature such that an adjournment would have been likely to lead to some treatment and improvement.
As Collier J stated in SZOVP v Minister for Immigration and Citizenship [2012] FCA 244 at [37] it is for the applicant to establish that he or she is unfit to attend a hearing. Her Honour was of the view that, as Branson J had stated in NAMJ, the court should accord weight to the view of the Tribunal in that respect. In this case, while the reviewer did not have before him the evidence of Ms Farrugia’s opinion expressed on the basis of interviews with the applicant some time after the interviews, he did have before him the STARTTS psychological assessment which referred to the applicant suffering symptoms of PTSD. The reviewer considered this diagnosis, but given the adverse findings about the applicant’s credibility based on a considerable number of reasons, did not accept that the inconsistencies and implausibilities in the applicant’s evidence could be ascribed to any aspect of his state of mind. I have had regard to the views of the IMR, insofar as he was made aware of the PTSD symptoms suffered by the applicant. There was no claim made to the IMR that the applicant was unfit to participate in either interview.
The report of Ms Farrugia was not a contemporaneous assessment conducted at the time of the interview (cf the report considered in SCAR). The IMR interviews were on 14 February 2011 and 2 March 2011. Ms Farrugia’s interviews with the applicant were on 28 August 2011 and 2 September 2011. Ms Farrugia’s opinion was limited to the view that the applicant’s overall psychological condition and cognitive capacity was highly likely to have had a “considerable impact upon his memory and ability to present his evidence”. Insofar as this amounts to a contention that he may have been able to give a better account of himself, I accept that this is so, but it does not establish that he was unfit or unable to give evidence or present arguments and answer questions (SZNVW at [84] – [85] and SZNCR). As in SZNCR, Ms Farrugia’s evidence went no further than an opinion that the applicant’s mental state had interfered with his capacity to advance his case in an optimal manner before the reviewer. Ms Farrugia did not express the opinion that the applicant was unfit or unable to give evidence, present arguments and answer questions.
Ms Farrugia’s elaboration on her concerns in cross-examination and re-examination did not go towards satisfying the court of the applicant’s unfitness to give evidence or answer questions. Her opinion that the length of time it took the reviewer to execute questions and his manner of questioning were not what she regarded as in the best interests of the applicant’s ability to process information effectively and remember it and her suggestion that while some of the applicant’s responses may look reasonable they may not have been as full and as detailed a response as he may have been able to give, does not establish such unfitness.
Ms Farrugia also suggested that the reviewer had to ask the applicant to relate very distressing and disturbing events in his life and that the impact of reliving such events could take up an enormous amount of “cognitive resources and mental ‘space’” and cause distress. It was suggested that this would leave the applicant little time to concentrate on a specific question and organise his thoughts to deliver a specific response, that his memory would have been affected by post-traumatic stress and that this would have been compounded if at the time of the interview he had been suffering from depression. In SZNVW Perram J acknowledged (at [86]) that a Tribunal “may be held to have conducted no review in a variety of circumstances falling short of complete incapacity on the part of an applicant to conduct a hearing”. Similarly there may be a lack of procedural fairness in circumstances falling short of complete incapacity of an applicant to participate in an IMR interview.
However in this case Ms Farrugia’s evidence, the transcripts of the interviews and the reviewer’s decision do not provide a basis to conclude that the circumstances were such that the applicant was denied procedural fairness. Indeed, it is apparent from the transcripts that the applicant was responsive in general. There were some occasional misunderstandings, usually cleared up by the reviewer reformulating the question to which there was a responsive answer. The evidence before the court does not establish the nature or degree of incapacity to give evidence, present arguments and answer questions necessary for the applicant to succeed on the basis contended for in ground one of the further amended application.
The material before the court, including the transcripts considered as a whole (and not simply the portions referred to by Ms Farrugia), is not such as to establish that the psychological and intellectual condition of the applicant at the time of the interview impacted on his ability to have a fair hearing to such an extent that he was denied procedural fairness. Having regard to the principles set out above, the evidence before the Court does not establish that the applicant was unfit or unable to give evidence, present arguments and answer questions such as to establish that he was denied a fair opportunity to present his case because he was suffering from mental impairment when interviewed.
This ground is not made out.
Whether the IMR erred in failing to put his findings to the applicant for comment
Ground three in the further amended application is as follows:
The Independent Merits Reviewer denied the applicant procedural fairness by failing to put his findings in paragraph [216] of the decision record, to the applicant for comment.
As originally drafted, this ground was expressed more generally. The applicant’s written submissions did not address the ground as pleaded. In oral submissions it was clarified that the applicant’s concern was that the reviewer did not put his concerns regarding the clinical psychologist’s diagnosis that the applicant was experiencing symptoms of PTSD to him for comment.
In paragraph [216] of the reviewer’s decision, the reviewer stated that:
I have had regard to the clinical psychologist’s diagnosis that the claimant is experiencing symptoms of PTSD. I make two observations. The experiences and symptoms which led to this diagnosis were, almost in their entirety, reported to the psychologist by the claimant. In this regard, I have already indicated my several adverse findings about the claimant’s credibility. Hence, I do not accept that the claims set out in the psychologist’s report in any way corroborate the applicant’s claims. In addition, as earlier stated, in considering the applicant’s oral evidence I was mindful of his likely state of mind at the time; nevertheless, given my several adversarial findings about his credibility, I do not accept that the inconsistencies and implausibilities in his evidence can be ascribed to any aspect of his state of mind.
While the IMR referred to an assessment by from a clinical psychologist called Nevriye Guven dated 12 May 2010 in his description of the evidence, the assessment by Melinda Austen is dated 12 May 2010 and is to the effect of the report referred to in paragraphs [33] and [216] of the reviewer’s reasons. There is no evidence before the Court of any report by a Ms Guven. The applicant did not dispute that in paragraph [216] the reviewer was addressing the report prepared by Ms Austen.
Importantly, Ms Austen’s report was provided to the reviewer by the applicant’s adviser. This report is to the effect that the applicant presented with symptoms consistent with PTSD such as avoidance, anxiety, concentration and memory problems, psychological complaints, sleep difficulties and fear said to be from traumatic events. In the course of her report Ms Austen described the incidents narrated by the applicant that were said to have caused him distress and a fear of returning to Sri Lanka.
The applicant submitted that the reviewer should have put his concern that the applicant’s difficulties were “reported” to the psychologist (as distinct from being a clinical observation of the psychologist) to him for comment so that his adviser “[was] in a position to commission a supplementary report addressing the concerns raised, and/or to commission a report from another expert”.
In oral submissions counsel for the applicant also appeared to contend that it was necessary for the reviewer to put to the applicant his conclusion based on adverse credibility findings that he did not accept that inconsistencies and implausibilities in the applicant’s evidence could be ascribed to any aspect of his state of mind.
To some extent the applicant’s submissions involve a contention that Ms Austen’s report was corroborative evidence of the applicant’s claims to be a refugee. However in this case, as in Minister for Immigration and Citizenship v MZYHS and Another (2011) 119 ALD 534; [2011] FCA 53 (in relation to a decision of the Refugee Review Tribunal which rejected a visa applicant’s claims because of major concerns with his account which led the Tribunal to conclude that he was not a credible witness) it was (per Kenny J at [31]):
… open to the [decision-maker] to determine that, in so far as the … psychological reports tended to corroborate the [visa applicant’s] account, they were to be accorded little, if any, weight. Put another way, it was for the [decision-maker] to determine the weight to be given to an expert psychologist’s opinion, having regard to the other evidence before it that supported or undermined the supposed facts on which the opinion was said to be based… In this case, the corroborative effect of the evidence constituted by the … psychological reports … was significantly diminished by the [decision-maker’s] “major concerns” about the [visa applicant’s] account, and, most particularly, its adverse finding about the [visa applicant’s] credibility.
It was open to the reviewer not to accept that Ms Austen’s report corroborated the applicant’s claims (in effect giving it no weight in this respect) having regard to the IMR’s clear concerns about the applicant’s account of his claims and the adverse finding about his credibility.
Insofar as this ground involves an allegation that the reviewer was obliged to tell the applicant that he may not put great weight on Ms Austen’s report because he did not accept the factual history on which the report was based, there is no general requirement for a decision-maker to put to an applicant his or her preliminary reasons or to give a running commentary on what he or she thinks of the applicant’s evidence in order to comply with procedural fairness (see Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [31] per Gleeson CJ and Hayne J; Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30 at [265] – [266] per Hayne J; Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60 at [54]; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [48]). It cannot be said that it was not obviously open to the reviewer to find that he could not give weight to the report in support of the applicant’s claims having regard to the fact that it was based on a history contrary to the IMR’s own findings.
Insofar as it was submitted for the applicant that this was a matter that went to the core of the way the applicant’s adviser ran the matter, such contention is not borne out by the material before the court, in particular, the transcript of the interviews with the applicant. Rather, at the conclusion of the first interview, the adviser simply provided the reviewer with a copy of the STARTTS assessment by Ms Austen. The reviewer indicated that he thought he had already received this report. The adviser said it may have been sent to the Minister’s office or to the Department in connection with a Ministerial intervention request (transcript p.29). This exchange is not such as to make it clear that some particular emphasis was placed on the report. The court’s attention was not drawn to any other place in the interview which addressed this report or to any submission by the adviser about the assessment. In his reasons for decision, the IMR explained why he did not find that the report explained the inconsistencies in the applicant’s evidence. There was no requirement that that the reviewer’s reasoning process be put to the applicant for comment.
This ground is not made out.
Whether the IMR erred in relation to independent country information
Ground four in the further amended application is as follows:
The Independent Merits Reviewer denied the applicant procedural fairness in approaching the matter on the basis that a binary decision had to be made between various items of independent country information, rather than make a reasonable assessment of all the independent country information available to him in assessing the applicant’s claims.
PARTICULARS
a. At paragraphs [167] to [169] of the decision record, the Independent Merits Reviewer states that “I do not accept that since the end of the conflict, the mere fact of being a young Tamil male from the east of Sri Lanka would for that reason alone, without further contributing factors, cause a person to be suspected of having been an LTTE member or supporter [168]. While the country information is divided on the question, I am guided by the fact that no such assertion is made in the following sources … [169] I further note that the Amnesty International report … does not suggest otherwise. It argues that young Tamil males from the East who have actual or imputed links to the LTTE face risk of arrest. (Emphasis added in further amended application).
The applicant referred to the fact that in Minister for Immigration and Citizenship v MZYLE (No 2) [2011] FCA 1467 the Federal Court upheld a decision of this court “regarding the erroneous nature of approaching a recommendation to the minister on the basis of supposed need to make “binary decisions”, rather than actually addres[sing] the question of whether or not a claimant [was] a refugee”. It was pointed out that “merely reciting the correct test” was not enough and submitted that, as in MZYLE, the IMR in this case had wrongly approached his task on the false premise that it was necessary to “come down on one side or the other” regarding each factual assertion made by an applicant “[r]ather than undertaking an assessment of the risk of persecution to the claimant” (MZYLE at [32] – [33]).
It was contended that while the reviewer had stated at paragraph [162] that he had considered the applicant’s claims “cumulatively”, the paragraphs that followed revealed the same type of error as occurred in MZYLE.
The applicant also submitted that the transcript made it apparent that the reviewer had approached this matter on the basis that he had to “come down on one side or the other” in relation to the applicant’s claims. Reliance was placed on the reviewer’s statement to the applicant at p.8 of the transcript of the first day of the interview:
… you are in effect saying that the same people who tried to recruit you into the LTTE later came after you because they considered you were an LTTE supporter. That doesn’t make sense to me. Do you understand my point there seems to be a contradiction.
In effect, it was submitted that there was a lack of synthesis of the matters considered by the reviewer which ultimately led to his recommendation.
It was acknowledged that the reviewer referred in his reasons to the test in the Refugees Convention but submitted that what was said in MZYLE was in point. In that case North J stated at [33]:
The first respondent, however, submitted that the reviewer misunderstood the ultimate questions to be resolved and the full scope of his function. Rather than undertaking an assessment of the risk of persecution to the claimant, the reviewer proceeded as if the fact finding on the issue of the scrutiny of asylum seekers in the past resolved the question whether the claimant fell within the definition of a refugee. The reviewer failed to make an assessment of the risk to the claimant of persecution in the future and thereby asked himself the wrong question. This was confirmed by the conclusion that “generally speaking a Tamil returned to Colombo after seeking asylum in Australia would be under no more scrutiny than any other Tamil returning to Colombo”. It was said that this conclusion shows that the reviewer failed to address the particular risk to the appellant. The failure of the reviewer thus to ask himself the right question was a jurisdictional error and the Federal Magistrate was correct, so it was argued, to make the declaration in [1(b)] of his orders in relation to the country information concerning the scrutiny of returned asylum seekers.
First, as the written submissions for the Minister pointed out, the applicant’s written submissions did not address the ground as pleaded, but rather complained of the reviewer’s treatment of the applicant’s claims rather than his treatment of independent country information. In oral submissions, counsel for the applicant merely relied on MZYLE in support of the proposition that the reviewer had fallen into error in the same way as had occurred in that case.
It appears that the applicant’s contention in this respect relies primarily on the reasoning of Reithmuller FM at first instance (in MZYLE v Minister for Immigration & Anor [2011] FMCA 589 at [46]–[47]).
It was conceded for the Minister that if the reviewer had approached the matter on the basis that he had to pick one or another item of country information rather than forming a conclusion of his own on the basis of all the information before him, that would be an error, but that has not been shown to have occurred. MZYLE is not of assistance to the applicant in this case. In this case the reviewer made his own assessment of country information. He did not approach the matter on the basis that he had to choose between one version of the material or another. The fact that the IMR made a finding preferring some country information over other information, having had regard to a range of information, does not mean that he proceeded on the basis of a preconceived notion that there was a requirement to come down on one side or the other. Rather, as in SZQQR v Minister for Immigration & Anor [2012] FMCA 434 at [149], the reviewer considered conflicting country information, assessed that information and made his findings on that basis.
The reviewer’s approach at the interviews (including raising possible implausibilities and inconsistencies in his claims) does not go to show a reviewable error.
To the extent that (notwithstanding the wording of ground four), it is intended to be submitted by the applicant that the reviewer failed to undertake an overall assessment of the risk of persecution to the claimant this is not made out. The IMR engaged in such an assessment insofar as it was necessary to do so having regard to the adverse credibility finding.
Insofar as the applicant appeared to contend that the reviewer erred in approaching the matter on the basis of making findings of fact concerning past events including the applicant’s claims as to what had occurred to him in the past before addressing the “real chance” test in relation to the future, such an approach is consistent with Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 574 – 575; [1997] HCA 22. The reviewer considered each of the applicant’s claims (and his concerns in such respects) as part of the process of determining whether the applicant had a well-founded fear of persecution.
This ground is not made out.
Whether IMR erred in not putting his findings about an email from the former Malaysian Human Rights Commissioner to the applicant for comment
Ground six in the further amended application is as follows:
The Independent Merits Reviewer erred in not putting findings with respect to an email from the former Malaysian Human Rights Commissioner, as in paragraph [211] of the decision record, to the applicant for comment, and thereby denied the applicant procedural fairness.
Paragraph [211] of the reviewer’s decision related to the applicant’s claim that during his detention in Malaysia he and other Sri Lankan detainees were threatened with retribution by a Sri Lankan official who knew his identity.
In an email from the former Malaysian Human Rights Commissioner to the applicant’s adviser dated 21 March 2011, referred to in paragraph [211] of the IMR’s decision, the Commissioner confirmed his visit to the KLIA Detention Centre on 20 October 2009 as Human Rights Commissioner and recorded that Sri Lankan refugees had reported to him that officials of the Sri Lankan Embassy in Malaysia had visited them on 18 October 2009 and asked them to return to Sri Lanka immediately, offering them assurances of safety.
The IMR stated at [211]:
I further note that in the email from the former Malaysian Human Rights Commissioner, all he states is that the refugees reported to him that officials of the Sri Lankan High Commission had visited the centre and asked them to return to Sri Lanka, offering them assurances of safety. He makes no mention of hearing of any threats by any of the Sri Lankan officials. In short, his email does not support the applicant’s claims.
The background to this email arises from the fact that the applicant made a claim about threats by a Sri Lankan official in Malaysia at the first IMR interview. After that interview the applicant’s adviser wrote to the first reviewer elaborating on this claim. The first reviewer asked the RRT Country Research Unit to make inquiries about whether there had been an incident such as that to which the applicant referred at the KLIA Immigration Detention Centre in Malaysia in October 2009 and also to ask UNHCR if an incident had occurred as claimed by the applicant.
On 21 June 2010, UNHCR Canberra responded that UNHCR Malaysia was not able to verify such claims and subsequently advised that:
[It was] not aware of any threats made by an official of the Sri Lankan High Commission to a group of Sri Lankan nationals being held at the KLIA Detention Centre.
The first reviewer gave this information to the applicant’s adviser for comment and the adviser commented on 16 August 2010.
The email referred to paragraph [211] was not obtained by the IMR. It was provided to the reviewer under cover of a letter of 22 March 2011 from the applicant’s then solicitor as confirmation of his claims that Sri Lankan refugees had reported that officials of the Sri Lankan Embassy in Kuala Lumpur had gone to the detention centre on 18 October 2009. In other words, the information was relied on by the applicant to corroborate his claims that the visit took place and the date on which it occurred.
In his findings and reasons, the second reviewer did not accept that a Sri Lankan diplomat threatened the applicant and other detainees based on his adverse views of the applicant’s general credibility, the advice from UNHCR that they were not aware of any threats by the official, the implausibility of the claim that a Sri Lankan official would make such threats if he wanted to persuade the detainees to return to Sri Lanka and the fact that the reviewer did not accept the claim that the official believed all the detainees to be LTTE members.
Contrary to the submissions for the applicant, the reviewer did not find that the veracity of the applicant’s claims regarding the involvement of the High Commissioner should be rejected as a result of findings made in relation to this email. The IMR based its finding about whether the Sri Lankan diplomat threatened the applicant and others on several matters. The authenticity of the letter from the former High Commissioner was not in issue. This is not a case in which the reviewer did not believe the contents of the email. The reviewer made no adverse finding in relation to the genuineness or believability of the email, but rather made a finding as to the limited scope of the email. The email was not regarded as corroborative of the applicant’s claim about being threatened. The reviewer did not positively find that the email should be rejected without giving the applicant an opportunity for comment (see WAGU v Minister for Immigration and Cultural and Indigenous Affairs (2003) FCA 912). Nor did he express any doubt as to genuineness of the document in the sense considered in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; [2003] FCA 188.
Indeed the reviewer accepted that, as the email stated and as the applicant’s then solicitor had contended, refugees had reported to the High Commissioner that officials of the Sri Lankan High Commission had visited the Detention Centre and asked them to return to Sri Lanka, offering them assurances of safety. There was no obligation on the reviewer to put to the applicant that the letter of support he had provided made no mention of reports to the High Commissioner of any threats by any of the Sri Lankan officials. It was an obvious conclusion that given its limitations the email the applicant provided to the reviewer did not support the applicant’s claims that he was threatened. The reviewer was not obliged to put the obvious conclusion that the email did not support the applicant’s claims to have a well-founded fear of persecution based on threats of retribution from a Sri Lankan official to him for comment.
This ground is not made out.
Whether IMR had to put his doubts about the genuineness of supporting evidence to the applicant for comment
Ground seven in the further amended application is as follows:
The Independent Merits Reviewer erred in not putting findings on doubtfulness of genuineness of police reports, the affidavit by Mrs … Maheswary, the applicant’s mother’s affidavit of April 2010, and, the applicant’s mother’s letter dated 28 February 2011, as in paragraph [215] of the decision record, to the applicant for comment, and thereby denied the applicant procedural fairness.
The applicant submitted that the reviewer was obliged to put his “findings on doubtfulness of genuineness” of the specific documents referred to in paragraph [215] of the decision to the applicant for comment.
Paragraph [215] of the IMR’s decision is as follows:
Based on these findings, I give little weight to the two police reports, both of which are based on information provided to the police by the claimant’s parents and aunt, which in turn would have been substantively based on information received from him. I consider that this information was an invention intended to help their son’s/nephew’s case. By the same token I give little weight to the affidavit by Mrs … Maheswary; I consider her speculation that her grandson’s disappearance is attributable to his connection to the claimant, is also a well-intended invention based on information received from the claimant. For the same reason, I give little weight to the claimant’s mother’s affidavit of April 2010 or her letter of 28 February 2011. And I give little weight to the letter signed by the Bishop of Trincomalee/ Batticaloa, whether or not it was drafted by a local priest. I note that the adviser stated that it was his understanding that the letter was drafted using information provided by the family. I consider that the provision of this information for inclusion in a letter signed by the Bishop had the same goal as the police reports. I have also taken into account the contradictory claims by the applicant about the hypothetical priest’s acquisition of first-hand knowledge about the applicant’s case. At my hearing with him, first he argued that priests are not allowed to go into villages to make inquiries, then he asserted that they are.
No issue was taken in ground seven with the reviewer’s treatment of the letter signed by the Bishop. Notwithstanding this, counsel for the applicant submitted that the reviewer’s findings in respect of the letter from the applicant’s mother tied into the findings made about the Bishop’s letter and the other material referred to in paragraph [215]. It was contended in oral submissions that the reviewer had looked at these documents together and found that they were lacking in credibility and that the way the reviewer had approached the letter from the applicant’s mother was to the effect that there had been a “conspiracy” involving the applicant, a local bishop in Sri Lanka and the applicant’s mother and that it could not have been anticipated by the adviser or the applicant that findings would have been made involving dishonesty and that the Bishop would simply have used information from the family.
It was also contended that the reviewer made positive findings that the material provided by the applicant’s mother was “effectively a combination of speculation and recent invention”. The applicant submitted that the reviewer’s findings regarding recent invention amounted to a positive finding regarding this material (see WAGU) and that hence the applicant should have been given the opportunity to “be heard on the genuineness of the letters” (see WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171).
Reliance was placed on the decision of the Federal Court in Meadows and Another v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; [1998] FCA 1706, in which the Refugee Review Tribunal was said to have held that letters produced in support of an applicant’s claims had been drafted in “collusion”. The Tribunal had declined to give any weight to these letters, concluding that they were “fabricated and contrived”. The primary judge had found that the Tribunal made no error in law in respect of either letter and that it was open to the Tribunal to conclude that an alleged police visit referred to in a supporting letter was “manufactured” and that the letters “lacked credibility”. Relevantly, his Honour found that there was no obligation on the Tribunal to give the applicant an opportunity to address the finding of fabrication before it was made.
However on appeal in Meadows Einfeld J was of the view (at 381 – 382) that the Tribunal was obliged to put to the applicants for comment the assertion that they were “implicated in the falsity of the letters” and were “participants in an elaborate fraud to support their otherwise unmeritorious case by false and contrived evidence” in the form of the two letters and the matters contained in them. Von Doussa J was of the view (at 383) that the “plain inference” from the Tribunal’s findings was that the Tribunal considered that the visa applicants were “knowing participants in the fabrication of false evidence” in circumstances where the Tribunal had told the applicants during the hearing that he was not accusing them of anything. This was said to be likely to have had the effect of “misleading” the applicants into thinking that even if the letters were found to be contrived or fabricated to help their case, their credibility would not be affected (at 383). Merkel J agreed that the Tribunal had erred in failing to make known in “plain terms” to the visa applicants that it was considering making a finding that the two letters upon which they relied were fabricated or contrived by them to “falsely suggest that they were perceived by Sri Lankan authorities to be implicated in LTTE activities” (at 387). His Honour was of the view that there had been a failure to raise such “critical issues” with the applicants.
Counsel for the applicant submitted generally that the approach in Meadows was relevant because in that case the Tribunal had found that the letters produced in support of the applicants’ claims had been drafted in “collusion”. It was suggested that in this case the IMR made findings to the effect that there was a conspiracy involving the applicant, his mother and the other letter writers (the police and Mrs Maheswary and possibly the Bishop) that had to be put to the applicant for comment.
I note first that the reviewer did not doubt the genuineness, in the sense of the source, of the documents in question or find that they were forgeries (see WACO at [53]). Rather, the reviewer had regard to the findings he had already made in relation to the applicant’s claims and reached the view that the claims made in these documents were inventions based on information provided by the applicant to his family (and thence to those who provided the documents in question) and were intended to help the applicant’s case. In those circumstances, the reviewer gave “little weight” to these documents, having already comprehensively rejected the applicant’s claims. Such a finding does not amount to a suggestion of an elaborate conspiracy. Nor was this a case in which the reviewer misled the applicant in the manner considered in Meadows.
As the Full Court of the Federal Court stated in Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83 at [68] it is the case that:
While the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO’s Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case (VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [64]). WACO’s Case does not establish any new principle.
When interviewed by the first independent merits reviewer the applicant was asked why his mother had waited until 7 April 2010 to lodge an affidavit with the police about the disappearance of his cousin in 2004 and to complain about threats made by unknown individuals. The first reviewer put to the applicant that this report had been made after the RSA decision and before the first review interview and that therefore a case could be made that the mother’s report to the police was lodged to “bolster” the applicant’s case. The reviewer also recorded that in the course of discussion of the letter from the bishop in Batticaloa, the applicant’s adviser clarified to the first reviewer that it was his understanding that the letter had been drafted by a local priest using information provided by the family.
Further, in the second hearing conducted by the second IMR on 2 March 2011 the reviewer asked the applicant why his mother waited six years to complain of threats made by unknown individuals in 2004 (transcript p.2). The IMR also raised with him the fact that the Tamil Tigers were out of action after May 2009, and put to the applicant that it seemed that the fact that his mother had gone to the police to complain about his cousin’s abduction and harassment suggested that she had “confidence” in the police (transcript p.3). The reviewer reiterated this question at transcript p.4, giving the applicant an opportunity to comment.
The IMR also raised the letter from the bishop in Batticaloa, putting to the applicant that the previous reviewer had noted that the Bishop had been quoted in country information as stating that “the situation in Batticaloa was improving” and also the fact that the adviser had told the earlier reviewer that he understood the letter from the Bishop had been drafted by the local priest using information provided by the family.
Importantly, the reviewer continued (transcript p.4):
That would suggest that the views expressed in the letter signed by the Bishop were not his, were not his views. And as the priest was using information provided by your family, it would also suggest that that information was not, let me say, objective. Do you understand what I’m getting at?
CLAIMANT (INTERPRETER): Yes.
REVIEWER: Please.
APPLICANT (INTERPRETER): The views that the Bishop has expressed is a general view that in a general sense there is no problems, and there are constraints for the Bishop to have to say that. In fact the priest himself is not permitted to go back to the village. So individual people have problems and I am one of those people that have specific problems. My family did go and tell the priest about my problems but the priest does not write letters of anything that anyone says, he makes inquiries and verifies it before he issues a letter and my letter was issued in such a manner.
The reviewer then raised with the applicant his earlier evidence that the priest was not able to go back to his village. The applicant denied having said this and indicated that the priest would have checked with his family, the people around him, and the government agent in the village (transcript p.5).
Towards the end of the hearing, after the reviewer had raised a number of items of country information and other information with the applicant and his adviser for comment, the adviser produced the letter from the applicant’s mother dated 28 February 2011 which claimed that (unspecified) people still came and asked about the applicant’s whereabouts and threatened that “he ha[d] no safety [t]here” (transcript pp.15 – 16). The adviser conceded that the letter did not specify who these people were, but submitted that the applicant had given ample evidence to show the “principal threat” to him came from the Karuna group, and “the police and security forces in the east” (transcript p.16).
The adviser also responded to the issue the reviewer had raised about the fact that the applicant’s mother had complained to the police in 2010 about events of 2004 (after the defeat of the LTTE in 2009) (transcript pp.16-17). The adviser submitted that it should not be “a matter of suspicion” that one of the priests in the diocese prepared the letter for the Bishop’s signature or that he had provided advice on improvements in the situation in his diocese.
In the particular circumstances of this case the applicant could have been in no doubt that his claims may not be accepted, given not only their rejection by the refugee status assessor, but also the detailed questioning by the reviewer. Moreover, the reviewer did not find that the documents in question were forgeries. Rather, he considered that the information in them was an invention intended to help the applicant’s case and gave little weight to such documents. The IMR did not find that this evidence had been drafted in collusion or as part of a conspiracy involving the applicant, his mother and other letter writers (cf Meadows).
The reviewer did not have regard to this aspect of his findings as part of the reason for rejecting the applicant’s credibility. In this case, as in SZOUM v Minister for Immigration and Citizenship [2011] FCA 595, the reviewer first assessed the applicant’s credit before giving attention to the potentially corroborative documents (consistent with the approach in Minister for Immigration and Citizenship v SZNSP and Another (2010) 184 FCR 485; [2010] FCAFC 50 at [37] – [38]). He went on to consider that evidence and as “required to do, weighed the corroborative evidence in the balance with all the other evidence” (SZOUM at [19]).
While the reviewer did not specifically put to the applicant that he considered that the documents contained information that was an invention, it is apparent from the transcripts of the hearings that the IMR put the “critical issues” to the applicant (see SZOUM at [23]). As stated in SZMOK at [59] “it is not an error of law for [a decision-maker] to reject corroborative evidence on the basis of its view of an appellant’s credit (see WACO’s Case at [41])”.
The reviewer was not obliged to put his ultimate reasoning concerning such documents to the applicant for comment (SZMOK and SZOUM at [23]). It is well-established that a decision-maker is not obliged to give an applicant his preliminary reasons or a running commentary on what he thinks of the applicant’s evidence in order to accord procedural fairness (see for example, Miah at [31] per Gleeson CJ and Hayne J; Muin at [265] – [266] per Hayne J; Applicant S154/2002 at [54]; and SZBEL at [48]).
This ground is not made out.
As none of the grounds relied on by the applicant have been established, the application must be dismissed.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 12 September 2012
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