SZQQR v Minister for Immigration

[2012] FMCA 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQQR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 434

MIGRATION – Application for review of decision by Independent Merits Reviewer – whether the reviewer failed to consider and afford weight to corroborating documents – post-traumatic stress disorder – the applicant’s capacity to participate in an interview – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.91R, 425, 476
Federal Magistrates Court Act 1999 (Cth), s.64
Federal Magistrates Court Rules 2001 (Cth), r.15.29A

Plaintiff M61 /2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2011) 243 CLR 319
Deputy Commissioner of Taxation v Barnes [2008] FMCA 7
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
SZQLZ v Minister for Immigration & Anor [2012] FMCA 1
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration & Citizenship v MZYLE & Anor [2011] FMCA 589
Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyd’s Rep 1
Immigration and Citizenship v MZYLE (No 2) [2011] FCA 1467
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559

Applicant: SZQQR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: PETER GACS, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 2106 of 2011

Judgment of: Nicholls FM

Hearing date: 13 March 2012

Date of Last Submission: 13 March 2012

Delivered at: Sydney

Delivered on: 29 May 2012

REPRESENTATION

Counsel for the Applicant: Mr M Gibian

Solicitors for the Applicant: Parramatta Community Justice Clinic

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 19 September 2011, and amended on 1 November 2011, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $8,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2106 of 2011

SZQQR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

PETER GACS, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the recommendation of the second respondent, Mr Peter Gacs, the Independent Merits Reviewer (“the reviewer”) (dated 24 August 2011) that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.[1] The application for review, made on 19 September 2011, was subsequently amended on 1 November 2011.

   [1]United Nations Convention Relating to the Status of Refugees , opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention  ”).

Background

1. The applicant is of Tamil ethnicity and is a citizen of Sri Lanka (see Court Book – “CB” – CB 3 and CB 22). On 2 October 2009 the applicant arrived on Christmas Island without a valid visa. On 22 October 2009 he was interviewed by Australian authorities who characterised his arrival as “unauthorised” (CB 1 to CB 21).

2. In that interview the applicant claimed that he had been a taxi driver and had been discriminated against by other taxi drivers in Sri Lanka because he was a Tamil. The ethnic Sinhalese taxi drivers in his town had, in 2008, damaged his taxi and beat him. As a result of this attack he had stopped working as a taxi driver. Further, in 2009, “Sinhalese” came to his home and told him to leave (CB 11 and CB 20). Subsequent to this visit the applicant, along with his brother-in-law, decided to leave Sri Lanka. Additionally, the applicant claimed he had assisted the United National Party (“UNP”) by placing posters in his local town and explaining the posters to others (CB 12).

Refugee Status Assessment

1. On 20 November 2009 the applicant requested a Refugee Status Assessment (“RSA”) of the Minister (CB 22 to CB 33). With his application the applicant provided a Statutory Declaration, declared on 20 November 2009, in support of his claims to be a refugee (CB 34 to CB 45). These were:

   1)In Sri Lanka, he had lived in a “majority Sinhalese community” and was “persecuted” because he was a Tamil ([2] at CB 39).

   2)He worked as a taxi driver in that community. In 2006 the applicant faced verbal abuse from the Sinhalese taxi drivers and was forced to stay away from the taxi stand for a period of time ([5] at CB 40).

   3)On one occasion, the applicant was beaten by some Muslims. He did not go to the police ([7] at CB 40 to CB 41).

   4)In 2008 members of the UNP visited the applicant’s village. He offered to translate for them as he understood both Sinhalese and Tamil. He was also asked to translate for the Sri Lankan Freedom Party (“SLFP”), whom he refused. As a result of his refusal he was beaten ([9] at CB 41).

   5)In 2008 he was attacked by “Sinhalese people” who “… burned my taxi and with a knife cut my legs”. The applicant’s wounds required medical attention. He did not report the incident to the police ([10] at CB 41).

   6)The applicant’s taxi was repaired and he was able to resume work three to four months later. At this time, the Sinhalese drivers came to his home and “threatened” him, saying he should not resume working as a taxi driver ([11] at CB 42).

   7)In May 2009 the applicant refused to place a picture of a deceased Liberation Tigers of Tamil Eelam (“the LTTE”) leader in his taxi, for which he was beaten. The applicant reported this incident to the police, however they refused to record his complaint ([12] at CB 42).

   8)As a result of these events, and being a young man who was assumed to be a member of the LTTE, the applicant felt he had no future in Sri Lanka and that his life was in danger ([14] at CB 42). He decided to leave, along with his brother-in-law who “had his own problems” ([15] at CB 43).

   9)If returned to Sri Lanka, he feared harm because he was a young man and it would be assumed that he was a member or supporter of the LTTE ([2] at CB 39 and [16] at CB 43).

2. The applicant appointed a migration agent to represent him, and authorised that representative to receive correspondence on his behalf (CB 59 to CB 62).

3. The applicant’s claims were assessed by an officer in the Minister’s department on 5 January 2010 (“RSA”) (CB 71 to CB 80). The applicant was notified by letter that he had been unsuccessful, and had been found not to be a person to whom Australia owed protection obligations (CB 69 to CB 70).

Independent Merits Review

1. By fax dated 25 January 2010, the applicant’s agents requested Independent Merits Review (“IMR”) of the RSA decision that the applicant was not a refugee (CB 82 to CB 85).

2. On 5 February 2010 the applicant’s representatives provided him with a copy of a statement, purportedly an English language copy of his claims for protection, which he signed on 6 February 2010 in “the company of interpreter” (CB 86 to CB 94). That statement was subsequently provided to the reviewer on 18 February (CB 95).

3. The applicant’s claims to protection as set out in his statement are largely the same as those in his statutory declaration (as set out at [4] above) above. However, the applicant expanded on some claims and sought to clarify others. Specifically:

   1)In 2005, when the applicant was beaten by Muslims, the individuals involved were from a different area of town. They had beaten him as they wanted information regarding the Muslim group that operated in the area of town in which he resided. The police did not investigate his complaint as “… they were happy for Tamils to be dragged into the problems between the Muslims” ([25] at CB 93).

   2)The applicant claimed that while he had driven his taxi from 2006 to 2009, there were several periods of time during those three years when he could not drive his taxi “… for fear of harm from Singhalese drivers” ([5] at CB 88)

   3)After the incident when his taxi was burnt and he was badly attacked, the applicant spent some time recovering. While he had repaired his taxi around four months later he had not resumed driving at that time ([9] at CB 90). He continued not to drive his taxi from July 2008 to September 2008 as he “was scared of being attacked again” ([11] at CB 90).

   4)In July 2008 the applicant approached a travel agent in an attempt leave Sri Lanka. The agent took money from him and sold his passport. Although he was ultimately able to get his passport returned (through the payment of funds), he did not attempt to leave Sri Lanka again as he had inadequate funds and did not trust agents to assist him ([10] at CB 90).

   5)In late-2008, “possibly around August”, individuals came to his home. Although he was not present, his mother was and they made threats to her against him. Namely that the applicant “…should not drive the taxi, and that I should leave the town” ([11] at CB 90).

   6)In early-2009 the applicant recommenced driving his taxi. At this time he also began working with and was “a supporter of the UNP” ([12] – [13] at CB 91). The applicant used his taxi to “… transport myself and the other members around town when we went to put up posters”. He also acted as an interpreter for the UNP ([13] at CB 91).

   7)The applicant clarified his earlier statement that a particular provincial election was held in May 2008, stating it was “… actually held in Feb 2009” ([13] at CB 91).

   8)During the election campaign period he was approached by a member of the SLFP and asked to assist them by providing interpreter services. He refused and was beaten. On the night of the election, he was again beaten by members of the SLFP ([16] at CB 91).

   9)After the election loss of the UNP the applicant realised he “… would not have any protection in Sri Lanka” ([18] at CB 92). So that he could raise funds to leave Sri Lanka, the applicant recommenced driving his taxi ([23] at CB 93).

   10)In June 2009 the applicant left his family home and began moving from place to place.

   11)The UNP have been blamed in the Sri Lankan media for much of the violence in the country. The UNP politician the applicant assisted in the 2009 election is now a member of the SLFP and could identify the applicant for the SLFP ([26] at CB 93 to CB 94).

1. In addition to his statement, his representatives made written submissions on 18 February 2010. Further, they provided copies of a letter from a Sri Lankan politician in support of the applicant’s claim to have supported the UNP and a receipt from a travel agent in relation to a previous attempt by the applicant to work overseas (CB 95 to CB 109).

2. On 10 April 2010 Mr S Karas AO, a person acting in his capacity as reviewer (“the first IMR”), recommended to the respondent Minister that that applicant was not a person to whom Australia owed protection obligations (CB 110 to CB 138).

3. Following the High Court decision in Plaintiff M61 /2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2011) 243 CLR 319 (“M61/M69”), the applicant was provided with the opportunity of a “second IMR” (CB 139).

4. His representatives provided several additional documents in support of his application on 18 February 2011, as well as making written submissions (CB 139 to CB 144).

5. The applicant provided a further statement for the purposes of his “second IMR” (CB 145 to CB 148). He relied on the previous information he had provided ([2] at CB 145), and additionally claimed that:

   1)He had not “exaggerated or embellished” his claims ([3] at CB 145).

   2)The Sinhalese people who attacked him in Sri Lanka continue to regularly come to his house in large groups. While the people who attacked him were not in the army, some of their family members are. They have “… threatened that they will not leave me alive if they find me” ([4] at CB 145).

   3)His mother and brother have been “physically harmed” and “tortured” as a result of him leaving Sri Lanka ([5] at CB 146).

   4)In May 2010 the applicant’s mother and younger brother were beaten by a group of Sinhalese youths. These youths also regularly came to his mother’s home and harassed her. However on this specific occasion they “… broke many things in the house and beat her and my brother”. As a result, his mother had to seek medical attention at the hospital. The applicant was only recently made aware of this because it was hard for his mother to speak about such things by telephone ([6] at CB 146).

   5)In November 2010 the applicant’s brother was “… kidnapped, threatened and tortured” by Sinhalese individuals who asked questions regarding the applicant. When he was released, his injuries were such that he remained in hospital for several days. He continued to be “disturbed” and now has to take medication. He was too scared to return to the family home, so he went to live with their sister in a different village ([8] at CB 146).

   6)His friends have been questioned about him ([9] at CB 147).

   7)His family moved house, however the “problems” have continued ([10] at CB 147).

   8)The applicant feared he would be interrogated and tortured if he returned to Sri Lanka as he has sought asylum in Australia. In September 2010 he participated in a protest at the Villawood Immigration Detention Facility (“VIDF”) and was photographed on the roof with numerous other asylum seekers. This image had been published in Sri Lanka. The applicant also spoke to a reporter from a Sinhalese language newspaper at the conclusion of the protest, however he did not know whether this interview was published. As a result of the newspaper image the Sri Lankan Criminal Investigation Department (“CID”) went to his mother’s home. Although she was not present, his neighbours identified him as the individual in the picture. As a result his “… life will definitely be in danger” if he returned to Sri Lanka ([11] at CB 147 to [12] at CB 148).

6. The “second” reviewer recommended on 24 August 2011 that the applicant was not a person to whom Australia owed protection obligations (CB 189 to CB 222). His findings are set out in his record of assessment and recommendation ([117] at CB 214 to [174] at CB 221), a copy of which was provided to the applicant on 26 August 2011.

7. The reviewer found that the applicant had suffered some discrimination while working as a taxi driver ([123] at CB 215). However, even though the applicant had “amplified his claims”, the reviewer was unable to accept that the discrimination suffered by the applicant was sufficiently harmful to amount to persecution ([128] at CB 215 to CB 216).

8. Given the inconsistencies and “successive expansions” of the applicant’s claims, the reviewer did not accept that the applicant was beaten by other taxi drivers in 2008, nor that his car was burnt

   
   

   ([142] - [143] at CB 217).

9. In the circumstances, the reviewer afforded no weight to the supporting letters provided by the applicant’s representatives ([144] at CB 218, [153] at CB 219).

10. He found that, on its own, being a young Tamil male would not result in the applicant being suspected of being an LTTE member or supporter ([155] at CB 219). As such, he did not accept his claim to fear persecution on this basis ([166] at CB 221).

11. The reviewer found that he could have regard to the applicant’s involvement in the VIDF protests as there was another motivation for his involvement, other than simply wishing to strengthen his visa application claims (although that was one purpose) (s.91R(3) of the Act). However he found that the applicant’s participation in that protest would not cause him to be targeted, as the applicant was not identifiable in any of the relevant images ([157] at CB 220). Further, the reviewer did not accept that he would be persecuted because he had sought refugee status overseas or been sent back from a foreign country ([166] at CB 221).

12. Finally, the reviewer did not accept that the applicant’s friends had been questioned about his whereabouts, nor his family approached by the CID ([168] – [169] at CB 221).

The Application to the Court

1. The application to the Court, made on 19 September 2011, was subsequently amended on 1 November 2011.

2. The amended application sets out the following grounds:

   “1. 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 and alternately the Independent Merits Reviewer denied the applicant procedural fairness by not considering the applicant’s mental health condition prior to making an adverse credibility finding.

   [Particular provided.]

   2. The Independent Merits Reviewer erred in not putting findings on doubtfulness of genuineness of the medical certificate, as in paragraph 143 of the decision record, to the applicant for comment, and thereby denied the applicant procedural fairness

   3. The Independent Merits Reviewer erred when he made findings in paragraphs 143, 144 and 153 of the decision record that he would give no weight to material corroborative of the applicant’s claims, of which one can be substantiated by physical injuries known to him.

   4. 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 claim.

   [Particular provided.]

   5. The Independent Merits Reviewer erred in paragraph 157 of the decision record by making a speculative finding that the applicant is not identifiable in photographs taken of him whilst he was participating in a roof-top protest at the Villawood Immigration Detention Centre.

   6. The Independent Merits Reviewer denied the applicant procedural fairness by failing to consider integers of the applicant’s claims in making an adverse finding, namely that the applicant claimed that he was at a heightened risk, and would therefore suffer serious harm at the hands of the Sri Lankan authorities if he is returned to Sri Lanka, on the cumulative basis of him being a young Tamil male who had departed illegally, and, being a failed asylum seeker with a raised profile as a consequence of his participation in a roof-top protest at Villawood Immigration Detention Centre, and later being identified and interviewed by a Singhalese newspaper in Australia.

   [Particulars provided.]”

Before the Court

1. Before the Court the applicant was represented by Mr M Gibian of counsel. The respondent Minister was represented by Mr J Smith of counsel.

2. The application, as amended, sought injunctive relief restraining, amongst others, the respondent Minister from relying on the reviewer’s assessment and recommendation. It also sought a declaration by the Court that the reviewer’s recommendation was not made according to the law. There was no dispute between the parties that the Court had jurisdiction to hear the application in light of the injunctive relief sought and could subsequently make the declaration sought if relevant legal error was found (with reference to M61/M69).

1. The following was before the Court as evidence:

   1)The Court Book.

   2)The affidavit of Ms Michaela Byers, solicitor, made on 14 November 2011, annexing a transcript (“T”) of an interview with the applicant by the reviewer (with no objection).

2. The applicant sought leave to file in Court, and read, three affidavits:

   1)The affidavit of Ms Paula Farrugia, registered psychologist, made on 7 January 2012. Annexed to that affidavit was a psychological assessment report (“F”) of the applicant, completed on 2 January 2012, and said to be based on interviews with the applicant conducted on 20 and 29 December 2011.

   2)The affidavit of Ms Byers of 10 March 2012, which sought to explain Ms Farrugia’s absence from the Court. It was said that she had been on “sick leave” and that a “backlog of appointments” prevented her from coming to Court (“the first affidavit of Ms Byers of 10 March 2012”)

   3)The affidavit of Ms Byers of 10 March 2012 annexing a copy of a NSW Service for the Treatment And Rehabilitation of Torture and Trauma Services (“STARTTS”) psychological report of the applicant (“the second affidavit of Ms Byers of 10 March 2012”).

3. The respondent objected to the granting of leave in relation to Ms Farrugia’s affidavit on the bases of relevance and the unavailability of Ms Farrugia for cross-examination.

4. The applicant relied on D.C.T. v John Barnes and D.C.T. v Judith Barnes (No.2) [2008] FMCA 1229 where Lucev FM (at [32] – [33]) dealt with the relevant provisions of the Federal Magistrates Court Act 1999 (Cth) (s.64) and Federal Magistrates Court Rules 2001 (Cth) (r.15.29A).

5. I provisionally admitted the evidence of Ms Farrugia but ultimately, for the reasons set out below, gave no weight to the report as it did not assist with the relevant issue before the Court.

6. The affidavits of Ms Byers of 10 March 2012 were treated in the same fashion and provisionally admitted.

The Grounds of the Application

1. Grounds two and five of the amended application were not pressed at the hearing. Mr Gibian explained that the applicant’s case revolved around three areas of concern:

   1)Ground one: the psychological state of the applicant.

   2)Ground three: the treatment by the reviewer of corroborative documents provided to him by the applicant.

   3)Ground four and six: the treatment of country information by the reviewer, and whether relevant findings involving country information dealt with the claims as advanced by the applicant.

Ground One

1. Ground one of the amended application asserts that the applicant was denied a fair opportunity to present his case because of mental impairment, and was denied procedural fairness because the reviewer did not consider the applicant’s mental health condition prior to making an adverse credibility finding.

2. The applicant relied on the STARTSS report (annexed to the second affidavit of Mr Byers of 10 March 2012), and a Psychological Assessment Report drafted by Ms Paula Farrugia, dated 2 January 2012 (annexed to her affidavit of 7 January 2012).

3. The report of Ms Farrugia was not before the reviewer. It was clearly prepared, and finalised, after the date of the reviewer’s assessment record. The Minister conceded that such subsequently produced medical evidence may be admissible. The view was that an inability to give evidence at an interview can be determined by later provided evidence.

4. Given the Minister’s concession, it is not necessary to consider that, for example, in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 (“SCAR”) (said by the Minister now to be analogous in making the concession) the psychologist’s report in question had actually been made at a time before, or at least contemporaneous with, the time at which the applicant in that case appeared before the decision maker
   (see at [7] – [8]). While the decision maker did not have the report at the time of the hearing, or subsequent consideration, it nonetheless was in existence at the relevant time. Here, clearly, the report by Ms Farrugia was made some months later.

5. It was similarly said that the argument advanced in the report in the current case is akin to subsequent evidence of inadequate interpretation at hearing or at interview. That evidence would relate directly to what was said, or not said, at that event. In my view this is distinguishable from an assessment of an applicant’s mental condition some time after the hearing or interview. But, in any event, that is a consideration for another day given the Minister’s concession.

6. The STARTTS report was clearly in existence prior to the reviewer’s interview and assessment. It is dated 29 May 2010. In this sense it is analogous with the report in SCAR. Further, as also in SCAR, there is no evidence that this report was before the reviewer, made available to him or even adverted to before him.

7. In any event, Mr Gibian’s submission was that the reports should be read together as the report by Ms Farrugia develops, and gives substance to, the earlier STARTTS report and gives a temporal bridge as to the applicant’s mental condition before and after the interview with the reviewer.

8. The argument was that the applicant, as at May 2010, was diagnosed as suffering from symptoms of post-traumatic stress disorder and depression (see the STARTTS report at p 6).

9. Ms Farrugia’s report contains a diagnosis of the applicant that he was suffering from a “major depressive disorder” and “… suffers with symptomology consistent with that of post-traumatic stress disorder (PTSD). Standardised testing revealed cognitive deficit, memory and processing speed impairments” ([12.0.5] at F 17) (see also [12.0.6] at F 17 to [12.0.8] at F 19). This was said to have expanded on similar findings in the STARTTS report.

10. The reviewer found adversely to the applicant. The applicant’s submission to the Court was that this was derived from the reviewer’s findings to the effect that the applicant did not respond intelligibly to matters put to him, alleged inconsistencies in his evidence, and a lack of satisfaction of the answers given (see for example [120] at CB 214, [134] at CB 216 to [135] at CB 217, [138] at CB 217 and [150] – [151] at CB 219).

11. Based on this, the attack therefore is that the applicant was denied procedural fairness at the interview because he was not afforded a fair opportunity to present his case. The applicant gave his evidence in circumstances where there was an impediment to him giving evidence, and the reviewer relied on his responses. That impediment was said to be the psychological condition from which he was suffering at the time.

12. The applicant relied on SCAR for the proposition that once the reviewer invited the applicant to the interview for the purpose of allowing him to put his claims, and to respond to matters of concern to the reviewer, which was in discharge of his procedural fairness obligations to the applicant, then the invitation should have been for a “fair hearing”. Noting that in SCAR, as in the current case, the relevant decision maker was unaware of the psychological condition. The applicant however did not receive a fair hearing because of his psychological condition. That was a denial of procedural fairness.

13. The Minister agreed with the applicant’s oral submissions to the effect that what would be needed for the applicant to succeed is that the cognitive, or mental, condition of the applicant, at the relevant time, did not permit the applicant to meaningfully take part in the interview.

14. Mr Smith referred the Court to the approach taken by Driver FM in SZQLZ v Minister for Immigration & Anor [2012] FMCA 1 (“SZQLZ”), a case which also concerned a recommendation made by a reviewer that the applicant should not be recognised as a refugee (at [1]). One of the issues in that case was whether the process before the reviewer was “… procedurally unfair by reason of the applicant’s mental disability” (at [23]).

15. His Honour noted, as is common with this case, that s.425 of the Act (dealing with the invitation to a hearing by the Refugee Review Tribunal) had no application to cases of this type (see SZQLZ at [38]). I respectfully agree with Driver FM that, in these circumstances, the issue of procedural fairness, as raised also by the applicant now, must be considered with reference to the general law, and not to the procedural matters in the Act (Div.4 of Pt.7 of the Act) relevant to the conduct of a review by the Refugee Review Tribunal (“the Tribunal”).

16. In this regard also reference was made to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 (“SGLB”), in particular at [19] per Gleeson J:

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

17. The Minister also relied on Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575, arguing that the general law approach is consistent in this regard with the approach in relation to s.425 of the Act.

18. At the centre of the Minister’s response was that the relevant question arising from the applicant’s complaint is not whether the applicant may have been able to give a better account of his claims and evidence, but whether the applicant was able to give evidence and take part in the proceedings.

19. There are factual differences as between the above authorities and the current case. In SGLB and SZQLZ the decision makers in both cases had before them evidence as to the applicant’s psychological, or mental, condition. In the latter this was contained in a STARTTS report.

20. In the current case, similar to the circumstances in SCAR, the reviewer, on the best view of the evidence, did not have the STARTTS report before him, nor obviously the report of Ms Farrugia. Nor any other such report.

21. However, in relation to the test to be applied, it is the case that in SCAR the Court, at first instance, found as fact that, even though it was not known to the Tribunal, the applicant was not in a fit state to give his evidence and was not fit to represent himself before the Tribunal and, therefore, he was denied procedural fairness.

22. While the reasoning in SCAR was not challenged in the approach adopted in SZNVW (see at [31] per Keane CJ and at [37] per Emmett J), SCAR was distinguished on the basis that the applicant in SZNVW did seek to rely on psychological problems to explain the perceived unsatisfactory elements in his evidence (SZNVW at [17] – [18]).

23. However the applicant in the current case did not so seek before the reviewer to rely on psychological problems to explain elements in his evidence which were pointed out to him. This, in that sense, brings the current case on this point closer to SCAR.

24. But, even in the circumstances, the authorities to which Perram J relevantly had regard (at [73] – [84] of SZNVW), as noted by his Honour, do not necessarily “require total unfitness” (at [85] of SZNVW) for jurisdictional error to be found.

25. In all I agree with Mr Smith that the distinction drawn in SZNVW between an applicant who is unfit, albeit not “totally unfit”, to participate at a hearing before the Tribunal (analogous in this case to the IMR) and an applicant who, by reason of some medical or psychological condition, is placed in a position where their case may not have been presented to the level they may have hoped, is relevant to the current case.

26. The issue therefore is not whether the applicant suffered from a psychological or mental condition, but whether it was such as to cause difficulties that meant he could not meaningfully take part in the interview.

27. Regard must be had, at first, to the report of Ms Farrugia. Such regard must be had in light, as Mr Smith submitted, of what weight can be placed on the report and in the context of what it says about the applicant’s capacity to participate in the interview.

28. The first thing to note is that this report was not a contemporaneous assessment (with the interview) of the applicant’s mental health condition. Unlike in SCAR, the report was prepared some months later.

29. In SCAR, the applicant attended a hearing on 12 February 2002 (at [7]). Four days earlier he had received news of the death of his father. A psychologist saw the applicant on that date. He was monitored by nursing staff. The psychologist reported that on 11 February 2002 she “checked” on the applicant and reviewed notes prepared by the nursing staff. On 12 February 2002 the psychologist reported, amongst other things, that based on personal observation and the contemporaneous observation of other medical staff, she was of the opinion that the applicant (at [8]):

    “… was in no condition to handle this interview. Not only was he totally unable to think clearly, but he was quite unprepared as he did not even know what day it was, and he had no support during the interview. I do not consider that he was given a fair opportunity to present his case. In addition to my involvement over this period [SCAR] was under observation by officers as part of our High Risk Assessment Protocol. He was placed on observations to ensure his safety during this traumatic time and was not discharged until the 25^th February. This is significant because it corroborates my contention that [SCAR] was extremely emotionally fragile.”

30. Ms Farrugia’s report is deficient in a number of significant ways in supporting the applicant’s contention. For reason of those deficiencies and the matters further set out at [72] – [77] below. I agree with Mr Smith that the report should be accorded no weight in the event of its admission into evidence.

31. Ms Farrugia’s “opinion”, concluding her report, is in the following terms ([12.0.8]) at F 18):

    “My clinical opinion therefore is 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 Independent Merits Reviewer …”

32. This can only be compared with the psychologists report in SCAR where the applicant was found to be “… totally unable to think clearly …” (see at [61] above). At best therefore, in the current case, the psychological evidence (if it were to be ultimately admitted) goes only to a high likelihood of an impact on the applicant’s memory.

33. This evidence therefore, at its highest, is not that the applicant was unable to give evidence or to take part in the proceedings, but that he may have been able to give a better account of himself (see SZNVW at [84] – [85]).

34. Ms Farrugia chose not to make herself available for cross-examination. It must be noted that according to Ms Byers’ evidence, Ms Farrugia chose to give priority to other cases, in circumstances where time pressures were created for her following a medical procedure (the first affidavit of Ms Byers of 10 March 2012). That is a matter for Ms Farrugia. But, in the circumstances, what the Court is left with is only the report itself.

35. Had Ms Farrugia been available for cross-examination, it may well have been that a further explanation of the process she conducted could have provided illumination, or explanation, of what appears on its face to be a contradiction between the conclusion and what emerges elsewhere from that report.

36. The report states that “… no additional information was provided to …” Ms Farrugia “… for the purpose of this assessment …” ([1.4] at F 3). That is, the only information before Ms Farrugia was the information provided by the applicant himself, with the assistance of an interpreter, at two interviews with Ms Farrugia conducted over two occasions a week apart and of approximately three and a half hours duration in total ([1.0] at F 3). Therefore, in these circumstances, it can only be that the information set out in the report under the heading “General Background Prior To Arrival In Australia” ([2.0] at F 4 to F 7) was provided by the applicant himself at those interviews.

37. It may well be that there are differences between interviews with a psychologist and interviews with a reviewer, and that this may lead to a different level of expression of past events by the applicant. But there is nothing in the report, which after all was by its own terms focussed on the capacity of the applicant to present his evidence at an interview with the reviewer, to show that any such difference existed.

38. While reference is made to “unfamiliar and/or stressful” situations leading the applicant to “… experience considerable cognitive challenges” ([12.0.07] at F 18), there is nothing to say whether the interviews Ms Farrugia conducted with him were such occasions or not.

39. Other parts of the report suggest that the applicant did find the interviews with Ms Farrugia stressful and that the concentration required during them caused headaches and other symptoms requiring “breaks of 10 - 15 minutes duration” ([12.0.6] at F 18).

40. Notwithstanding this, Ms Farrugia’s report reveals, as clearly arising from its terms, that the applicant was able to remember a substantial level of detail about claimed past events. For example, the number of people on the boat on which he said he left Sri Lanka, ([2.0.2] at F 5) and events of his childhood ([3.0] at F 6). These are not exhaustive.

41. Further, it is not clear whether Ms Farrugia understood that the applicant had already given his evidence to the reviewer some eleven months earlier (21 February 2011 – CB 191).While the “Reason For Report” states: “… this Report will seek to ascertain his mental condition and whether it may have affected his memory and ability to present his evidence to the…” reviewer (F 2), the conclusion as expressed in the opinion referred to above is expressed as being a prediction of the future ([12.0.8] at F 18 and [64] above). [Emphasis added].

42. No reference whatsoever is made in the report to the actual interview conducted by the reviewer, let alone that Ms Farrugia listened to a recording, or read a transcript, of what occurred at that interview. There is not even any reference in the report to indicate that she asked the applicant for a report, or he volunteered his own report, of what occurred at the interview with the reviewer.

43. Noting in this regard that the applicant was represented throughout the conduct of the review by solicitors and migration agents (“Refugee & Immigration Legal Centre Inc” – Ms Cassandra Fernandez (at CB 81) and Mr David Manne (at CB 188)) who therefore could have assisted in providing such a report or transcript to Ms Farrugia. Further, the applicant was clearly represented by a solicitor (Ms Byers) who commissioned the report from Ms Farrugia (F 2).

1. At best therefore, on the reports own statement, Ms Farrugia’s opinion was based on a “Current Mental State Examination” ([1.2] at F 3), current as at the end of December 2011 and how the applicant presented at that time. It says nothing about how that presentation may have impacted on the interview with the reviewer, either beyond mere assertion of a general likelihood in the future, and with no reference at all to any actual impact at the time of the interview with the reviewer eleven months earlier. Nor does the report state how long the applicant may have otherwise presented with these symptoms leading to the assessment in December 2011.

2. It was for this reason, in my view, that Mr Gibian sought to present this report as being linked to the STARTTS “psychological” report of 1 May 2010.

3. However the difficulty for the applicant is that while that report said that he “… displayed some symptoms of Post-Traumatic Stress and clinical depression”, the examination conducted by the STARTTS psychologists:

   “….indicates an appropriate thought flow. His behaviour through the assessment session was appropriate to the situation and he was fully oriented in the space and time. [The applicant] did not present with any signs of perceptual disturbances”

   (p 8 of the second affidavit of Ms Byers of 10 March 2012).

4. While reference is made to memory, it is quite clearly based on the applicant’s assertion:

   “As noted in Psychological Symptoms and Difficulties (section above), [the applicant] reports experiencing traumatic events, avoiding these memories, and has symptoms of heightened physiological arousal …”

   [Emphasis added.]

   (p 8 of the second affidavit of Ms Byers of 10 March 2012).

5. At most, therefore, the STARTTS report of the examination of the applicant is:

   “In summary the clinical interview, together with the Harvard Trauma Questionnaire and the Hopkins Symptom Checklist 25, indicate that [the applicant’s] symptoms are indicative of Post Traumatic Stress and Depression.”

   (p 6 of the second affidavit of Ms Byers of 10 March 2012).

   It says nothing about whether this could have an impact on the applicant’s capacity to present evidence and make submissions at an interview.

6. It is the case that in SZNVW, Perram J, after considering relevant authorities, said (at [84] – [85]):

   “[84] The present case comes then with two difficulties. The first is the fact, agreed by both parties, that the respondent’s disability was somewhat less in extent that that which afflicted the applicant in SCAR; the second, that the respondent’s impairment would not have prevented him, at least at a theoretical level, from seeking evidence of the impairment’s existence to put before the Tribunal.

   [85] The first difficulty gives rise to questions of degree and practical judgment but the authorities do not necessarily require total unfitness. The passage quotes from French J in SZFDE [Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142] above explicitly contemplates the ‘compromise’ of the quality of the substantive hearing in juxtaposition to its loss…”

   [Emphasis added.]

7. The applicant therefore does not necessarily need to show “total unfitness” at the interview with the reviewer to succeed in this ground. But, on the evidence before the Court, at best for the applicant, the two reports indicate, as at May 2010, that symptoms are present and, as at December 2011, those symptoms indicate post-traumatic stress disorder and depression. Nothing is said about whether those symptoms may have presented in February 2011. Nothing whatsoever is before the Court from either of the two reports as to his condition as at February 2011.

8. In these circumstances, it is important therefore to have regard to the other relevant evidence before the Court, evidence about what actually occurred at the interview. That is in two forms: the transcript of the interview and the reviewer’s own account as set out in his record ([58] at CB 198 to [86] at CB 203).

9. Two things may be noted as preliminary to the following consideration. First, the applicant’s adviser was present at the interview (see line 34 at T 1). Second, in light of comments in Ms Farrugia’s report as to the applicant’s presence “… in situations considered to be unfamiliar and/or stressful …” ([12.0.7] at F 18), the applicant had already been interviewed by the “first” reviewer on 14 March 2010 (CB 115), and by an officer of the Minister’s department conducting an initial refugee status assessment on 24 November 2009 (CB 71).

10. I agree with Mr Smith that any plain reading of the transcript of the interview before the reviewer reveals that while the reviewer, for example, put to the applicant that he had not mentioned at an earlier interview his subsequent claims that he engaged in activities with the UNP (see T 5) neither the applicant, nor his representative, made any mention of any memory difficulties in explanation. Quite the contrary. The applicant explained that he had so many problems in Sri Lanka he did not want to state all of them (see T 5 and [64] at CB 198).

11. While there were parts of the interview where the reviewer felt the need to rephrase questions to make them clear (line 20 at T 5 and [65] at CB 198), the applicant was asked to clarify (T 11 and [72] at CB 201), and where the applicant contradicted himself (line 18 – 24 at T 12 and [73] at CB 201), there was nothing from the applicant to even suggest that he had difficulties with his memory or in understanding the questions.

12. Importantly, the transcript shows that the reviewer was patient in his questioning and careful to make sure the applicant understood what was asked of him. The reviewer specifically alerted the applicant to the importance of his being able to understand the questions (line 1 – 11 at T 4):

    “REVIEWER: Do you understand everything so far?

    CLAIMANT: Yep.

    REVIEWER: If you have any problems understanding any of my questions - -

    CLAIMANT: Yeah.

    REVIEWER: - -  don’t be embarrassed, tell me straight away, all right? Because it’s very important that you understand what I’m asking you. Don’t be embarrassed.

    CLAIMANT: Okay.

    REVIWER: It’s very important that you answer the questions truthfully and fully, and that you include all the relevant details. Do you agree to tell the truth and not to provide any false information?

    CLAIMANT: (INTERPRETER): Yes.”

    (See also line 19 – 20 at T 6). 

13. The reviewer specifically invited the applicant to “… comment on in regard to any part of the previous evidence and information”

    
    

    (line 20 – 22 at T 8). At the conclusion of the hearing he was asked whether there was anything else he wanted to say (line 30 – 33 at T 21). Neither the applicant, nor importantly the applicant’s adviser, raised any concerns about the conduct of the interview or the applicant’s capacity to meaningfully participate. Nor was any complaint made subsequently during the duration of the review.

14. Further, and importantly, given what was relevantly said in Ms Farrugia’s report about the applicant’s presentation before her, the reviewer specifically asked (line 20 – 29 at T 14):

    “REVIEWER: I’m just looking at my watch and wondering whether you need to have a break. Do you feel the need to have a break? Do you want to go to the bathroom?

    CLAIMANT: No.

    REVIEWER: You’re okay?

    CLAIMANT: Yeah, okay.”

15. In SZNVW , Perram J held (at [86]):

    “… the Tribunal may be held to have conducted no review in a variety of circumstances falling short of complete incapacity on the part of the applicant to conduct a hearing …”

16. However, the evidence of the transcript of the interview, and the reviewer’s account, provide no basis to say, let alone find, that there “were circumstances falling short of complete incapacity on the part of the applicant” such that the reviewer can be said to have conducted an interview that denied the applicant procedural fairness.

17. Ms Farrugia’s report carries no weight in showing the applicant was denied procedural fairness. The deficiencies in her report referred to above, including the confused temporal focus, provide the basis for this. But even if the applicant is said by Ms Farrugia to have been suffering from some reduced cognitive capacity at the time of the interview, on the face of all of the evidence to the contrary, this is not sufficient to reveal that the applicant was not in a fit state to meaningfully participate at the interview. Given this, the Minister’s objection to the admission of Ms Farrugia’s affidavit should be upheld, and is.

18. In all this ground is not made out.

Ground Three

1. Ground three relates to the following paragraphs in the reviewer’s assessment:

   “[143] I do not accept that he was beaten or stabbed by other drivers in 2008 or that his taxi was burnt by them. I consider that these are inventions aimed at bolstering his case. I give no weight to the medical certificate which I note is dated some two years after the alleged stabbing and was issued at his mother’s request, and in any case refers to only ‘two wounds in his leg’ without further details. I do not accept that Singhalese drivers came to his home and threatened him. I do not accept that in May 2009 a group of 5 drivers and other Singhalese came to his car park stand and gave him a photo of the dead body of the LTTE leader and told him he had to display it in his car, and when he refused, beat him up. I do not accept that he felt obliged not to drive his taxi for periods during 2006 to 2009 because of his fear of harm from Singhalese taxi drivers. I do not accept that the 5 hostile Singhalese drivers are also Army members. I do not accept that since departure from Sri Lanka any Army members have ever come to his family home. I do not accept that his mother or brother were beaten up by Army people. I give no weight in this respect to the medical certificate about his brother, which states only that he was under treatment and needs further attention. I do not accept that he ever had any sort of ‘clash’ with Army members. I do not accept that Army members ever had or have any adverse interest in the claimant.

   [144] Hence I give no weight to the supporting letters from the JP and Mr Saleem, as they are undermined by my findings as to the claimant’s credibility.

   …

   [153] Hence I give no weight to the reference, in the letter from Mr Rifal, to the claimant having been ‘subjected to various intimidations by the ruling party’ as this also is undermined by my findings as to the claimant’s credibility.”

2. The complaint in the ground is that the reviewer gave no weight to material corroborative of the applicant’s claims. In both written and oral submissions the complaint was said to be that the reviewer failed to give consideration to certain corroborative material.

3. A “failure to consider” corroborative material and the assigning of “no weight” to such material are not synonymous, although this was implicit in the relationship between the ground as stated and the ground as argued before the Court. For example, a decision maker can give consideration to a document then, in light of that consideration, chose to assign no weight to it in making findings as to the applicant’s claims.

4. Ultimately, I understood the complaint to be that, having made an adverse credibility finding against the applicant, the reviewer simply refused to consider the corroborative material when making the finding that no weight be afforded to it. That is, that the error was that, in giving no weight to the corroborative material, the Reviewer failed to consider material advanced in support of the applicant’s claims.

5. Those claims, relevantly, were said to be that the applicant had suffered harm in his occupation as a taxi driver from members of the SLFP and from other Sinhalese taxi drivers. Further, that he feared harm from security officials at the airport if he were to return to Sri Lanka because, given their attitude, they would assume that he was connected to the LTTE.

6. The documents were said to be (CB 139 to CB 140):

   1)A letter, dated 7 February 2010, from M L Mohamed Rifal of the UNP (CB 151).

   2)A letter from M S M Saleem JP dated 14 March 2010 (CB 152).

   3)A letter, dated 6 May 2010, from the applicant’s neighbour (CB 153).

   4)A letter, dated 13 March 2010, from Mr M R M Rifkham, a friend of the applicant (CB 154).

7. I should just note that it was unclear whether the applicant’s argument relied on just these documents, or to all of the corroborative material put forward by the applicant. The written submissions refer generally to “corroborative material” and identify “… the letter from Mr Rifal, the letter from Mr Saleem JP, the letter from the applicant’s neighbour and the letter from Mr Rifkham”. In oral submission there was also reference to medical certificates (CB 149 to CB 150).

8. In any event, the applicant’s submission was that while the reviewer made reference to the documents and described them while setting out “Further Evidence” (see [87] at CB 203 to [92] at CB 204), there was no reference to this material in the reviewer’s “Findings and Reasons” other than to say that “no weight” was given to the material. In context therefore, given the latter reference, the complaint appears focused on the letters from “the JP and Mr Saleem” ([144] at CB 218) and the letter from Mr Rifkham ([153] at CB 219).

9. As I understood it, the applicant’s position was that the reviewer rejected the applicant’s claim of relevant past events on the basis, variously, of findings of inconsistency, implausibility and contradictions in his evidence. This was said not to be a comprehensive rejection of the credibility of all of the applicant’s claims ([143] at CB 217 to CB 218). Further, that the reviewer, in the circumstance (not comprehensively rejecting the applicant’s credibility) then gave no weight to the supporting letters ([144] at CB 218).

10. The applicant attacked this approach in two ways. First, that the reviewer should not have considered the question of credibility with reference only to the applicant’s evidence, but should have come to a conclusion as to credibility after also considering the corroborative material. Second, that the letters were “dismissed” (that is as being of no weight) without being considered in their own right. This was explained as there being no consideration of their nature, their terms, and whether they supported acceptance or rejection of the applicant’s claims.

11. The applicant relied on WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 (“WAIJI”) (per Lee and Moore JJ at [26] – [27]) for the proposition that the reviewer fell into error, even in circumstances where he made an adverse credibility finding against the applicant, when he refused to consider the corroborative material in making that adverse credibility finding.

12. Further, that in the absence of material directly impeaching the applicant’s claims, the reviewer could not make an adverse credibility finding without considering the weight to be given to material which tended to support his claims (at [32] of WAIJ).

13. What is immediately apparent is that the circumstances in WAIJ are distinguishable from the current case in a number of significant ways. Further, the propositions articulated by the applicant now need to be understood in light of what the majority actually said in WAIJ, and the context in which that analysis took place.

14. First, the applicant’s attempt to draw on relevantly applicable propositions from WAIJ at [26] – [27] must be considered in light of what the Full Court said it was dealing with. The Court acknowledged the circumstances referred to by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (“Applicant S20”) (per McHugh and Gummow JJ at [49]) that, where an applicant’s credit is comprehensively discredited by findings of dishonesty and untruthfulness, that is likely to negate allegedly corroborative material.

15. The Court in WAIJ distinguished such circumstances from the circumstances before it by finding that it was not open to a decision maker to say that it was not necessary to consider corroborative material “merely because it considered it unlikely that the events described by the applicant occurred” (WAIJ at [27]).

16. In the current circumstances the reviewer’s relevant finding was closer to the situation posited in Applicant S20, than that in WAIJ. The reviewer did not say that the events recounted by the applicant were unlikely to have occurred, but rather that they did not occur. The reviewer plainly found the applicant’s factual account (involving events arising from his claimed taxi activities) to be “inventions aimed as bolstering his case” ([143] at CB 217).

17. The answer to the current complaint however is also to be found on at least a fair, if not plain, reading of the reviewer’s record. I agree with Mr Smith that the reviewer’s record needs to be read holistically.

18. The applicant posits that the reviewer sequentially made adverse credibility findings, and then separately said that he gave no weight to the corroborative material. A number of matters follow.

19. First, it was difficult to understand the applicant’s reference in oral submissions to, and reliance on, Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [28] and [32] – [33]. If anything, this reference assists the Minister. I respectfully understand the Court to have said that it is open to a decision maker to assess credit and then consider what weight is to be given to corroborative material.

20. Second, but on at least a fair reading, I do not agree with the applicant that the reviewer’s reasoning reveals the error asserted, even when the Tribunal’s record is read sequentially. Such expression of reasoning does not, on its own, indicate a failure to take into account the corroborative material, or even a failure to have assessed that material, either in making the adverse credibility finding or in other relevant findings (Applicant S20 at [14] per Gleeson CJ).

21. It is the case that the reviewer’s record is presented under various headings. The applicant’s case rests solely on giving attention only to what is under the heading of “Findings and Reasons” (at CB 214).

22. What the applicant fails to appreciate is that what appears under that heading is the analysis directed squarely to the question as to whether the applicant comes within the Refugee Convention definition of a “refugee”. That is made clear by the reviewer making this very statement at the beginning of that section of the record (see [117] at CB 214).

23. But in my view, it cannot, and should not, be said, given what is actually presented, that what precedes the “Findings and Reasons” is not part of the holistic understanding, presentation and analysis of the applicant’s claims. It is plain that what is set out under the heading “Findings and Reasons” is only given meaning by understanding what precedes it.

24. Relevantly, and in this regard, under the heading “Second IMR Interview” the reviewer states ([58] at CB 198):

    “At the interview I was informed by the adviser that her firm had submitted a further submission with a further statement from the claimant and other documents. I received these documents from IMR/IPAO after the interview; they had been received that day. As I was unable to read them prior to the interview, I list them in the next section under the heading ‘Further Evidence’”

    [Emphasis added.]

25. This, even on its own, strongly indicates that, contrary to the applicant’s assertion, the reviewer sought to present his record in a sequential fashion for ease of presentation. He was clearly cognisant, relevantly, of the supporting documentation and made specific reference to it, even though it had not been received at the time of the “second” interview.

26. I agree with Mr Smith that this indicates that the reviewer had thought about relevant matters in a holistic fashion and then “came back” to write the account of his record of recommendation to the Minister.

27. The corroborative documents are set out under the sub-heading “Further Evidence”. While some care needs to be taken into reading too much into the typeface used for various headings, it is tolerably clear, especially in light of what is said at [58] (at CB 198), that the reviewer saw the submission of these documents as part of the applicant’s presentation of his case at the “Second IMR Interview”.

1. In any event, and further, the reviewer set out the various documents ([87] at CB 203 to CB 204). Had the reviewer stopped there the applicant’s case may have been stronger in some respects. But plainly he did not.

2. What follows at [88] – [92] (at CB 204) is precisely the kind of consideration of the corroborative documents that the applicant now says that the reviewer did not engage in. It is clear that the reviewer had regard to the medical certificates and other letters. He notes that they were in English, and quotes extracts. He notes the sources, or authorship, of the documents. This was not a mere verbatim recording of the contents of the letters. It reveals that they were read, and that some consideration, or analysis, of them took place such that those parts considered to be relevant, in light of the applicant’s account at the interview, were extracted. It is difficult to see how, in these circumstances, the applicant seeks to assert that the reviewer gave no consideration these documents.

3. The “Findings and Reasons” section of the reviewer’s record begins squarely with the expression of the finding that the reviewer did not find the applicant “to be a credible witness” in relation to his claims to be a refugee ([120] at CB 214), this being the central question with which the reviewer was tasked to provide an answer for the Minister ([117] at CB 214).

4. Given what precedes this section, and the presentation of the reasons for rejecting the credibility of the applicant, it is clear that the reviewer’s decision to give “no weight” to the various documents ([143] at CB 217 to [144] at CB 218 and [153] at CB 219) was not done simply by disregarding the documents, but in having looked at and considered the documents both in and of themselves, and as corroboration of the applicant’s factual claims.

5. The reviewer did not fail to consider the documents either in the assessment of the applicant’s credibility or otherwise. He simply refused to assign them any weight. The assignation of weight to such evidence is entirely a matter for the decision maker (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1).

6. I can only agree with Mr Smith that there is no error in giving no weight to such material on the basis that the reviewer’s analysis of the applicant’s own evidence was that this evidence undermined the case the applicant sought to put forward. That is, said to be supported by corroborative evidence, that he had a well-founded fear of persecution (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33]).

7. Ground three is not made out.

Grounds Four

1. The applicant chose to make submissions in relation to ground four and six jointly. For reasons that will become obvious below, it is convenient to deal with each separately.

2. The complaint in ground four is said to arise from the following paragraphs of the reviewer’s analysis ([155] at CB 219 to [156] at CB 220 and [164] at CB 220 to [165] at CB 221) :

   “[155] To begin with, I do not accept that since the end of the conflict, the mere fact of being a young Tamil male would for that reason alone, without further contributing factors, cause a person to be suspected of having been an LTTE member or supporter.

   [156] While the country information is divided on this question, I am guided by the fact that no such assertion is made in the following sources cited above, despite the fact that all of them contain criticisms of the human rights situation in Sri Lanka: Amnesty International ‘Report 2010, the State of the World’s Human Rights: Sri Lanka’, which states that young Tamil males … who have actual or imputed links to the LTTE (my italics) face risk of arrest; International Crisis Group Report: ‘Sri Lanka, A Bitter Peace’, 11 January 2010; US Department of State: 2009 ‘Human Rights Report, Sri Lanka, 11 March 2010.

   …….

   [164] I have considered the reports submitted by the claimant and his advisers about the treatment of returning failed asylum seekers in Sri Lanka, including that by the Edmund Rice Centre. While views on this issue are clearly divided and there have been some reported cases of mistreatment, I do not accept that, in general, returning asylum seekers who are Tamils, including those who have departed Sri Lanka illegally, face a real chance of harm amounting to persecution on return.

   [165] I base this finding on the report by the Danish Immigration Service (DIS), which cites such reliable sources as the British High Commission in Colombo, the Norwegian Embassy and other diplomatic missions in Colombo, the International Office for Migration and the United Nations High Commission for Refugees. The UNHCR, for example, is quoted as stating that some returned failed asylum seekers were interviewed by CID, but there had been no incidents of detention. The observations on this issue in the reports by the UK Foreign and Commonwealth Office and the Australian High Commission in Colombo, are consistent with those in the DIS report.”

3. In essence the applicant’s complaint is that the reviewer approached his task on the basis of needing to choose one set of country information over another, rather than assessing and weighing all of the country information to determine whether or not there was a risk of persecutory harm on return. That is, that the reviewer failed to have regard to all of the country information.

4. The applicant relies on Minister for Immigration & Citizenship v MZYLE & Anor [2011] FMCA 589 (“MZYLE”) at first instance. In that case there was, as in the current case, a range of country information before the reviewer. The Court was reminded that it was the same reviewer.

5. In MZYLE the Court set out how the reviewer approached this particular task in that case (at [37]):

   “This is not in accord with the information provided by the Australian High Commission in Colombo to the effect that there are no procedures in place to identify failed asylum seekers and that the only way that the authorities would be alerted to a failed asylum seeker returning – and I note this would apply to returnees generally – is if the airlines or IOM notified them that a person was a deportee or was being escorted. The report states that a Tamil returned to Colombo after seeking asylum in Australia would therefore be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures.”

   [Emphasis added in MZYLE].

6. The Court then went on to say (at [46] – [47]):

   “[46] The law in this area does not require a decision-maker to ‘come down on one side or the other’. Rather the law requires the decision-maker to first make an assessment of the material and identify the facts and circumstances which they are persuaded to accept or reject and assess the weight to place on each item of evidence. Secondly, in cases involving asylum seekers, the legal test is not limited to whether or not they have proven a particular factual element (such as the application of physical force on a specific occasion), but ultimately requires an assessment of risk in determining whether or not the asylum seeker holds a
   well-founded fear of persecution.

   [47] To approach the task on the basis that a decision-maker has a responsibility to ‘come down on one side or the other’ can only lead to real concern that rather than assessing and weighing the evidence in order to determine which facts and circumstances the decision-maker is persuaded of, (and the weight to be placed on the material in order to properly assess the risk) the decision maker felt forced to make a binary decision and effectively pick one version or the other, even though the decision maker may not be persuaded to the requisite standard that any particular given state of affairs actually exists: the very error committed by the trial judge in Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyd's Rep 1. The assessment of risk is a different finding to a decision as to whether a particular factual element of a cause of action has been established.”

   [Emphasis added.]

7. Much can be said about this. For example, and with respect, I do not accept that Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyd’s Rep 1 (“Rhesa Shipping”) stands for the proposition set out in MZYLE at [47] as being relevant to administrative decision making. With respect, I understood their Lordships in that case to be dealing with the burden of proof in civil proceedings before a Court. That is, in judicial proceedings as opposed to the administrative review by a lay Tribunal of an earlier administrative decision (see for example at 717 – 718 per Lord Brandon of Oakbrook with whom three other Lords agreed (at 714)).

8. The circumstances in MZYLE, as in the current case, are not concerned with the burden of proof in civil proceedings before a Court, but the quite different matter of fact finding by an administrative decision maker in the context of reaching a statutorily imposed requisite level of satisfaction as to whether a prospective applicant for a protection visa, in effect, meets the definition of “refugee” (with reference to Art.1A(2) of the Refugees Convention).

9. To the extent therefore that the reasoning in MZYLE (at [47]) seeks to draw inspiration and support for the proposition enunciated there from Rhesa Shipping, in my view, that is, with respect, plainly wrong, and I would not follow it.

10. While the judgment was upheld on appeal (see Minister for Immigration and Citizenship v MZYLE(No 2) [2011] FCA 1467 (“MZYLE (No.2)”) per North J), this was for reasons other than the matter above. However it is not necessary in the current case to consider whether I should follow the above as a matter of comity.

11. The applicant’s reference before this Court that the same reviewer was involved in both cases, and that both cases involved Sri Lankan nationals, was left undeveloped. If the applicant sought to suggest that the reviewer had a tendency to approach country information involving Sri Lankan applicants in a particular way, then that point was not made out. That is perhaps because such a submission would require more than mere assertion to succeed given that, as Mr Smith correctly pointed out, “tendency evidence” is suspect in and of itself.

12. Mr Gibian also submitted that the same conclusion was reached in both cases, and that generally the same country information was before the reviewer, and he had a range of country information before him but chose to rely only on one set of information.

13. The relevant material common to both cases was said to include a report on Sri Lanka prepared by the Director of the Edmund Rice Centre, which was referenced in the applicant’s advisers’ submissions to reviewer in the current case, with extracts (CB 143). The reviewer acknowledged this reference and report, and other reports mentioned in the submissions, in his reasoning ([164] at CB 220).

14. The applicant referred to the following in the reviewer’s analysis at [164] at CB 220 to [165] at CB 221 (see [129] above).

15. The applicant’s submission is that the reviewer picked “one report” (The Danish Immigration Service report) and relied on that rather than considering a range of material. This was said to have been done in circumstances where he had acknowledged that there was divided opinion. The submission is that he picked one source “to adopt”, and failed to consider the possibility that the applicant would, in light of all the material, be persecuted on return to Sri Lanka.

16. Any plain, let alone fair, reading of the reviewer’s reasons leads to a rejection of the applicant’s submission.

17. First, the two assessment and recommendation records are critically different in one material particular. The reviewer’s phraseology impugned in MZYLE does not appear in the current case (“come down on one side or the other”, see [133] above).

18. Second, it is the case that the reviewer did have before him a range of materials. It is also the case that the reviewer recognised and accepted that “views on this issue [that is the treatment of failed asylum seekers on return to Sri Lanka] are clearly divided”. The reviewer had before him some country information which supported the applicant’s submission that he would face persecutory harm on return because he applied for asylum in Australia, and other information which did not support that submission (even if this was to be seen to be a part of the applicant’s claims to be given protection in Australia).

19. Absent the impugned sentence indentified in MZYLE, the assessment and recommendation record in the current case reveals that the reviewer simply preferred one set of country information over another in coming to the finding that, in general, failed asylum seekers returning from overseas, including those who departed Sri Lanka illegally, would not face a real chance of persecutory harm on return.

20. There is nothing remarkable in the approach adopted by the reviewer in the current case. It is simply an example of the assigning of weight to various pieces of country information to reach a finding of fact. A finding which was clearly, and certainly reasonably, open to the reviewer on what was before him.

21. In the circumstances there is no error in the reviewer preferring the Danish Immigration Service report, which relied on what the reviewer said were “reliable sources”, including the United Nations High Commission for Refugees, over the report of the Director of the Edmund Rice Centre.

22. I can only agree with Mr Smith that, in the current case, the applicant has equated, and in my view confused, the making of a finding in preferring some country information over other information based on an understanding of a range of that country information, with the notion of a preconceived view of a requirement to come down on one side or another. It was the latter which was found to be the error in MZYLE. It does not exist in the current circumstances. In the current case in the reviewer considered the conflicting country information. He was simply not persuaded in favour of the applicant.

23. The ground is therefore not made out.

Ground Six

1. Ground six as stated in the amended application asserts that the reviewer failed to consider aspects of the applicant’s claims. This was said to have occurred in finding adversely to the applicant in relation to his claims of being at risk because he was a young Tamil male who had departed Sri Lanka illegally, and was a failed asylum seeker with a raised profile as a result of his participation in a protest at the VIDF, and later being interviewer by a Singhalese newspaper in Australia.

2. When regard is had to the particulars, and especially the applicant’s submissions, it appears the complaint is not so much a failure to consider integers of an applicant’s claims as identified in such authorities as Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, but rather a complaint with the way the reviewer was said to have determined the applicant’s refugee claims.

3. That is, that the reviewer assessed the applicant’s claims without addressing the particular risk to the applicant on return in the particular circumstance said to have been presented. The complaint is that the reviewer approached this part of his task with general observations about returned asylum seekers as a general matter, rather than with reference to the applicant’s individual circumstances.

4. Here the applicant relied on MZYLE (No.2), in particular at [33] – [34] per North J:

   “[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.

   [34] The first respondent’s argument should be accepted. There is no indication in [160] that the reviewer was seeking to find facts as part of a process of determining whether the appellant faces a real chance of persecution as a returned asylum seeker. The language of the reasons concerning the scrutiny by government authorities in Sri Lanka of returned asylum seekers suggests that the relevant enquiry was concluded once the reviewer determined whether, as a fact, failed asylum seekers were subject to scrutiny at the airport. The reviewer did not conclude the discussion with any judgment of the future risk of scrutiny to the appellant as a young Tamil male.”

5. The argument was that that consideration was in relation to the “same paragraph” in that case as is now before this Court (MZYLE (No.2) at [29]):

   “This ground concerns the reviewer’s approach in [160] of his reasons. After referring to country information from the Edmund Rice Centre (at [158]) and the Australian High Commission (at [159]) concerning the scrutiny by government authorities of returned asylum seekers, the reviewer said:

   This is an example of the divergent views in the independent country information about various aspects of the situation in Sri Lanka, including this issue. This presents a significant challenge for decision makers. However, it is the decision maker’s responsibility to come down on one side or the other of this argument and I accept the advice of the Australian High Commission whose role is to be informed in detail on such matters in order to advise policy-makers – that is, ministers and officials – in Australia. I accept 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 and would be subject to the same screening procedures.
   [emphasis added]”

6. In further submissions the “exact paragraph” became a reference to the reasoning in this case over a number of paragraphs ([154] – [155] at CB 219 and [157] – [165] at CB 220). .

7. I ultimately understood the complaint to be that the approach of the reviewer in the current case is, at least, similar to what was before North J. Further, that the focus on the general, rather than the specific circumstances of this individual applicant and the real risk of harm on return, can be seen in the reasoning process with was directed at whether the:

   “… mere fact of being a young Tamil would for that reason alone … cause a person to be suspected of having been an LTTE member or supporter …” ([155] at CB 219)

   [Emphasis added.]

   Or whether,

   “ … in general, returning asylum seekers who are Tamils … face a real chance of harm amounting to persecution on return …” ([164] at CB 220)

   [Emphasis added.]

8. To the extent that the applicant now seeks to draw a parallel between what the reviewer in this case did here, and what he did in the case before North J, such an approach is fruitless in revealing legal error. That is for similar reasons as considered in relation to ground four above.

9. Further, while there are some extracts in MZYLE (No.2) of the reviewer’s reasoning, that judgment does not contain the entire record, nor indeed the reviewer’s “Findings and Reasons”.

10. It is trite to say that the Court must have regard to the evidence before it. In the current case, the Court has, as part of the evidence, the reviewer’s entire record of the review and the transcript of the interview with the applicant. It is to this to which regard must be had in the first instance. Of course, the Court must also bear in mind the error found by North J in MZYLE (No.2) and, if the current assessment and recommendation record reveals similar reasoning to that in MZYLE (No.2), apply his Honour’s expression of the law to that reasoning.

1. In the current case I agree with Mr Smith that in resolving the complaint in this ground, regard must be had, at least, to the entirety of [154] (at CB 209) to [171] (at CB 211) of the reviewer’s record, and not just to selected phrases or parts of that consideration.

2. There were a number of integers to the applicant’s claims. Those relevant to this ground are that the applicant feared persecutory harm if he were to return to Sri Lanka, cumulatively, on the grounds of being a young Tamil male, who departed Sri Lanka illegally, and who would be seen as a failed asylum seeker. Further, and in addition, he would attract the attention of authorities at Colombo airport, be at risk of harm because he had applied for refugee status in another country, and had participated in a well publicised roof top protest at the VIDF in Australia.

3. The applicant’s ground does not succeed in revealing legal error. For the applicant to succeed in this regard, and in relation to his reliance on MZYLE (No.2), he would have to show that the circumstances presented here were, at least, similar to what was presented in MZYLE (No.2) such that the proposition applied by the Court there must (given its binding nature on this Court) be applied here.

4. However the current case is clearly distinguishable on the basis that, unlike as found in MZYLE (No.2), the reviewer in the current case demonstrated that he understood the ultimate question to be answered and focused on the assessment of the risk of persecutory harm if the applicant were to return to Sri Lanka in the reasonably foreseeable future.

5. The following are of importance. First, the reviewer did set out the definition of “refugee” in his report in unexceptional terms (see [4] – [7] at CB 192). Second, the ultimate expression of his adverse findings in rejecting the applicant’s claims are all plainly focused on “… if the applicant returns to Sri Lanka” ([166] at CB 211) and “on return” ([167] and [168] at CB 221). Unlike as it appears in MZYLE (No.2), the focus of the assessment of risk in the current case was on “… now or in the reasonably foreseeable future” ([170] – [171] at CB 221).

6. It appears that the reviewer in MZYLE (No.2) “… 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” (MZYLE (No.2) at [33]). In the current case the reviewer, distinguishably, moved on to consider the question with a specific focus on this specific applicant returning to Colombo airport (see at [154] at CB 219 and [166] – [171] at CB 221).

7. While some of the “offending” phrases may sound similar (“generally speaking” ([33] of MZYLE (No.2)) and “in general, returning asylum seekers …” ([164] at CB 220)), it is clear that the reviewer in the current case sought to move from the general to the specific and from the past to the likelihood of risk in the future.

8. After all, it must be noted that, while the test of the risk for persecutory harm is focussed on a real chance of it occurring in the future (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379), findings as to past events can provide the basis from which to assess the well foundedness of the fear of harm as it relates to the future (see Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 575:

   “Determining whether there is real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

9. I do not, respectfully, comprehend that what was said by the Court in Guo is restricted only to past events specific to an applicant’s actual experience. It is allowed that what has generally occurred in the past may be a reliable guide as to what may likely occur in the future.

10. I respectfully understand what was said in MZYLE (No.2) to be that such an assessment cannot be left at the past and in the general. That is, ultimately, general past events must be referrable to the likelihood of the specific instance of claimed fear of harm in the future.

11. On at least a fair, if not a plain, reading that is what the reviewer has done in the current case. I cannot see that he did not apply the correct test. Nor, given the terms of the actual ground as stated, that, while he considered each of the relevant elements separately, he did not consider the risk of harm on a cumulative application of the applicant’s claims and fears (see [170] at CB 221).

12. Ground six is not made out, either as stated, or as argued before the Court.

Conclusion

1. None of the applicant’s grounds as stated, or as explained, reveal legal error on the part of the reviewer’s recommendation to the Minister. In such absence, the application, as amended, should be dismissed. I will make an order accordingly.

I certify that the preceding one-hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  29 May 2012