SZRHL v Minister for Immigration
[2018] FCCA 2369
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRHL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2369 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal overlooked evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; (2013) 136 ALD 641 WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 |
| First Applicant: | SZRHL |
| Second Applicant | SZRHM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1481 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 February 2018 |
| Date of Last Submission: | 16 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| Counsel for the Applicants: | Ms F McNeil |
| Solicitors for the Respondents: | Mr T Galvin of Minter Ellison |
ORDERS
Leave to amend the application made on 10 June 2016 is refused.
The application made on 10 June 2016 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $8,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1481 of 2016
| SZRHL |
First Applicant
| SZRHM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 June 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 16 May 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
The evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicants (“the Court Book” – “CB”, “AE1”).
Background
The applicants are husband and wife. Both are citizens of Bangladesh (CB 4 and CB 19). They arrived in Australia as holders of student visas in March 2007 (CB 93). They were granted further student visas on 14 May 2009. Those visas were cancelled on 17 June 2010. The applicants then remained in Australia without authority (CB 94.1).
On 28 February 2011, the applicants applied for protection visas (CB 1 to CB 51). Only the first applicant made claims to fear harm. The second applicant applied as a member of the first applicant’s family unit. The first applicant’s claims were set out in a Statutory Declaration dated 8 January 2011 (CB 39 to CB 42). He was interviewed by a delegate of the Minister on 20 April 2011 (CB 95.3). The application for the visas was refused by the delegate on 25 May 2011 (CB 82 to CB 101).
On 19 June 2011 the applicants applied for review to the then Refugee Review Tribunal (CB 102 to CB 105). On 28 February 2012 the Tribunal affirmed the delegate’s decision (CB 279 to CB 302). The applicants unsuccessfully sought judicial review in this Court. However, on appeal, the Federal Court remitted their case to the Tribunal for reconsideration (see SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; (2013) 136 ALD 641 (“SZRHL”) and see CB 303 to CB 305).
The applicants appeared at hearings before the reconstituted Tribunal on 29 January 2015 (CB 459 to CB 461) and on 6 May 2016 (CB 539 to CB 541) (the Tribunal was differently constituted on each occasion). The applicants were assisted by the same registered migration agent at each hearing (CB 459 and CB 539). On 16 May 2016, their migration agent provided a report to the Tribunal from a Mr H R Dadgostar, a registered psychologist, dated 12 May 2016 (“the psychologist’s report”) (CB 612 to CB 617).
The Tribunal affirmed the delegate’s decision on 16 May 2016 (CB 624 to CB 637). It found that the first applicant was not a witness of truth ([69] at CB 635 to CB 636). It relied on a number of findings in reaching this conclusion.
One, the first applicant had claimed to have been engaged in full-time political activities in Bangladesh for some years before coming to Australia. Yet, in his application for the student visa (by which he ultimately came to Australia), he stated that he had a full-time paid job for nine years before leaving Bangladesh (see [36] at CB 630 to [45] at CB 632).
Two, the Tribunal found the first applicant’s evidence about having “false charges” made against him to be implausible, vague and that the claims were not mentioned in his Statement of Claim. Further, the Tribunal found that his evidence about the “false charges” varied at different stages of the processing of his application (see [46] at CB 632 to [55] at CB 633).
Three, the first applicant advanced claims to protection before the Tribunal which had not been previously raised by him. The Tribunal found these to have been “concocted” to “bolster” his claims for protection ([56] at CB 633 to CB 634 to [59] at CB 634).
Four, the first applicant delayed seeking protection until almost four years after his arrival in Australia ([60] at CB 634 to [65] at CB 635).
Five, the first applicant claimed to have worked for a candidate in parliamentary elections in Bangladesh in 2001. The Tribunal found his evidence about the relevant constituency was inconsistent with country information before it. The Tribunal found this further undermined the credibility of his claims ([66] to [68] at CB 635).
The application to the Court
The application to the Court made on 10 June 2016 contains five unparticularised grounds. The applicants were not legally represented at this time. An order was made by a Registrar of the Court on 28 July 2016 giving the applicants the opportunity to file any amended application on or before 25 August 2016. No such application was filed by this date. The matter was ultimately set down for final hearing on 16 February 2018.
On 6 February 2018, in anticipation of the hearing, the applicants filed written submissions drafted by counsel (“the applicants’ first written submissions”). The written submissions indicated that at the hearing, the applicants would seek leave to rely on an amended application, the terms of which were attached to the submissions.
The applicants’ first written submissions understood, properly, that given the late attempt to rely on the proposed amended application, the applicants would need leave to amend and would seek such leave at the hearing.
The applicants also properly understood that whether such leave was to be granted depended, in part, on the merits of the grounds of the proposed amended application.
The hearing proceeded on that basis. However, I note that there was no explanation given by the applicants as to the delay in making their amended application, let alone any evidence in support.
In any event, the proposed grounds were in the following terms:
“1. The Administrative Appeals Tribunal (‘the Tribunal’) found at [45] that ‘the applicant was employed as a marketing officer in the garment industry from the time he left university until just before he came to Australia’. On a fair reading of the Tribunal’s reasons for decision, the Tribunal was not confident about this finding. In the circumstances, the Tribunal was obliged to take into account the possibility that the applicant’s evidence that he was unemployed was true. The Tribunal’s failure to take this into account involved jurisdictional error.
2. The applicants provided a psychologist’s report to the Tribunal in which the psychologist stated that the applicant husband’s ‘depressive and anxiety symptoms appear to have developed as a direct consequence of the emotional distress, caused by fear of execution if he remained in Bangladesh’. This opinion was corroborative evidence of the husband’s claims. The Tribunal overlooked this evidence in making its decision. Where the Tribunal overlooks material evidence, this is a jurisdictional error.”
Consideration
At the hearing, the applicants were represented by counsel. The Minister was represented by a solicitor.
The applicants advised that proposed ground one was not pressed.
Proposed ground two asserts that the applicants provided a psychologist’s report to the Tribunal. The psychologist’s report stated, in part (CB 616.8):
“[The first applicant’s] [d]epressive and [a]nxiety symptoms appear to have developed as a direct consequence of the emotional distress, caused by fear of execution if he remained in Bangladesh.”
The proposed ground contends that this was “corroborative evidence” of the first applicant’s claims. This is said to be corroborative because it was an “expert opinion” that the first applicant had a psychological condition that was “consistent with his claimed fears of harm” ([37] of the applicants’ first written submissions).
The jurisdictional error is said to arise from the Tribunal’s failure to refer to this “aspect” of the psychologist’s report in its summary of it in its decision record. The Tribunal therefore “overlooked” significant evidence (WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 (“WAFP”), SZOBS v Minister for Immigration and Citizenship [2010] FCA 1000; (2010) 117 ALD 135 and VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 (“VAAD”) and see [38] of the applicants’ first written submissions).
Before the Court, the applicants drew attention to [76] (at CB 637) and [77] (at CB 637) of the Tribunal’s decision record, where the Tribunal was said to have “dealt” with the psychologist’s report. Those paragraphs are as follows (see CB 637):
“[76] At the hearing, the applicant’s migration agent asked the Tribunal to delay its decision to allow time for the applicant to seek a report from a psychologist. The Tribunal agreed, and the applicant has since provided a copy of a report (dated 12 May 2016 and based upon a consultation on the same day) from a registered psychologist.
[77] It is clear, from the terms of the report, that it is almost exclusively based upon the applicant’s personal account to the psychologist of his background and history. The report refers to a psychometric assessment derived from a ‘10-item self-report questionnaire’ completed by the applicant. Given that the Tribunal has found above that the applicant is not a witness of truth, the Tribunal does not give any weight to the psychologist’s report as evidence in support of the applicant’s claims about events in Bangladesh.”
As set out above, the Tribunal had found adversely to the first applicant’s credit. The complaint before the Court was that the Tribunal gave “no weight” to the psychologist’s report on the basis of its earlier adverse finding as to the first applicant’s credibility, without “adequately” considering the evidence of the psychologist’s report.
The applicants relied on the following authorities to make good that argument.
One, SZOOR v Minister for Immigration and Anor [2011] FMCA 253, a judgment of this Court, at [77]:
“The applicant acknowledges that in Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 (‘MZYHS’), Kenny J rejected the applicant’s contention in the case before her Honour that the Tribunal erred in not considering a psychologist’s report which corroborated the applicant’s account of past persecution.”
Two, Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28]:
“However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.”
The applicants’ reliance on these authorities, appeared to be for the purpose of arguing that the Tribunal “overlooked” the “corroborative evidence” contained in the psychologist’s report, and therefore did not properly consider the first applicant’s claim to fear harm if he were to return to Bangladesh.
The “corroborative evidence” was, in particular, identified before the Court as being the following extract from the psychologist’s report (CB 616 to CB 617):
“Psychometric Assessment
Kessler Psychological Distress Scale (K10)
The Kessler-10 (K10) is a 10-item self-report questionnaire intended to yield a global measure of ‘psychosocial distress’ based on questions about the level of anxiety and depressive symptoms in the most recent 4-week period.
The K10 LM has been shown to be a very good screening tool for detecting levels of distress that are associated with an independently determined current DSM or ICD diagnosis of an anxiety disorder.
[The first applicant’s] score of 43 on the K-10 questionnaire is indicative of a High level of psychological distress.
The scoring range
10-19: The score indicate that the client or patient may currently not be experiencing significant feelings of distress.
20-24: The client or patient experience mild levels of distress consistent with a diagnosis of a mild depression and/or anxiety disorder.
25-29: The client or patient experience moderate levels of distress consistent with a diagnosis of a moderate depression and/or anxiety disorder.30-50: The client or patient experience high to severe levels of distress consistent with a diagnosis of a severe depression and/or anxiety disorder.
Clinical Opinion
Based on the information gathered during the assessment, his reported symptoms are suggestive of the presence of high levels of Clinical Depressive symptoms. He also reported high levels of Anxiety symptoms that are commonly associated with a diagnosis of Adjustment Disorder with Mixed Emotions (Anxiety & Depression). He continues to experience these depressive and anxiety symptoms, as evident from his current reported symptoms and the K-10 results.
[The first applicant’s] Depressive and Anxiety symptoms appear to have developed as a direct consequence of the emotional distress, caused by fear of execution if he remained in Bangladesh. This distress was further exacerbated by his feelings of worthlessness, because he cannot be present to fulfil his role of eldest son of the family, nor provide adequately for his wife and child, here in Australia, and further compounded by feelings of loneliness and isolation, due to his absence from his family and friends· in Bangladesh. Given his life pressures, his prior protective family background and good peer support in Bangladesh, it is not unexpected that he has found it more challenging and difficult to continue with his good mental health, particularly after the overwhelming threat to be killed if remained in Bangladesh, and now his fear serious concern for his wife and child.
In the light of the above findings, it appears that his anxiety and depressive symptoms have affected his mental health.”
[Emphasis added.][Errors in the original.]
In this context, the applicants also referred the Court to WAFP at [21]:
“However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].”
Further, to VAAD at [79]:
“However, an assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka. As Gleeson CJ commented in Aala at [4]:
‘…Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive…’”
In short, the submission was that the Tribunal was provided with the psychologist’s report after the hearing. The Tribunal should have reconsidered its findings set out earlier in its decision record on the first applicant’s credibility, in light of the psychologist’s report. In particular, the Tribunal should have reconsidered the matter of “truthfulness” of the first applicant’s claims, in light of the “medical evidence”.
A number of preliminary points need to be made about the applicants’ argument, and its relevance to the circumstances of this case.
One, the first applicant made no claim to fear harm in Bangladesh because of any mental health issue. That fear was said to arise from his political involvement and the incidents that he claimed had occurred in Bangladesh.
Two, the submission now is that the psychologist’s report should have been considered by the Tribunal in the context of whether the impact of the first applicant’s mental health issues, could have affected the Tribunal’s assessment of the credibility of his evidence and claims.
The applicants’ proposed ground lacks merit such that the Court should grant the applicants leave to amend their application.
First, the terms of the proposed ground itself assert that the jurisdictional error arose because the Tribunal “overlooked” relevant “corroborative evidence”. That is, the psychologist’s report.
That assertion cannot be sustained in light of the evidence before the Court. The assertion that the Tribunal “overlooked” a piece of evidence can only properly be understood as an allegation that it did not consider it. That is, it did not turn its mind to the psychologist’s report and its contents, and did not engage on an intellectual level with it.
Any plain reading of the Tribunal’s decision record at [76] (at CB 637) to [77] (at CB 637) makes clear that the Tribunal did consider the psychologist’s report and engaged with its contents, that is, the “terms of the report” ([77] at CB 637).
Second, there is no transcript of the Tribunal hearings in evidence before the Court. The only relevant evidence of what occurred at the hearings, is set out in the Tribunal’s decision record.
The Tribunal records in its decision record that at the hearing (in context, the hearing on 6 May 2016), the applicants’ migration agent asked the Tribunal to delay the making of its decision so that a psychologist’s report could be prepared and provided to the Tribunal. The Tribunal agreed to this request (see [76] at CB 637).
It appears the Tribunal gave the applicants until 11 May 2016 to provide the psychologist’s report. On that date, the first applicant spoke to a Tribunal officer seeking an extension of time within which to provide the report (CB 609). A formal request was made on 12 May 2016 (CB 610). Further time was given by the Tribunal to allow the applicants to provide the report (CB 611).
The psychologist’s report was provided to the Tribunal on 16 May 2016 under cover of a letter from the applicants’ migration agent (CB 612 to CB 617). The submission from the migration agent in the covering letter was that (CB 612.7):
“This report has demonstrated the current mental condition of the [first] applicant for fear of persecution.”
No further explanation of the psychologist’s report, or its purpose, was provided. If the purpose, or relevance, of the psychologist’s report was raised at the Tribunal hearing, there is no relevant evidence of this before the Court now.
It is unclear as to what the applicants and their migration agent expected the Tribunal to do with the psychologist’s report, given the general and ambiguous statement as to the purpose of providing it to the Tribunal in the covering letter (see [44] above).
Before the Court, the applicants focused on what was said to be the Tribunal’s “overlooking” of the psychologist’s report. However, there was no submission by the applicants to the Tribunal as to the relevance of the psychologist’s report to the applicants’ case. That is, how the report was relevant to the first applicant’s claims to fear harm, such as to provide a basis for the Tribunal’s claimed omission in its evaluation of the first applicant’s evidence.
The relevance of this to the current consideration is that the applicants allege that the Tribunal “overlooked” the psychologist’s report. The relevant question however, is whether the Tribunal overlooked evidence which was particular to the first applicant, and of critical importance to his claims for protection, such that it materially affected the decision (VAAD at [77]).
Third, before the Court, the applicants explained that the relevance of the psychologist’s report to the Tribunal’s consideration was that it should have caused it to reconsider its adverse view of the credibility of the first applicant’s claims.
The stated purpose of giving the report to the Tribunal, as set out above, was, at best, ambiguous. It would appear, most likely, that it was provided to the Tribunal after the hearing, to support the first applicant’s claims to protection. How a report about his mental condition could provide such support was never satisfactorily explained.
To the extent, as indicated in submissions before the Court, that the psychologist’s report should have caused the Tribunal to “reconsider” its adverse views about the credibility of the first applicant’s claims to protection, this argument is without merit for essentially two reasons.
One, this argument presupposes that the Tribunal did not reconsider its findings on the first applicant’s credibility in light of the psychologist’s report. There is no evidence before the Court of the Tribunal’s thought processes or how it approached its consideration of the matter before it, other than what is stated in, or what can be reasonably inferred from, its decision record.
The applicants’ submission is that the Tribunal should have “gone back” and reconsidered its view of the first applicant’s credibility, as that view is expressed in its decision record in the paragraphs antecedent to [76] (at CB 637) and [77] (at CB 637).
This argument ignores that the psychologist’s report was before the Tribunal prior to the time of making of its decision, as expressed in the written reasons the Tribunal provided.
The fact that the psychologist’s report was provided after the hearing and even that the reference to the psychologist’s report appears at the end of the decision record, does not, of itself, indicate that the Tribunal approached this consideration in a formulaic fashion. That is, that the psychologist’s report was “overlooked” because the Tribunal only came to consider it after it had drafted its decision.
Two, as set out above, the applicants rely on what was described as the need for the Tribunal to have adopted a “non-linear” approach to the consideration of the first applicant’s credit. That is, it should have “revisited” its earlier expressed adverse finding as to the first applicant’s credit, in light of the psychologist’s report.
However the further answer to this argument (to what is set out above), is to be found in Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
[Emphasis added.]
In the circumstances, the sole ground of the proposed amended application lacks such merit as to argue that leave should be granted. Leave should be refused, especially in circumstances where again I note that there has been no explanation provided for the delay in raising this proposed ground.
I note that in submissions in reply at the hearing before the Court, the applicants’ counsel raised, for the first time, a further argument in support of the proposed ground. The argument was that the judgment of Logan J in SZRHL (see above at [5]) supported the applicants’ argument that the Tribunal fell into jurisdictional error in relation to the consideration of the psychologist’s report.
This argument was not raised in the applicants’ initial oral submissions, let alone in their first written submissions in support of the application for leave to amend the application. The failure to raise this argument earlier also remained unexplained.
Given this circumstance, it was open to consider refusing leave for the applicants to rely on this argument which was raised for the first time at such a late stage during the final hearing.
However, as is set out above, SZRHL involved the same applicants. This case was remitted to the Tribunal, and led to the very Tribunal decision before the Court now.
It would be of concern if the “current” Tribunal decision fell into the same jurisdictional error as the “earlier” Tribunal decision. It is appropriate to expect that Tribunal members would properly consider Court judgments, especially if they relate to a matter returned to the Tribunal for reconsideration according to law. In this light, I gave the parties the opportunity to make further written submissions on the argument said to arise from SZRHL. The applicants filed written submissions on 5 March 2018 (“the applicants’ second written submissions”). The Minister filed written submissions on 16 March 2018 (“the Minister’s second written submissions”).
In SZRHL, the question for the Court was whether the Tribunal fell into jurisdictional error by making an adverse finding as to the first applicant’s credibility based upon a “false premise” (see SZRHL at [35]).
That “false premise” was said to arise from the first applicant’s claim of a “false case” brought against him in Bangladesh. Specifically, the Tribunal (in that case) proceeded on the basis that the first applicant had not mentioned in his protection visa application that a “false case” had been raised against him, when in fact this was mentioned in his protection visa application form.
The Court in SZRHL found that the Tribunal’s adverse credibility finding in relation to the first applicant was influenced by the matter of the perceived omission of the reference to the “false case” at the time of making the protection visa application. This was found to constitute jurisdictional error.
It must be said that it is difficult to see how SZRHL assists the applicants now in the circumstances of this case.
The applicants submitted that (see [6] of the applicants’ written submissions and the reference therein to DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 (“DAO16”) at [30]):
“[6] The relevant principles were summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at paragraph [30], which included the following discussion:
‘(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR I09 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83]( d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [20 10] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. …A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. (Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims…’”
Before the Court now, the applicants acknowledged that there is no such “false case” issue in the current case. However, the applicants submitted that the “issue of the psychologist’s report impacts on the issue of credibility in a similar way” ([5] of the applicant’s second written submissions).
The applicants’ second written submissions make reference to a number of other authorities in an attempt to make good on this proposition. However, beyond a general assertion of legal error, the applicants have not explained, let alone satisfactorily explained, how in the particular circumstances of this case (and this must be emphasised), the Tribunal fell into jurisdictional error. Nor have the applicants provided a detailed analysis of the Tribunal’s decision record to reveal how the jurisdictional error was made in this regard (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (“SZRKT”) at [77]).
At best, contrary to what is stated in the sole ground of the proposed amended application before the Court, the applicants’ second written submissions asserted that the Tribunal’s error was a failure to give “sufficient weight” to the psychologist’s report, presumably in making the adverse credibility finding in relation the first applicant.
In their second written submissions, the applicants referred to DAO16 and the reference there to Minister for Immigration and CitizenshipvSZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) (see above at [68]). The reference is to an absence of a “logical connection between the evidence and the inferences” drawn by the Tribunal (SZMDS at [135]).
Further, the applicants referred to DAO16 and the reference there to SZRKT, for the proposition that jurisdictional error may be established “where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision maker rejects the entirety of an applicant’s evidence and claims” (SZRKT at [78] and see above at [68]).
How the assignment of “no weight” to the psychologist’s report would fall into either of these circumstances was not satisfactorily explained by the applicants.
As is set out above, the purpose for submitting the psychologist’s report (conceded in oral submissions before the Court) was to support the first applicant’s claims to fear harm in Bangladesh due to his political opinion.
I agree with the Minister, and there is nothing from the applicants to dispute this proposition, that the only part of the psychologist’s report that may be said to potentially corroborate this claim to fear harm in Bangladesh was as follows (see [9] of the Minister’s second written submissions and CB 616.8):
“[The applicant’s] Depressive and Anxiety symptoms appear to have developed as a direct consequence of the emotional distress, caused by fear of execution if he remained in Bangladesh. This distress was further exacerbated by his feelings of worthlessness, because he cannot be present to fulfil his role of eldest son of the family, nor provide adequately for his wife and child, here in Australia, and further compounded by feelings of loneliness and isolation, due to his absence from his family and friends in Bangladesh. Given his life pressures, his prior protective family background and good peer support in Bangladesh, it is not unexpected that he has found it more challenging and difficult to continue with his good mental health, particularly after the overwhelming threat to be killed if remained in Bangladesh, and now his fear serious concern for his wife and child.”
[Errors in original.]
As set out above, the Tribunal considered the psychologist’s report at [76] (at CB 637) to [77] (at CB 637) of its decision record (and see above at [24]).
The Tribunal’s reference to its findings set out earlier in its decision record about the first applicant’s credibility were reasonably and cogently explained, and derived from the evidence before it.
The Tribunal’s “concerns” about the first applicant’s evidence were set out at [36] (at CB 630) to [68] (at CB 635) of its decision record. Its “conclusions” from [69] (at CB 635 to CB 636), that the first applicant was not a witness of truth, derived from the findings in relation to those concerns. Those findings, in turn, were probative of the material before the Tribunal.
At [76] (at CB 637) to [77] (at CB 637) of the Tribunal’s decision record the Tribunal simply decided to give “no weight” to the psychologist’s report to the extent that it purported to corroborate the first applicant’s claims. The Tribunal’s reasons for this were clear, including that the psychologist had relied only upon what the first applicant had told him of his claims to fear harm.
I agree with the Minister that however the applicants have sought to frame their complaint about what the Tribunal has reasoned, what clearly emerges is that the applicants seek to challenge the Tribunal’s finding that it did not assign any weight to the psychologist’s report.
It is not necessary to repeat the analysis set out above. It applies equally in relation to the argument said to arise from SZRHL. The proposed ground is a request for impermissible merits review. For that reason, leave to amend the application should be refused. I will make the appropriate order.
Conclusion
I did not understand the applicants’ counsel before the Court to press the grounds of the application, as had originally been made and which was filed by the applicants without legal assistance. Certainly no explanation, let alone submissions, were made in this regard. Therefore it is appropriate that the application to the Court should be dismissed for lack of prosecution. I will make the appropriate order.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 30 August 2018
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