SZRNU v Minister for Immigration
[2013] FMCA 91
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRNU v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 91 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (class XA) visa under s.65 of the Migration Act 1958 – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 91X, 424A, 425 |
| Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 SZMSF v Minister for Immigration and Citizenship & Anor [2010] FCA 585 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZRNU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1264 of 2012 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 28 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2013 |
REPRESENTATION
| The Applicant: | Applicant appeared in person with the assistance of a Nepalese interpreter |
| Counsel for the First Respondent: | Ms R. Francois |
| Solicitors for the First Respondent: | Ms S. Sangha Minter Ellison Lawyers |
ORDERS
The Application filed on 8 June 2012 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements, of and incidental to this Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRNU.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1264 of 2012
| SZRNU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 3 July 2012, the solicitors for the first respondent, the Minister for Immigration and Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and made Exhibit “A”.
At the First Court Date directions hearing, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material on or before 21 August 2012. The applicant filed an amened application with a supporting affidavit on 20 August 2012. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. Written submissions were not filed by the applicant.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), RRT Case Number 1114045 of P. Pope, dated 10 May 2012 and handed down on 11 May 2012, affirming the decision of a delegate of the Minister to refuse the applicant a Protection (Class XA) visa.
The applicant filed three affidavits upon which he sought to rely. An affidavit of the applicant affirmed 8 June 2012 attaches a copy of the Tribunal Decision. An affidavit affirmed 18 August 2012 by the applicant attaches a transcript of the Tribunal Hearing on 1 May 2012. There were no objections to either of these affidavits and they were taken to be read by the Applicant. A third affidavit affirmed 28 August 2012 attaches a medical report dated 21 August 2012. Ms Francois raised an objection to this affidavit on the grounds of relevance but did not object to it being read.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the legal representatives of the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material
The applicant is a 24 year old male citizen of Nepal who arrived in Australia on 9 November 2008 on a TU 572 Student visa (CB 3-5, 56). On the date that the applicant’s student visa expired, 18 May 2011 (CB 56), the applicant applied for a Protection (Class XA) visa (CB 3-33).
It is important to note that on 15 April 2011, a month prior to lodging his application for a Protection visa, the applicant had been the victim of an attack by a large number of Asian men in Strathfield (CB 124 at [61]).
A delegate of the Minister invited the applicant, by letter dated 11 November 2011, to an interview to discuss his Protection visa application which was due to be held on 29 November 2011 (CB 36-37). On 8 December 2011 a delegate of the Minister refused the applicant’s Protection visa application and notified the applicant by post (CB 41-63).
The applicant applied to the Tribunal for review of the delegate’s decision on 15 December 2011 (CB 65-68). The Tribunal, having earlier acknowledged the application by way of letter dated 22 December 2011 (CB 69-78), invited the applicant to appear before it at a hearing on 19 April 2012, by way of letter dated 22 March 2012 (CB 81-82). The applicant completed and returned the “Response to Hearing Invitation” form, indicating that he would take part in the hearing, on 18 April 2012 (CB 86-89).
The applicant did have representation, in the form of a migration agent, who was not present at the hearing and did not submit any documents at the hearing (CB 90-91). The Tribunal adjourned the matter as the applicant required a Nepali interpreter (CB 92). The applicant was notified of the resumption of the adjourned hearing by way of letter dated 19 April 2012 (CB 100-101), and subsequently invited to a second hearing on 1 May 2012. The applicant completed and returned a “Response to Hearing Invitation” form to the Tribunal on 21 April 2012, indicating that he would attend the hearing (CB 104-105). At the hearing held on 1 May 2012 the applicant appeared with the assistance of a Nepali interpreter (CB 106) and was still represented by the migration agent, however, his representative was not present at the hearing.
On 11 May 2012, the Tribunal wrote to the applicant notifying him of its decision to affirm the decision of the delegate of the Minister to refuse to grant him a Protection (Class XA) visa (CB 109-134).
The delegate’s decision
On 29 November 2011, the applicant attended an interview with a delegate of the Minister (CB 36, 56). The applicant’s claims, as summarised by the delegate are as follows:
a)The applicant was linked to the Nepali Congress Party (“NCP”). The Maoists applied pressure on him to join. The Maoists made threats to kill him (CB 118 at [25]);
b)The Maoists made demands for donations from the applicant (CB 118 at [25]);
c)The applicant went to the police, who did not help him. Following this, the Maoists beat him (CB 118 at [25]);
d)The applicant escaped Kathmandu to come to Australia with his wife (CB 118 at [25]); and
e)The applicant returned to Nepal in April 2010 for a three week visit and found that the situation had not improved (CB 118 at [25]).
On 8 December 2011, the delegate refused to grant the applicant a Protection visa (CB 56-63). The delegate rejected the bare assertion that the applicant was a member of a particular social group (CB 60) and found that the applicant’s account of persecution in Nepal was not credible (CB 61). The delegate expressed the view that the applicant could have, at any time, left Nepal for India if he feared for his safety, but he did not do so (CB 61). The delegate formed the view that the applicant entered into a contrived marriage in order to travel to Australia, as the dependent of a Student visa holder (CB 61). The delegate separately identified as a ground for rejecting the applicant’s claims for a Protection visa his delay in making the application for a Protection visa (CB 62).
Claims before the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision (CB 64-68). The original hearing was scheduled to be heard on 1 May 2012, as the Tribunal organised a Nepali interpreter to assist the applicant (CB 92, 100-103). The applicant was represented in relation to the review by a registered migration agent. The applicant’s migration agent, however, was not present at the hearing (CB 117 at [20]).
In the applicant’s application for a Protection visa, he claimed that he left Nepal in order to remain safe and to save his life. The applicant stated that he feared Maoists in Nepal would harm him because he held an opposite political opinion, and that he had been threatened and abducted in the past (CB 117 at [21]). In a separate accompanying statement the applicant stated that he and his family were associated with a political party called the Nepal Congress Party (“NCP”) (CB 117 at [22]). As the NCP was seen by the Maoists as their rival anyone who supported them was considered an enemy of the Maoists. The Maoists tried to persuade the applicant to join their party, when he refused they made threats and threatened to kill him (CB 118 at [22]). The applicant also stated that the business he was running was receiving demands from the Maoists to provide donations to the Maoist Party (CB 118 at [22]). The applicant claims that he ignored these demands and was threatened again. The applicant also claimed to have gone to the police for assistance and when the Maoists came to know of this, they attacked him many times. Due to the threats and the resulting physical and mental stress of living in such fear, the applicant claimed that his family suggested that he should leave the country (CB 118 at [23]).
In a following separate submission to the Tribunal, the applicant’s advisor stated that the applicant’s claims are based on the following:
a)His membership of the NCP and the fact that he is a businessman. The applicant fears persecution by the Maoists and their youth wing the Young Communist League (“YCL”) (CB 118 at [24]); and
b)His fear that he will be harmed by the Maoists and YCL because he is a member of a particular social group, that being youth returned from Australia. This group is targeted by the Maoists and YCL (CB 118 at [24]).
The applicant made oral submissions before the Tribunal at the hearing on 1 May 2012 that have been summarised at [19]-[83] of the Tribunal’s Decision Record (CB 114-133). This oral evidence included submissions that:
a)The applicant claimed that he joined the NCP as an ordinary member and attended party programs (CB 121 at [45]);
b)The applicant claimed that he was involved in the Village Development Committee in which he joined the Student Union (CB 212 at [45]) and was vocal about the NCP in public meetings and assisted as a volunteer;
c)The applicant claims that between 2005 and 2006 he was attacked by the YCL a total of three times;
d)The applicant claims that in December 2006 a group of people attacked him; he fell unconscious and woke up in hospital. He claims that when he returned home the attackers phoned his father and made a threat that they would kill the applicant;
e)The applicant worked for the family business up until early 2008. He claims that the YCL tried to force him to join. He claims that the Maoists and the YCL demanded donations as frequently as once a week;
f)The applicant claimed to have eloped with his wife in June 2007 (CB 122 at [50]). The applicant claims that neither family were aware of the relationship because their families would oppose it. The applicant claims that he is Brahmin and his partner is Gurung, a lower caste. The applicant claims that where he lived, the community did not approve of relationships such as his (CB 122 at [50]-[51]);
g)The applicant claimed to have come to Australia as the dependent of a holder of a Student visa (CB 123 at [55]);
h)The applicant claimed that he and his wife lived intermittently together after they arrived in Australia (CB 123 at [57], [60]);
i)On 15 April 2011 the applicant was attacked and beaten up by a group of approximately 20 people. The attack was reported to the police and he attended the station to make a report. The applicant believes he was attacked due to mistaken identity (CB 124 at [61]); and
j)The applicant claims that he and his wife divorced in November 2011. He claims that after the attack “everything about him changed” and his mental health declined (CB 124 at [60]).
The Tribunal’s decision
On 11 May 2011 the Tribunal handed down it decision affirming the decision of the delegate (CB 111-134). It is important to note that at no point during this process, which commenced a month after the applicant had been attacked, did the applicant or his migration agent suggest that the applicant was not sufficiently well to attend his interview with the delegate or the hearings at the Tribunal (CB 130 at [88]).
The Tribunal did not accept the applicant’s claims as it formed the view that the applicant did not provide a truthful account of his experiences in Nepal (CB 130 at [89]). The Tribunal reached this conclusion based on the applicant raising a late claim about his inter-caste marriage (CB 130 at [89]) and the implausible nature of his account of his experiences (CB 131-132 at [93],[96] and [97]). The Tribunal Member listened to the recording of the applicant’s interview with the delegate and it did not accept that the applicant did not have the opportunity in that interview to raise the claim, if it was indeed the truth (CB 130 at [89]). The Tribunal also found it implausible that this group of Maoists would have continued to make serious threats against the applicant, including the threat to kill him for such a long period (from 2005 until 2008), yet fail to carry the particular threat out. Accordingly, having rejected all the applicant’s claims the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations within the meaning of s.36(2)(a) of the Migration Act or that he met the criteria in s.36(2)(aa) of the Act (CB 133).
Application for Judicial Review
The applicant filed an application for judicial review in this Court on 8 June 2012 which was amended, pursuant to leave, on 18 August 2012. Pursuant to the application the applicant sought the following orders:
1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 10 May 2012.
2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
3. The First Respondent pay the Applicant’s costs.
The application contains two grounds;
1. The RRT committed jurisdictional error in that it failed to comply with s424A of the Migration Act, 1958.
Particulars:
a) The delegate of the First respondent had interviewed the applicant on 29 November 2011. The “Reasoning” of the delegate, in his written decision refusing a protection visa, stated, inter alia, at page 6 (CB 61, 4th paragraph, and see CB 120, paragraph 37):
“I note that the applicant was able, at any time, to leave Nepal for India if he feared for his safety yet he never did do so. Notwithstanding his claim that they would find him in India, I find it significant that rather than seek temporary refuge there, he remained instead in Kathmandu for several years despite his claim fear of the Maoists.”
b) In the RRT’s Findings and Reasons at paragraph 98 it stated, inter alia:
“The Tribunal finds that if the applicant feared harm from the Maoists for the reasons he now claims he would have removed himself from Kathmandu at an earlier time. He would not have remained there waiting to secure a visa to study abroad. As the delegate put to the applicant he could have sought temporary refuge in India. He did not do so.”
c) Pursuant to s424A of the Migration Act, 1958, the RRT should have complied with s424A(1)(a), (b) and (c) and s424A(2) and written a letter to the applicant, after the hearing on 1 May 2012, giving him, in the way that the RRT considered appropriate in the circumstances, clear particulars of the information referred to in subclauses a) and b) above, and ensured, as far as was reasonably practicable, that he understood why that information was relevant to the review, and the consequences of it being relied on in affirming the decision that was under review, and then invited the applicant to comment on or respond to it. The RRT did not so comply with s424A(1)(a),(b) and (c) and s424A(2) of the Act.
2. The RRT committed jurisdictional error in that it failed to comply with s425 of the Migration Act, 1958, and/or failed to afford the Applicant procedural fairness, in view of the applicant’s parlous mental health including Post Traumatic Stress Disorder and Major Depression, by failing to adjourn the RRT hearing to allow the applicant to obtain psychological or psychiatric treatment, by failing to obtain its own psychological assessment of the applicant’s conditions into account in making its decision.
Particulars:
a) The RRT was put on notice early in the hearing that the applicant was having difficulties with his long term memory by reason of his parlous mental health but failed (and continued to fail) to enquire at that time as to the effect on the applicant as to his ability to give reliable evidence and the hearing continued. (CB 122, para 48; audio tape at 30.15)
b) The RRT later informed by the applicant that his mental health was poor and that everything about him had changed but again it failed to enquire at that time as to the effect on the applicant as to his ability to give reliable evidence and the hearing continued. (CB 124, para 60; audio tape at 57.46)
c) The RRT later asked the applicant what medication he was currently taking. He stated that he was taking antidepressants for his poor memory and depression. He stated that he does not work when he is not mentally well. The RRT failed to enquire at that time as to the effect on the applicant as to his ability to give reliable evidence and the hearing continued. (CB 125, para 65; audio tape at 1.12.01-1.13)
d) The RRT only afforded a 19 minute adjournment at 1.31pm, after the hearing has started at 11.27am. (CB 107, 127, para 74).
e) Just before the hearing concluded, the RRT, after just having been informed by the applicant that he could not remember the answer to a question asked of him and that his mind does not function, discussed with the applicant his current mental health status and medication. The applicant stated his mental health status and medication. The applicant stated his mental health was deteriorating. He stated that his new medication was making him dizzy and that he could not work when he took the medication. He stated that he had been experiencing these problems for a long time and following an assault upon him on 15 April 2011. The RRT asked the applicant whether he believed he had been able to provide his evidence in full. The applicant stated “I think I have been able to.” (CB 129, para 61, 82; audio tape 2.24-2.31)
Grounds 1 and 2
In summary the Amended Application pleads two grounds of review, firstly, a failure to comply with s.424A of the Migration Act and secondly a failure to comply with s.425 of the Migration Act and the requirements of procedural fairness by reason of the applicant’s illness resulting from the attack that occurred on 15 April 2011.
Applicant’s Submissions
At the hearing, the applicant, with the assistance of an interpreter, read out a letter he had prepared for Court (Transcript; p.2, l. 22-23). It stated that he chose to rely on his Amended Application. The applicant stated that he wanted the Court to take his medical report, annexed to his own affidavit, affirmed 28 August 2012 into account. The applicant also wanted the Court to consider that the Tribunal did not make inquires about his ability to give reliable evidence (Transcript p. 2). The applicant did not rely on any written submissions.
Respondent’s Submissions
The Minister submits that Ground 1 of the application relies upon the Tribunal’s observation that the applicant could have sought refuge in India, but did not do so. The Minister argues that this ground is misconceived for two reasons:
a)Insofar as it may be relying upon the general information about the border arrangements between Nepal and India, that is information which is excluded from the operation of s. 424A(1) of the Migration Act by operation of s. 424A(3)(a); and
b)Insofar as it relies upon the Tribunal’s analysis of that information in the context of the applicant’s claims, that is the subjective thought processes of the Tribunal which is not required to be disclosed: SZBYR v Minster for Immigration and Citizenship (2007) 235 ALR 609 at [18] affirming VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].
The Minister submits that Ground 2 relies upon a diagnosis that the applicant suffered post-traumatic stress disorder and major depression as a result of these conditions, and he was not fit to attend the delegate interview and Tribunal hearings and could not meaningfully participate in them and required an adjournment: Minster for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; and SZMSF v Minster for Immigration and Citizenship [2010] FCA 585.
The Minister argues that the evidence to the above is contrary. The transcript of the Tribunal hearing held on 1 May 2012 annexed to the applicant’s affidavit of 18 August 2012 indicates that he did meaningfully participate in the hearing and gave clearly responsive answers to the questions put to him. The Minister argues that at one point the Tribunal stated “I think we might just have a short break at this stage”, to which the applicant responded “I don’t need its okay”. In addition, the Tribunal expressly considered the applicant’s fitness to participate in the hearing and concluded that he was competent to give his evidence (CB 130 at [88]).
Finally, the Minister argues that the applicant’s claim that the Tribunal had a duty to make further inquiries about the applicant’s capacity to participate in the hearing is plainly wrong: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; Minster for Immigration and Citizenship v SZNVW (2010) (supra) at [20].
Consideration
In respect to Ground 1, I acknowledge that there have been numerous decisions with varying outcomes, in respect of the rights of Nepalese citizens to enter India. However, I do not believe that this matter enters that arena, as neither the delegate nor the Tribunal Member has raised the issue in respect of whether the applicant had any right or obligation to pursue this avenue. The matter before the Court concerned the applicant remaining in Kathmandu while claiming to be subject to serious threat by the Maoists.
In the delegate’s decision, under the sub-heading “Reasoning”, the delegate stated:
I note that the applicant was able, at any time, to leave Nepal for India if he feared for his safety yet he never did do so. Notwithstanding his claim that they would find him in India. I find it significant that rather than seek temporary refuge there, he remained instead in Kathmandu for several years despite his claimed fear of the Maoists. Although he claims they beat him unconscious twice, it appears rather that they proved – despite their record of violence – relatively restrained in that they began contacting him in early 2006 but he was able to remain in Kathmandu as late as the end of 2008. He was able to meet and marry (according to him a love match) and plan his visa and travel to Australia. Given that he was living with family I consider that it was possible for him to be found without undue difficulty if an organisation such as the Maoists had wanted to do so and that they could have taken more decisive action and taken it much earlier.
(CB 61)
In the Tribunal decision, the Member was again focussing her attention on the length of time that the applicant remained in Kathmandu while claiming to be living in the fear of the Maoists. There is a passing reference to the possibility that he could have sought temporary refuge in India in these circumstances. This comment is made without any reference or suggestion that the applicant had any right or entitlement to pursue this course which has been the central issue in various judicial considerations of this Court. The Tribunal Member at [98] states:
The applicant remained in Nepal until 2008. According to information he provided in the application for the Protection visa and to the Tribunal he lived at the family home in Dhapasi, a suburb of Kathmandu until he left the country in 2008. He told the Tribunal that he continued to live with his parents even after his marriage. The Tribunal finds that if the applicant feared harmed from the Maoists for the reasons he now claims he would have removed himself from Kathmandu at an earlier time. He would not have remained there waiting to secure a visa to study abroad. As the delegate put to the applicant he could have sought temporary refuge in India. He did not do so. The Tribunal has also formed the view that of the applicant genuinely feared harm in Nepal for any reason he would not have returned there in April 2010 for three weeks as he did. The Tribunal acknowledged that his father passed away and it accepts that he wanted to go to Kathmandu to take part in the traditional rituals. Nevertheless the Tribunal finds that he would not have returned to Kathmandu even in these circumstances had he held a genuine fear for harm.
(CB 132)
I agree with the submissions made on behalf of the Minister that, although not stated in either of the decisions referred to above, the Tribunal Member in her decision appears to be relying upon the border arrangements between Nepal and India. Again, although not stated, it is to be assumed that the Tribunal took the view that there is a fluid relationship between Nepal and India, such that the applicant could at any time go across the border. Significantly, the Tribunal Member does not suggest that the applicant had any right to take this action, or any right to remain within India. Rather, the reasoning appears to be that as a practical reality, there is significant movement across the border on a regular and routine basis. This information can be categorised as being of a general kind.
Consequently, the passage relied upon by the applicant, which contains the reference to temporary refuge in India, is general information. In the applicant’s circumstances it counts against him that he would not have taken the opportunity to escape to India if the conditions were so bad in Nepal and, specifically, in Kathmandu. It is reasonable to assume that India is the nearest neighbour to Nepal and it does not maintain strict border restrictions, such as in Sikkim or with Bhutan, in Kashmir or with Pakistan, Tibet or China.
I accept the Minister’s submissions that the reference to the temporary refuge in India is the subjective thought processes of the Tribunal Member, analysing that information in the context of the applicant’s circumstances. A reference to the possibility of crossing the Nepalese- Indian border to seek temporary refuge in India, falls into the category of general information, which is excluded from the operation of s.424A(1) of the Migration Act by the operation of s.424A(3)(a).
The authority for this approach is found in SZBYR v Minister for Immigration and Citizenship (supra) at [18]:
…if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14].
"does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
(footnotes omitted)
In respect to Ground 2, it is acknowledged by the Minister and clearly stated by both the delegate and the Tribunal Member that the applicant had suffered an appalling event while he was in Australia, and that he was admitted to hospital and is on medication to deal with the results of that incident. However, the Court notes that, at the relevant time before the delegate and the Tribunal Member, the applicant was represented by a migration agent. As noted above, that agent was not present at either of the hearings, however, if the applicant was displaying symptoms that would jeopardise or impair his ability to participate in the relevant hearings that agent would be able to bring this to the respective parties attention and have the matter adjourned. A copy of the transcript of the Tribunal hearing was filed by the applicant, in his second affidavit, dated 18 August 2012. A fair reading of that transcript indicates that the applicant answered the Member’s questions responsively, with a couple of minor exceptions where the applicant indicated to the Member that he could not answer the question because of his memory. Significantly, this is not a Tribunal decision that turns upon inconsistencies and problems with memory, rather, the decision found that the applicant wasn’t truthful because of a new claim made late and because his overall story, on its face, did not make sense. The Tribunal clearly considered that the applicant’s ill health and made a finding that in its view the applicant was capable of attending and participating in the hearing.
I agree with the submission by Ms Francois that the decision in Minister for Immigration and Citizenship v SZNVW (supra) addresses this issue at [20], where his Honour Keane CJ states:
20. In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20] – [25], the contention that an applicant’s psychological difficulties were such as to deprive him of the "meaningful opportunity" required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.
I note the applicant, in reply, stated that when he appeared before the Tribunal it was his first experience in a Court environment, which caused him to panic and be fearful, which was accentuated by his mental health problems and strong medication. Consequently, he claims that he has a limited memory of precisely what occurred and was said during the hearing. The applicant indicated that despite this handicap, he had presented all of his evidence and responses truthfully and reliably to the best of his ability. The Court acknowledges that, due to the applicant’s post traumatic stress disorder and depression which require medication, there is no issue that at the time of his appearance in this Court he is unable to recall a significant part of the proceedings before the Tribunal. Despite this, there is available to the Court a transcript of the Tribunal hearing and a full review of that document indicates that the applicant was responsive to questioning and did not raise any apprehension on the part of the Tribunal Member that the applicant was not in a fit state to be questioned. When the Tribunal did ask the applicant whether he required the opportunity of a short break, the applicant indicated his willingness to continue.
Conclusion
The applicant appeared before this Court unrepresented but with the assistance of an interpreter in his native language. The applicant had had the benefit of a registered migration agent for preparation for his hearing before both the delegate and the Tribunal. In addition the applicant participated in the NSW RRT Legal Advice Scheme, receiving written advice and filing an amended application after that conference. Based on the material before the Court and the oral submissions made during the hearing I am satisfied that the Grounds of Review, raised by the applicant, cannot be sustained and, consequently, the application should be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 15 February 2013
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