SZROZ v Minister for Immigration

[2012] FMCA 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZROZ v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 215

MIGRATION – Indian applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error shown in its discussion of a STARTTS psychological report – application dismissed.

Migration Act 1958 (Cth), s.425

Minister for Immigration and Citizenship v MZYHS [2011] FCA 53
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZNCR (2011) FCA 369
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, [2010] FCAFC 41

Applicant: SZROZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1929 of 2011

Judgment of: Smith FM

Hearing date: 14 March 2012

Delivered at: Sydney

Delivered on: 14 March 2012

REPRESENTATION

Counsel for the Applicant: Mr R Turner

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1929 of 2011

SZROZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in November 2010, on a three month temporary business visa which was obtained using fraudulent documents.  On 24 December 2010, he applied for a protection visa without indicating any assistance.  Attached to his protection visa application was a statement indicating a history upon which he claimed to fear persecution if he returned to his country of nationality, India. 

2. The applicant said that he returned to his town in Kerala after some years abroad, and decided to join the Communist Party of India (CPI(M)) in 2002.  Initially he was a “part-time” member of the party and he was also a Kerala Catholic Youth Movement (KCYM) member “as well.”  He said that in 2007 “I was promoted as an active local member” by the CPI(M), and had the job of “bringing awareness to the people about the corruption level in the government.  I used to address people via speeches or notices.  I also used to organise party meetings and our party movements” in his town. 

3. The applicant referred to an incident in September 2009, which is confirmed by contemporaneous news reports, when activists from the Dalit Human Rights Movement (DHRM) killed a citizen while he was taking a morning walk.  The applicant said: “Unfortunately I was a witness to this incident ... Our party was first to raise voice against them – invited fury from DHRM.  They have tortured many of our members after the incident. … Therefore I have invited fury from DHRM activists as well as some groups of people from my neighbouring place.”  This forced him to flee to Mumbai and Tamil Nadu, where he was in hiding “in secret locations” of his party.  After he returned home, he said that he still had a fear for the safety of his life because “I am a witness to the murder.”  He said:

   Since they know I am a witness to the murder and I might inform the police about the details of the murder, they fear this can result in further arrests of DHRM members.  I even changed my name in order to hide from DHRM members and out of fear.

4. The applicant also referred to another incident which was reported in internet reports in 2010, when a lecturer at a Christian college was attacked by Popular Front fundamentalists.  The applicant claimed that the CPI(M) asked him to: “oppose college authorities after this incident.  Since I am Kerala Catholic Movement member I couldn’t do the task of opposing Christian minority institution authority.  Also I found my party’s attitude towards Christian institutions was not good.”  The applicant therefore decided to leave the Communist Party. As a result, he no longer received its protection from the attacks of the other parties, and this caused him to flee from India. 

5. The applicant was interviewed by a delegate on 31 January 2011, and the delegate made a decision on 24 March 2011 which refused the visa.  The delegate recounted additional evidence given by the applicant which maintained the essence of his written statement, but did not accept the truth of the history presented by the applicant.  The delegate found that the applicant did not have a genuine fear of harm, and that there was not a real chance of persecution occurring. 

6. The applicant appealed to the Tribunal without appointing an agent, and presented written and oral arguments against the delegate’s reasoning.  He attended a hearing held by the Tribunal on 29 June 2011, and received a recording of the hearing.  No transcript was tendered before me, and I accept the description given by the Tribunal in its statement of reasons.  The hearing appears to have lasted about three hours.  A Malayalam interpreter was in attendance, and the applicant appears also to have a good grasp of English, having been educated in that language in the United Arab Emirates. 

7. In the course of the hearing, the Tribunal questioned the applicant about documents he had presented showing his change of name in 2009.  The applicant accepted that this had occurred in April 2009, and that he obtained his passport in that new name in July 2009.  He made new claims to the Tribunal that before this happened, he had been threatened by the DHRM and had received a death threat from them. 

8. A number of matters were investigated by the Tribunal in the course of the hearing which subsequently formed the basis of its reasoning. 

9. The Tribunal made a decision on 1 August 2011 which affirmed the delegate’s decision.  In its statement of reasons, the Tribunal recounted the evidence before it in detail.  In the course of doing this, it noted that there was present on the department file a document on the letterhead of STARTTS, being the “New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors,” signed by a person describing themselves as “counsellor” without revealing any qualifications of a medical nature.  The letter is addressed to a person at the ‘Asylum Seeker Assistance Scheme’, and said: 

   Thank you for your referral of [the applicant]. I conducted an assessment on 27^th January 2011. [The applicant] reports a range of severe signs and symptoms associated with posttraumatic stress, anxiety and depression including: agitation; low mood; reduced energy; poor sleep; intrusive thoughts and images associated with past experience and fears for his future; poor concentration and memory; anhedonia; and somatic reactions including pain and weight loss.

   As a consequence of this symptomatic presentation, [the applicant] is currently not capable of undertaking paid employment. He is therefore in urgent need of whatever financial and medical assistance can be provided to him. Should you require further details please do not hesitate to contact me.

10. The Tribunal expressly noted the existence of that document.  It said:

    28. The applicant provided documentation from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) stating that the applicant was assessed on 27 January 2011 and is suffering from posttraumatic stress; anxiety and depression; poor memory and concentration; and he suffers from intrusive thoughts based on his past experiences and he fears for his future.

11. There is no evidence that the applicant himself ever drew attention to the existence of the report to the Tribunal, whether before, during or after his hearing.  Nor is there any evidence that in the course of the hearing he claimed to be suffering from a medical incapacity, although at times he may have claimed to have difficulties of memory.    He has given no evidence to the Court that this was the case.

12. In the Tribunal’s findings and reasons, it examined the applicant’s evidence about changing his name, and said that it was “highly problematic and adverse to his credibility”;  in particular, because it occurred before the incident in September 2009 which the applicant had claimed in his visa application that led to his harassment by the DHRM and fears of harm.  Referring to the applicant’s responses when this concern was put to him, the Tribunal said:

    The Tribunal also considers that when this issue was discussed with the applicant during the hearing, that he became evasive, vague, resorted to generalities and had difficulty responding to the Tribunal’s questions. 

    The Tribunal concluded that “it is evident that the applicant was manufacturing evidence in response to the concerns posed by the Tribunal in relation to this issue.” 

13. The Tribunal also thought that the applicant’s evidence about the manner in which he changed his name was inconsistent with other parts of his evidence. It concluded that he in fact had changed his name “for reasons entirely unrelated to his refugee claims.  In the Tribunal’s view, the applicant has manufactured this claim and considers that his willingness to do so casts considerable doubt on the entirety of his claims to fear harm in India.”

14. The Tribunal said that several other aspects of the applicant’s claims that he was being sought by the DHRM lacked credibility, and it identified particular difficulties in his evidence on this topic.  It concluded that “the applicant’s evidence that he is sought by the DHRM is extremely confused and that he embellished and altered his evidence at the Tribunal hearing in relation to the Tribunal’s questions on this issue.”

15. The Tribunal detected inconsistency with, on the one hand, the applicant claiming to have gone into hiding after the September 2009 incident and, on the other hand, his claiming to have returned to work in Kerala in a public capacity for the CPI(M).  The Tribunal accepted that the September 2009 murder had occurred, but it did not accept that the applicant himself: “has any information in relation to this incident or that he is sought by the DHRM because of any involvement in this incident.”

16. In relation to the applicant’s claims concerning events in 2010, in which he claimed to have resigned from the CPI(M) as a result of being instructed to oppose a Christian college, the Tribunal noted that he was “unable to elaborate on what those instructions were.”  It said: 

    The Tribunal is strongly of the view that the applicant’s inability to provide anything other than limited details of his involvement in that incident is indicative of the fact that he has manufactured his claims of involvement. 

    The Tribunal did not believe the applicant’s claims that it was only over years that he discovered that: “the relationship between the CPI(M) and the Catholic church is antagonistic.”

17. The Tribunal assessed the applicant’s evidence overall as to his claimed association with the CPI(M), and concluded that it did not accept that he was ever a member of that party, and that he never was involved in its activities in the way he claimed.  The Tribunal considered documents purporting to corroborate membership of the party, but gave no weight to them. 

18. The Tribunal then referred to the STARTTS report:

    74. The Tribunal has also had regard to the STARTTS report provided to the Department. The Tribunal is not satisfied that the applicant’s generalised and vague evidence in relation to many aspects of his claims was due to post traumatic stress, anxiety, depression, poor memory or concentration as identified in the STARTTS report. As set out above, although the applicant was able to recall precise details of many aspects of his statement it was when he was required to deviate from the statement that he had difficulty in doing so and became evasive, vague and general. The Tribunal has formed the view that any difficulties in the applicant’s evidence are due to the fact that he has manufactured the entirety of his claims to fear harm in India.

19. The Tribunal concluded that it accepted that the applicant was Catholic, and at some point had been involved in the KCYM. However, it noted that no claims of past or future harm as a result of his religion or involvement in the KCYM was claimed.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution by reason of that involvement or his religion if he returned to India, nor that he had a well-founded fear of persecution as a result of his political opinion or imputed political opinion or any other Convention reason if he returned to India. 

20. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I have power to make these orders only if I am satisfied that the Tribunal’s decision is affected by jurisdictional error.  I do not have power myself to decide whether the applicant’s refugee claims should have been believed, nor whether he is entitled to a protection visa or any other permission to stay in Australia. 

21. The applicant’s original application did not identify any ground of jurisdictional error with meaningful particulars.  However, he accepted a referral to a member of the free legal advice scheme, Mr Turner, who has prepared an amended application and who appeared today to present submissions in support of grounds raised by it.  The grounds are framed in the following way: 

    Grounds of application

    1.The Tribunal failed to carry out its statutory duty.

    Particulars

    a.The Tribunal has a statutory duty to issue a meaningful invitation to a meaningful hearing.

    b.The Tribunal dismissed the diagnosis of the Applicant as suffering from Post Traumatic Stress Disorder without any professional opinion to the contrary.

    2.The Tribunal failed to give any, or any real, consideration to relevant material.

    Particulars

    a.The Tribunal had before it a report from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) which can readily be accepted as an expert report.

    b.This report diagnosed the Applicant as suffering from post traumatic stress disorder.

    c.The Tribunal dismissed the report without having any qualified evidence to the contrary.

22. In Mr Turner’s written submissions, reference was made to paragraph 74 of the Tribunal’s reasons, and he argued:

    14.Such a finding ignores the professional opinion in the highly relevant field without any professional evidence to the contrary.

    15.The symptoms attributed to the Applicant by STARTTS are all matters which could explain all the defects in his evidence to the contrary.

    16.The Tribunal does not explain why it does not accept the expert opinion of STARTTS but simply prefers his own lay opinion in regard to the reliability of the Applicant’s evidence.

    17.To reject the Applicant’s evidence on this basis is a failure to provide a meaningful hearing which makes the invitation a “hollow shell” which, in turn, leads to a failure by the Tribunal to carry out its statutory duty.

    Relevant Material

    18.The report by STARTTS is clearly a relevant material as an expert report on the Applicant’s mental state.

    19.A failure to apply that opinion to the Applicant’s evidence is a failure to have any, or any real, consideration of it as is the Tribunal’s dismissal of it without any contradictory expert opinion.

    20.If the Tribunal’s decision is vitiated by one or both of the above jurisdictional errors, the Applicant is entitled to the relief sought.

23. Mr Turner disclaimed reliance on a contention that the Tribunal was under obligations to obtain additional medical evidence, or to conduct other inquiries into the applicant’s mental capacities and how they might have affected his evidence.  This concession was properly made in the light of Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. However, he maintained that jurisdictional error was revealed by the Tribunal’s reasoning in relation to the STARTTS report, and was a failure to follow the requirements of s.425 of the Migration Act 1958 (Cth).

24. Authorities in relation to an implicit obligation under that section to provide a hearing which is “meaningful,” have given rise to different streams of thought in this Court and the Federal Court in relation to applicants suffering from mental impairments.  However, I am bound by the Full Court’s judgment in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, [2010] FCAFC 41, where the judgments of all Justices conclude that an applicant will not have been denied a ‘meaningful’ hearing envisaged under s.425, so as to result in jurisdictional error, unless there is evidence before the Tribunal or subsequently before the Court that, “the [applicant’s] psychological condition denied him the opportunity to give such evidence and present such arguments in support of his application as he thought appropriate” or “impaired in any substantial way his capacity for rational decision-making in his own interests so far as the presentation of his case was concerned” (see Keane CJ at [15], also at [20], [22], and [36-37], and Emmett J at [48]-[49], and Perram J at [84] and [86]).

25. As Tracey J has said in Minister for Immigration and Citizenship v SZNCR (2011) FCA 369 at [30]:

    30. The argument focussed on what an applicant must prove in order successfully to establish a contravention of s 425 of the Act. Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.

26. The evidence now before the court as to the applicant’s mental condition at the time of the hearing is no better than it was before the Tribunal.  Indeed, the Court is in a worse position to assess this, since the Tribunal had the benefit of three hours of observations of the applicant’s ability to give evidence in the course of his hearing.  There is no evidence that his demeanour was affected by any relevant impairment at that time.  Nor is a transcript presented to the Court to show that some impairment would have been manifest from the content of the applicant’s responses. 

27. The STARTTS report is itself, on its face, of little assistance in relation to the applicant’s capacities as a witness on that occasion.  As well as the difficulty of discovering the qualifications of the person giving the opinions contained in it, the opinions themselves appear to relate to the applicant’s capacity for work and nothing else.  It is unclear whether it actually contains any diagnosis of mental illness, by reference to accepted diagnostic criteria. Rather, the letter appears to suggest that the reporter has accepted, without further assessment, the reporting by the applicant of “a range of severe signs and symptoms associated with” a mental illness including “poor concentration and memory.” 

28. Given the obvious deficiencies in the report as relevant medical evidence, and noting the lack of any attention given by the applicant to its contents or to the question of his mental impairments in his submissions and evidence to the Tribunal, I might not have been quick to find any duty on the Tribunal even to refer to the STARTTS letter in the course of its decision.  However, the Tribunal gave it a generous reading, and did accept that it raised for its consideration whether the applicant’s evidence was affected by symptoms of mental illness. This was not a course detrimental to the applicant. 

1. Moreover, its subsequent discussion of that possibility at paragraph 74, in my opinion, shows no error of fact, no error of law, and certainly no jurisdictional error under the principles discussed in SZNVW. I therefore do not accept the contention that a jurisdictional error is established by reference to s.425 of the Migration Act.

2. Nor, in view of the Tribunal’s expressed identification of the STARTTS letter, and of its discussion of its possible relevance to an assessment of the applicant’s credibility as a witness, can it be said that the Tribunal failed to consider the possible significance of the STARTTS report.  

3. At the end of the day, in my opinion, the submissions of Mr Turner amounted to submissions that it was not open to the Tribunal, as a matter of law, to have put aside the possibility that the defects in the applicant’s evidence were not the result of medical condition, rather than evidence of fabrication of the underlying history. 

4. However, I do not accept that the Tribunal’s conclusion could not be drawn.  I accept the submissions of the Minister’s counsel that the reasoning of the High Court in relation to a similar contention in Minister for Immigration and Citizenship v SZGUR (supra) at [37] to [39] in the judgment of the Chief Justice and Kiefel J and [79] to [89] in the judgment of Gummow J, is applicable a fortiori. 

5. I also accept that in the present case:

   It was for the Tribunal to determine the weight to be given to an expert psychologist’s opinion, having regard to the other evidence before it that supported or undermined the supposed facts upon which the opinion was to be based. (See Kenny J in Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 at [31])

   Even supposing that the present STARTTS report could be charactered as “an expert psychologist’s opinion,” in my opinion, paragraph 74 of the Tribunal’s decision shows that it has carefully addressed the reasons for the applicant giving “generalised and vague evidence” from time to time, and whether this was a symptom of mental illness.  It concluded, because of the contrasting nature of his presentation in the course of the hearing, in which he had also shown an ability to “recall precise details” of other aspects of his claims, that it should not assess the defective parts of his evidence benignly. 

6. In my opinion, this reasoning was open to the Tribunal as a matter of law.  It was rational, and open to the Tribunal on the evidence before it.

7. For all the above reasons, I am not persuaded that the submissions made to me today have identified any jurisdictional error affecting this decision.  The decision is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM.

Date:  27 March 2012