SZTNG v Minister for Immigration
[2015] FCCA 546
•13 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTNG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 546 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Assessor denied the applicant procedural fairness by not putting him on notice of material information and failed to take account of all of the integers of his claim. |
| Legislation: Migration Act 1958, ss.36, 46A, 195A |
| Cases Cited: Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 |
| Applicant: | SZTNG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 2848 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 23 February 2015 |
| Date of Last Submission: | 23 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Keller and Mr P. Kondic |
| Solicitors for the Applicant: | New South |
| Counsel for the First Respondent: | Mr M. Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2848 of 2013
| SZTNG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran who arrived at Christmas Island by boat on 11 March 2011. He lodged an application for a Protection Obligations Determination (“POD”) dated 15 May 2011 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 27 July 2011 an officer of the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Assessor”) who, on 20 June 2012, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the POD assessment and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Assessor: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Assessor’s recommendation. He seeks a declaration that the Assessor’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Assessor’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Assessor was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 5 to 31 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 5 April 2011:
a)from 2007 to 2010 he had been self-employed selling clothes and had twice travelled to Turkey in 2010 to obtain stock for the shop;
b)he had attended a number of political protests in Iran in 2009 and 2010. He had been arrested at a 2009 demonstration and held for three or four days in a dark room where twenty-five people were bashed;
c)after his arrest the Basij came to his clothing shop and “took everything” and closed the shop because they said his goods were un-Islamic and illegally imported from Turkey;
d)he was often pulled over in his car because his music was too loud and was often stopped with his girlfriend and questioned about their relationship;
e)during his detention in 2009, he had made a friend who then kept calling him. In February 2011, the friend informed him that there was going to be a big protest. The applicant attended the protest which was peaceful until “the Basij came and caused fights”;
f)after that protest, some of his friends were arrested and he became worried for his own safety as he thought his friends would give the government his name. As he had participated in previous riots, he thought it would be better for him and his family if he left Iran, which he did two days later on 22 February 2011; and
g)he feared returning to Iran because he feared that he and his family were not safe there and that he would be imprisoned for a long time or detained and beaten. The Basij had not threatened him but they had taken everything he had.
POD application
In a statutory declaration declared on 15 May 2011 in support of his application for a POD, the applicant made the following additional claims:
a)he had been arrested by plain-clothed Basij at a protest in Tehran following the 2009 presidential election. While in detention, the Basij beat him and asked him why he had participated in the protest and who his leader was;
b)in July 2009, approximately one month after the demonstration, plain-clothed Basij came to his store and shut it down. He transferred the remainder of his stock to his brother’s store and became depressed;
c)he attended a demonstration on 14 February 2011. The Basij attended and dispersed the demonstrators. Some demonstrators were arrested and a Kurdish man was killed by authorities;
d)“they” were planning to have a ceremony seven days after the Kurdish man’s death but the Basij arrested two of the applicant’s friends one day before the ceremony;
e)he thought it would only be a matter of time before he would be arrested as he would be seen to be a leader because he had recruited demonstrators; and
f)he would be harmed or killed by the Iranian authorities because he had sought protection in Australia, had participated in anti-regime protests and had recruited protestors.
At his POD interview on 18 May 2011 the applicant also claimed:
a)he had not engaged in any political activities prior to the June 2009 presidential election;
b)during his detention in 2009, he was severely beaten and bruised but did not seek medical treatment. He lost weight and became depressed after being detained and losing his shop. It had been his first encounter with any authorities;
c)prior to the protest in February 2011, he was encouraged by his friend to recruit people to attend the protest. He gathered fifteen or sixteen long-term friends at sporadic face-to-face meetings;
d)he escaped arrest at the February 2011 protest but seventy-two people were executed; and
e)his business had been closed because he was seen as a political opponent and the authorities had used the Islamic moral code and restrictions on foreign imports as an excuse.
Proceedings before the Assessor
On 29 August 2011 the applicant’s representatives provided a forty-page written submission to the Assessor in relation to the applicant’s claims for protection. On 7 December 2011, the Assessor received a further written submission from them which argued that the applicant continued to suffer from significant mental health problems, including suicidal thoughts, and asked the Assessor to take the applicant’s mental health into consideration when conducting the hearing and assessing his overall credibility. The applicant’s representative also provided original and translated copies of an alleged summons claimed by the applicant to have been received by him after his POD interview. The summons, purportedly issued on 22 June 2011, stated that the applicant was required to attend the Tehran Revolutionary Court on 28 June 2011 in order to investigate his participation in an anti-regime protest and a public safety disturbance. It further stated: “Non-attendance will lead to arrest”.
The applicant was interviewed by the Assessor on 13 December 2011 at which point he made the following additional claims:
a)he attended his first demonstration one or two days after the 2009 election. He was arrested at another demonstration two or three days after the election. He then stated that the demonstrations started four or five days after the election;
b)the second demonstration was peaceful until the Basij and Sepa came and tried to arrest people. He was amongst people who were shouting slogans. He tried to run away but fell and was arrested. He was blindfolded and his hands were tied behind his back. He was then taken to a detention centre where he was kept in a room with twenty or twenty-five other people and interrogated and beaten every day for four days;
c)he had participated in any further demonstrations until February 2011 because he had been too scared to demonstrate and there had only been small demonstrations during that period;
d)he attended the February 2011 demonstration. The demonstration was peaceful at the beginning but the police and plain-clothed forces attacked them with batons and knives and people ran. The authorities tried to arrest him at the demonstration but he escaped;
e)two of his friends had been arrested by the Basij but he did not know what had happened to the rest of his group. He was concerned that he or his friends had been photographed at the demonstration and that the authorities would come after him because he had advised others to participate in the demonstration;
f)his brother had told him two months earlier about the summons for his, the applicant’s, attendance in court. The police gave the summons to his brother who told them that the applicant was not in Iran. His brother had not told him how the police reacted to that information;
g)he had previously been issued with a summons for a drinking offence;
h)if he had not left Iran he would have been given a long gaol term or executed;
i)he had operated his clothing business for one or two years prior to the 2009 elections. Inspectors came to his shop ten or fifteen days after he was released from detention in 2009 and confiscated a lot of clothes that they believed to have been un-Islamic. He confirmed that the inspectors confiscated Turkish clothes but allowed him to keep the clothes made in Iran. However, many other shops imported clothing and material from Turkey without problems; and
j)the inspectors took away his business licence and told him to go home and apply for a new permit but he never did as it would have been obvious that the permit had been cancelled and he would not have been provided with a new one.
On 9 January 2012 the applicant’s representatives provided further submissions enclosing untranslated copies of his work permit for the shop and a summons issued to him in relation to an offence for the consumption of alcohol. The submissions also enclosed twenty-four pages of health reports prepared by mental health nurses and psychologists, commencing on 2 April 2011 and ending on 26 December 2011. The representatives relevantly summarised the information in those reports:
[The applicant] continues to suffer from significant mental health problems, including suicidal thoughts, flashbacks, insomnia, deteriorated memory, auditory disturbances, numbness, loss of mobility , deteriorated concentration and depressive symptoms … Our client has had ongoing difficulties expressing himself clearly and appropriately …
On 17 January 2012, 9 March 2012 and 27 March 2012, the Assessor wrote to the applicant’s representative seeking further information from the applicant about his claims and inviting him to comment on concerns the Assessor held about his claims and evidence. The applicant’s representative responded on 8 February 2012 and 4 April 2012. In the latter document, the applicant’s representative relevantly submitted that:
Since his arrival in Australia, [the applicant’s] state of mental health has deteriorated greatly. His medical records (previously provided to you) clearly indicate that [the applicant] is not currently in a position to support himself (with his mental health concerns restricting his ability to work) and that he requires ongoing mental health care. We are concerned that [the applicant’s] ability to subsist in Iran – as a person whose ability to work is severely restricted by his mental health – may be seriously jeopardised.
Assessor’s findings and reasons
After discussing the claims made by the applicant and the evidence before her, the Assessor found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36 of the Act. That finding was based on the following findings and reasons:
a)the Assessor found that the applicant was not a generally credible witness and that the evidence he had given was implausible and changeable, unsupported by independent information and inconsistent with country information and previous interviews and statements. The Assessor also considered the answers the applicant had provided in response to her questions had been superficial, evidently memorized and frequently evasive, and that his regular need for clarification of her questions arose not because he did not understand the questions, but because the events had not taken place as he alleged and he was seeking further direction as to what would be the “right answer”. Further, the Assessor considered that the applicant’s accounts lacked the content she would expect from someone with the applicant’s claimed experiences and political motivations and she felt that his continued references to independent country information were used to pad his claims and to distract from his own lack of relevant experiences;
b)the Assessor found that the applicant had not been a participant in any demonstration in June 2009, had not been arrested at a demonstration in Tehran in 2009 or mistreated in detention and therefore had not formed a friendship while in detention. It also found that the applicant had not attended a demonstration in Tehran in 2011, or organised a group of people to attend that demonstration, and rejected the applicant’s claim that he had fled Iran in fear of being arrested and harmed because he had been photographed or filmed at that demonstration or because his friends would name him to the authorities. It also rejected the applicant’s claim that a summons had been issued by the Tehran Revolutionary Court requiring him to attend the court in relation to his participation in an anti-regime protest in February 2011 or any other protest. In this connection, the Assessor:
i)referred to the applicant’s inconsistent evidence as to when he had attended demonstrations in June 2009 and noted that, on any account, the applicant’s claims were inconsistent with independent evidence about the way arrests had taken place during the post-election period;
ii)considered the applicant’s account of both demonstrations simplistic, superficial and rehearsed;
iii)suspected that the applicant had not befriended someone during his detention in 2009 and that none of the discussions and activities which he claimed flowed from that friendship had taken place. In this regard, the Assessor referred to his vague and unforthcoming evidence about his friend, to the fact that the applicant had not referred to the friend by name in any of his three interviews or in his statutory declaration and had not contacted or enquired after that friend or the other friends who had attended the demonstration in February 2011;
iv)found that the applicant had provided inconsistent evidence about how and when he learned about the February 2011 protest;
v)accepted, despite inconsistencies and lack of detail in his account, that at some time after the 12 June 2009 election and prior to the applicant leaving Iran, the Basij and Amaken came to his shop and seized some un-Islamic clothing and his business licence. However, the Assessor rejected the assertion that no plausible explanations existed for these actions other than that they were punishment for the applicant’s participation in the rallies. It considered that the crackdown on un-Islamic behaviour after the election and the applicant’s conviction for drinking alcohol meant that alternative explanations existed for his business being targeted by the Basij and the Amaken; and
vi)considered that the applicant’s willingness to depart Iran for Turkey twice in early 2010 informed the totality of his evidence regarding his claims to have been arrested and beaten in June 2009 and indicated a lack of fear of the authorities at that time;
c)while the Assessor accepted that the applicant held a political opinion opposed to the Iranian regime of the time, she found that he had not publicly expressed such opposition through attendance at public rallies or protests in Iran or Australia. That being so, and in the absence of any evidence to the contrary, the Assessor found that the applicant had no desire to express such opinions publicly in the reasonably foreseeable future;
d)the Assessor rejected the claim that the applicant’s actual or imputed political opinion had led to the closure of his shop. The Assessor considered that there was no evidence before her that gave rise to a concern that the applicant would be physically ill-treated because he had sold un-Islamic clothing or that he held any genuine or objective fear of persecution in the form of a threat to his capacity to subsist or earn a livelihood as a result of his shop’s closure. Further, while the Assessor accepted that the applicant had become despondent about his future after his shop closed, there was no evidence before her to support a finding that he had suffered any resulting significant mental harm; and
e)the Assessor did not accept that the applicant possessed a well-founded fear of persecution by reason of his status as a failed asylum seeker, either due to an imputed political opinion or by membership of a particular social group such as repatriates from a Western country, failed asylum seekers repatriated from a Western country or returnee for any reason. Whilst it accepted that the applicant would probably be questioned by Iranian authorities upon his return to Iran due to his protection visa application and that they would be particularly interested in monitoring his business activities, it did not accept that such actions would amount to significant harm.
In making the above findings, the Assessor had particular regard to the applicant’s allegedly impaired mental health and its potential impact on his evidence. The Assessor noted submissions made on behalf of the applicant which claimed that he had experienced mental illness since arriving in Australia, that his mental health had deteriorated greatly and that he was consequently not in a position to work and required ongoing mental care. However, the Assessor considered that there was no confirmation of a medical diagnosis of mental illness in the evidence before her and insufficient evidence to support the applicant’s claim that he had suffered from a medically-recognized mental illness while in Australia or from memory loss because he was mentally unwell or in a fragile mental state. Nevertheless, the Assessor took the applicant’s mental health claims into consideration when assessing his general credibility.
Proceedings in this Court
In his amended application, the applicant alleged:
1.The Second Respondent denied the Applicant procedural fairness.
Particulars:
a)A paragraph [231] of the recommendation, the Second Respondent relied upon reports regarding 19 of the 40 medical appointments attended upon by the Applicant between 2 April and 26 December 2011;
b)A paragraph [232] of the recommendation, the Second Respondent held that there was “no confirmation of a medical diagnosis of mental illness” in these documents;
c)At paragraph [233] of the recommendation, the Second Respondent noted that the applicant on at least one occasion “had fabricated claims that mental health services failed to provide him with the services promised”;
d)At paragraph [233] of the recommendation, the Second Respondent noted that the Applicant had not been deliberately denied psychological services support in the months prior to his IPA interview, “as he claimed, and that he had refused this and other mental health support on several occasions”;
e)The material was “significant, adverse and credible” to the Second Respondent determinations and its relevance was not disclosed to the Applicant, denying him an opportunity to lead further evidence in regards to the state of his mental health and the allegations made by the mental health service providers contained in the reports.
2.The Second Respondent failed to take into account the full integers of the Applicant’s claim under the complementary protection provision.
Particulars
a)At paragraph [315] of the recommendation, the Second Respondent noted that an integer of the Applicant’s claim under complementary protection included that his mental health “has deteriorated greatly such that he is not in a position to work and currently requires ongoing mental health care”;
b)A paragraph [315] of the recommendation, the Second Respondent dealt with this integer of the claim by expressly referring to findings made in regards to the Applicant's ability to participate in the hearing, noting that “I repeat there is insufficient evidence before me to support such a finding”;
c)At paragraph [231], that the Applicant claimed to have “attended 40 medical appointments between 2 April and 26 December 2011” and that “reports from 19 of those appointments were provided”;
d)The reports noted that, following Mental State Examination Assessments conducted by the International Health and Medical Services, the Applicant was “manifesting depressive symptoms” [CB 187]; insomnia:, “nightmares”, “poor appetite”, reported weight loss”, “low energy levels” [CB187]; had been admitted to hospital having cut himself with a blade and having “head butted a fence” [CB 186]; that he had been referred to a GP for urgent anxiety management [CB 185]; was reporting difficulties at self control [CB 183]; that he had “self harmed with a piece of glass [CB 180]; that he had been offered cognitive behavioural therapy [CB 179]; of suicidal ideation [CB 178]; that he had been referred for trauma counselling [CB 177]; that he had been medicated using “Diazepam 5mG for sleeping” [CB 176]; that it was noted that he “would deteriorate while in detention” [CB 175].
e)In finding at paragraph [238] of the Recommendation that the Second Respondent did not have “sufficient evidence on which to base a finding that the [Applicant] was suffering from a recognised mental illness at the time of his IPA interview or at any other time since arriving in Australia”, the [Assessor] either failed to take into account the declining picture of mental health demonstrated by the information before the Assessor or made a finding so unreasonable that no reasonable person would have made it.
The third ground of the application was not pressed.
Ground 1
In the first ground of the application the applicant alleged that the Assessor had denied him procedural fairness by not disclosing to him the relevance to her determination of certain material which was “significant, adverse and credible”. The material in question was set out in the particulars of the allegation.
In his written submissions the applicant argued that:
a)the Assessor observed at para.231 of her reasons that the medical reports supplied to her were, relevantly, an accurate but not complete record of what the applicant had said to the service provider;
b)the Assessor “harboured concerns regarding the completeness of the record” but did not raise those concerns with him;
c)the Assessor rejected the contents of the reports and his advisers’ submissions “without placing him on notice”. The applicant did not identify what should have been notified to him; and
d)the Assessor failed to put him on notice “as to the rejection of the mental health evidence”.
A party liable to be affected directly by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests. In order that that right can have substance, the party affected is to be given the opportunity of ascertaining the relevant issues, which will require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The party affected is also entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission: Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162 [32]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9].
The information to which the applicant referred in the particulars of this allegation was information which he had supplied to the Assessor, whether in written submissions or in his evidence to her. Consequently, it was not information which needed to be advised to him. Further, the relevant duty is to give an applicant information, not to say why that information may be relevant. A party provided with information by a decision-maker is assumed to appreciate whether the information is adverse to his or her case. So much is implicit in the requirement that the decision-maker give notice of adverse conclusions only if they would not obviously be open on the known material. The implied ability to identify conclusions which are obviously open to be drawn from the known material is based on an assumption that the party can identify whether information is supportive of or adverse to his or her position. Procedural fairness does not require a decision-maker to question that assumption or to independently ensure that a party provided with information understands why it is relevant.
The issue of the applicant’s mental health was one which the applicant himself had raised so it did not need to be advised to him by the Assessor. Further, the possibility that the Assessor might not accept the applicant’s claims in this regard was always an obvious one and so did not need to be advised to him.
The “concerns regarding the completeness of the record” apparently harboured by the Assessor were not the basis of any conclusion material to her finding that the medical reports did not include any diagnosis to the effect that the applicant had a mental illness and so did not need to be advised to the applicant on that account. Moreover, the Assessor’s statement was a reflection of her analysis of the documents supplied by the applicant and consequently not a matter which had to be advised to him unless it expressed a conclusion which was not obviously open on the known material, which it did not: SZBEL at 166 [48]; Alphaone at 591.
For the same reasons the Assessor did not need to advise the applicant that she might not conclude from the medical reports that he had a mental illness.
The allegation that the Assessor rejected the medical reports misrepresents what happened. The reports contained no diagnosis regarding the applicant’s mental health and in the absence of an expert opinion that the applicant had a mental illness, all the Assessor relevantly did was to conclude that there was insufficient evidence that he did have one. That was not a rejection of the reports, just an unexceptionable recognition of their limited content.
For these reasons the alleged denial of procedural fairness is not proved.
Ground 2
In the second ground of the application the applicant alleged that the Assessor should have concluded that he had a mental illness and that no reasonable assessor would have concluded otherwise. He submitted that because the Assessor had not reached that conclusion she had “erred in dealing with the full integers of the Applicant’s claims under complementary protection”.
The Assessor’s conclusion on the applicant’s mental health was based on the absence of expert medical evidence that he had a mental illness. A decision so based is not one which no reasonable assessor would have made. In all other respects the second ground of the application amounted to an invitation to the Court to substitute the Assessor’s views of the evidence with its views on that evidence. The Court is not empowered to do that in these judicial review proceedings.
Conclusion
The applicant has not demonstrated that the Assessor’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
The Court acknowledges with thanks the assistance provided to it by the applicant’s pro bono counsel, Mr Keller and Mr Kondic, who lucidly presented a case which had been prepared by other counsel who was unavailable to appear at the hearing.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 13 March 2015
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