SZUJN v Minister for Immigration
[2016] FCCA 362
•26 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUJN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 362 |
| Catchwords: MIGRATION – Judicial review – application for review of recommendation made by an independent protection assessor (IPA) that applicant not be recognised as a person to whom Australia has protection obligations – whether IPA’s duty to accord procedural fairness required IPA to confront applicant with previous inconsistent statement on the basis of which the IPA in part relied for making an adverse credibility finding in relation to the applicant – whether IPA failed to consider psychological opinion – IPA failed to accord procedural fairness to applicant. |
| Legislation: Evidence Act 1995 (Cth), s.43 |
| Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214 |
| Applicant: | SZUJN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | JULIE COWDROY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 1402 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 18 March 2015 |
| Date of Last Submission: | 19 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr P M Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
DECLARATION
The recommendation of the Independent Protection Assessor made on 24 October 2012 in review case number SER009 was arrived at in breach of the rules of procedural fairness.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1402 of 2014
| SZUJN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| JULIE COWDROY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a national of Iran, seeks declaratory and injunctive relief in relation to a recommendation made by the second respondent (IPA) that the applicant not be recognised as a person to whom Australia has protection obligations. The applicant claims that in arriving at her recommendation, the IPA denied the applicant procedural fairness, and failed to take into account relevant considerations.
There is no issue between the parties that the IPA was under a duty to accord the applicant procedural fairness and that, if I were to find the IPA failed to accord procedural fairness, it would be appropriate for the Court to make a declaration to the effect sought by the applicant. Nor is there an issue that if the applicant were to establish the other grounds on which he relies, it would also be appropriate for the Court to grant the declaratory relief sought by the applicant.
I begin with the applicant’s claims for protection.
Claims for protection
The applicant stated the grounds on which he claimed protection at an “Entry interview” on 23 August 2011. According to a document that recorded the substance of what the applicant said at the interview, the applicant claimed he left Iran because he was tortured and raped by his stepfather.[1] The applicant claimed that when he was ten years old, his mother left the applicant’s father. The applicant’s mother was informed it was “not good not to have a husband” and was told there was an “old man” who was looking for a wife.[2] The applicant’s mother then married the old man. The applicant’s mother, however, contracted multiple sclerosis, and the applicant’s stepfather responded to the applicant’s mother’s illness by deciding he was no longer interested in the applicant and his mother. The stepfather informed the applicant that if the applicant wanted to look after his mother, the applicant would have to go out and work.
[1] The first respondent filed two bundles of relevant documents, the first on 8 July 2014 which I will refer to as “CB1”, and the second on 21 July 2014 which I will refer to as “CB2”; CB1, page19-20
[2] CB1, page 19
Because he had to work and look after his mother, the applicant did not pass his exams. The applicant’s school, therefore, wanted to speak with the applicant’s stepfather. The stepfather came to school. In the presence of students and teachers, the stepfather smacked the applicant, swore at him, and told the applicant he did not deserve the life the stepfather had provided for him.
The applicant’s stepfather forced the applicant to sell compact disks at the market. That was not legal and the applicant was arrested by police. Because he was a minor, the police took the applicant to his stepfather who “denied it and told the police he had no idea”.[3] After each of these incidents with the police, the stepfather kicked the applicant and his mother. On one occasion, the applicant ran away to his uncle’s house, and his uncle went to the stepfather and asked why he was abusing the applicant.
[3] CB1, page 19
At another time, the stepfather told the applicant how sorry he was for his behaviour. The stepfather wanted the applicant to touch him, and the applicant realised the stepfather was a paedophile. One night the stepfather came into the applicant’s bedroom and attempted to rape him. The applicant woke his mother with his shouting. The mother began to shout. The stepfather smacked the applicant’s mother, breaking her nose and teeth. The stepfather kicked the applicant as he tried to help his mother. The applicant ran away from home and spent a few nights in a park.
Eventually, the police caught the applicant and then called the stepfather. The applicant told the police the stepfather smacked him, but the applicant could not bring himself to tell them that the stepfather attempted to rape him. The stepfather took the applicant back to his home. He shaved the applicant’s hair, kicked him, and locked all doors in the house. After a few days, the stepfather told the applicant he was not interested in women, that “he loved boys”, and that if the applicant were kind to the stepfather and satisfied him, the stepfather would allow the applicant and his mother to stay, and he would buy medication for the applicant’s mother.[4] The stepfather raped the applicant “a few times”.[5]
[4] CB1, page 19
[5] CB1, page 19
After the applicant’s mother realised what was happening, the applicant ran away. His mother begged him not to return to the house. The applicant went to his uncle and told him what had occurred. The uncle advised the applicant it was best he should leave the country. The applicant refused because he could not leave his mother alone.
One night, because he was upset and angry, the applicant went to the stepfather’s shop, did some damage, and stole $800. The stepfather reported the applicant to the police, claiming the applicant had stolen 50 million Tooman. The stepfather went with the police to the applicant’s uncle’s home, but the applicant’s uncle stated the applicant was not there. The applicant then left Iran because he was tortured and raped by his stepfather, and because the police were after him.
The applicant again stated the grounds on which he claimed protection in a statutory declaration that accompanied the applicant’s request for a Protection Obligations Determination he made on 10 October 2011.[6] In addition, the applicant was interviewed on a number of occasions where he again gave evidence in support of his claims.
[6] CB1, page 72-76
The IPA’s decision
The IPA did not find the applicant to be a reliable, credible, or truthful witness.[7] The IPA relied on the following matters:
a)The applicant gave inconsistent evidence about his age. At interviews he attended on 22 June 2011 and 7 August 2011, the applicant was recorded as claiming he studied psychology at university. When at an interview held on 29 August 2011 it was put to the applicant he had claimed this, the applicant claimed he did not say it. Yet, at the interview before the IPA, the applicant admitted he had been lying about that issue.[8]
b)The applicant, when at Christmas Island, made a telephone call to a person named H whom he said was his father. When the applicant was asked about this during the interview of 29 August 2011 he claimed he had called his uncle also known as H. When asked about the telephone call at an interview on 13 October 2011, the applicant said the telephone call was to his friend.[9]
c)The applicant had produced documents “which has [sic] found to be fraudulently altered”.[10] That was a reference to a document described as an Iranian nationality book.[11] The IPA did not accept the applicant had no knowledge of any alteration of the document.
d)The applicant claimed he had received treatment for pain or injury to his back passage at a hospital where he claims he was provided with tablets. The only evidence the applicant provided in support of that claim, however, were extracts from presentations at the Northern Immigration Detention Centre, none of which related to the applicant being given tablets, and which related to rashes on the applicant’s chest.[12]
e)The applicant gave inconsistent evidence of the circumstances of the sexual assaults to which he claims he was subjected.[13]
[7] CB1, page 131, [85]
[8] CB1, page 132, [87]
[9] CB1, page 132, [89]
[10] CB1, page 132, [90]
[11] CB1, page 126, [54]
[12] CB1, page 132, [91]
[13] CB1, page 133, [93]
Ground 2 – denial of procedural fairness
The further amended application on which the applicant relies contains six grounds of application. The applicant, however, does not press ground 1. The first ground I will consider, therefore, is ground 2.
Ground 2 claims the IPA failed to provide the applicant with an opportunity to address what the applicant claims were two issues that arose in the review. The first of the two asserted issues, as described in the application, was whether “the applicant’s evidence concerning the identity of the person he had called from Christmas Island undermined his credibility such that the [IPA] might as a consequence disbelieve key aspects of his claims”. Towards the end of the hearing, counsel withdrew this part of the applicant’s case. Had counsel not done so, I would have found against the applicant on this part of his case.
The second of the two issues the applicant submits the IPA failed to provide the applicant with an opportunity to address was whether the “applicant’s evidence concerning where he had been sexually abused by his uncle [sic] undermined his credibility such that the [IPA] might as a consequence disbelieve key aspects of his claims”.[14] This ground refers to the IPA’s finding that the applicant was “careless with the truth”.[15] The IPA based this conclusion in part on the applicant having made inconsistent statements. The inconsistent statements were, on the one hand, the applicant’s having told the IPA, and having stated in a statutory declaration, that the sexual abuse to which he was subjected occurred at the family home and, on the other hand, the applicant’s having stated at the entry interview that the sexual abuse occurred “at home, but mainly at the real estate shop”.[16]
[14] Applicant’s further amended application, [2(ii)]
[15] CB1, page 133, [93]
[16] CB1, page 133, [93]
There is no issue that the IPA did not put to the applicant that, contrary to the statement the applicant made to the IPA that the sexual abuse occurred at the family home, the applicant had at an earlier occasion stated that the sexual abuse had occurred mainly at the stepfather’s real estate shop. The question this part of the applicant’s case raises, therefore, is whether the duty to accord procedural fairness required the IPA to alert the applicant that he had made a statement on earlier occasions which was inconsistent with what he subsequently said to the IPA, and to offer the applicant an opportunity to consider and make submissions about whether he made such statement, whether the statement was potentially inconsistent with what he had told the IPA and, if he accepted it was inconsistent, whether he had any explanation for the inconsistency.
As a general rule, a decision-maker who is under a duty to accord procedural fairness cannot rely on material that is adverse to the interests of the person who will be affected by the decision without disclosing that material to the person affected (affected person), and giving that person an opportunity to address the material. This point was made by Brennan J in Kioa v West in a passage that has been frequently quoted:[17]
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise . . .. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.
[17] [1985] HCA 81; (1985) 159 CLR 550 at [38]
The cases provide some guidance of the type of adverse information on which the decision-maker may intend to rely that may give rise to an obligation of disclosure. In Kioa v West, Brennan J said that “in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”.[18] That implies that the obligation of disclosure does not extend to information that is not credible, relevant, or significant. In Frost v Kourouche Leeming JA noted that it was common ground that the content of the duty to accord procedural fairness by the decision-maker in that case “extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond”.[19] His Honour observed that this “is consistent with what has often been held, in a wide range of contexts”. [20] It has also been said that a decision-maker’s duty of disclosure does not extend to a decision-maker’s “thought processes or provisional views for comment before making the decision”.[21] That, however, has been stated to be subject to an important qualification, namely, that the “decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material”.[22]
[18] [1985] HCA 81; (1985) 159 CLR 550 at [38]
[19] Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214 at [32]. Beazley P and Basten JA agreed with his Honour’s reasons.
[20] Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214 at [32]
[21] Minister for Immigration and Citizenship v SZGUR[2011] HCA 1; 241 CLR 594 at [9] (French CJ and Kiefel J)
[22] Minister for Immigration and Citizenship v SZGUR[2011] HCA 1; 241 CLR 594 at [9] (French CJ and Kiefel J)
In my opinion, the IPA was required to inform the applicant the IPA was of the view that the applicant had given evidence on a previous occasion about his having been sexually abused which was or which may have been inconsistent with the evidence the applicant gave to the IPA about sexual abuse. Why? The IPA relied, at least in part, on the inconsistency between what, on the one hand, the applicant had said at the entry interview and what, on the other hand, the applicant told the IPA and stated in a statutory declaration, to make a significant adverse finding against the applicant, namely, that the applicant was “careless with the truth”.[23] That is a conclusion that could not but have affected to a material degree the IPA’s overall assessment of the applicant’s credibility, and her decision not to recommend the applicant was a person to whom Australia had protection obligations.
[23] CB1, page 133, [93]
It is true there were other matters on which the IPA relied, and on which the IPA probably relied in greater degree, in concluding the applicant was not a credible witness. As was said by the Full Federal Court in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs, however, “an assessment of credibility is not necessarily linear”.[24] In support of that observation, the Full Federal Court referred to what Gleeson CJ said in Re Refugee Review Tribunal; Ex parte Aala:[25]
Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.
[24] [2005] FCAFC 117 at [79]
[25] [2000] HCA 57; (2000) 204 CLR 82 at [4]
The Full Federal Court also referred to the following passage from Kirby J’s judgment in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs:[26]
[D]ecision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.
[26] [2004] HCA 62; (2004) 221 CLR 1 at [81]
Had the applicant been given an opportunity to address what the IPA considered to be the making of inconsistent statements, the applicant may have given an explanation that would have satisfied the IPA that the inconsistency did not manifest carelessness with the truth. Not only may that have resulted in one less matter on which the IPA could have relied for making an adverse assessment of the applicant’s credit; the applicant’s explanation may have afforded a basis for the IPA to reassess adverse impressions she had reached on the basis of other matters. It of course forms no part of my function to assess the probability of the applicant giving an explanation that may have had these consequences. All I can say is that I cannot be satisfied that, had the IPA confronted the applicant with the prior inconsistent statement, the applicant would not or could not have given an explanation that may have had these consequences.
Counsel for the Minister submitted that “inconsistencies between versions of events are part of those thought processes which don’t need to be put to an applicant”.[27] I disagree. The existence or non-existence of inconsistent statements is a matter of fact; and the significance of the inconsistent statements to the decision-maker’s assessment of the credibility of the affected person who uttered them often depends on additional evidence, usually on evidence which it is only within the power of the affected person who made the statements to give. Assuming inconsistent statements have been made, it is the potential availability of evidence in relation to the inconsistent statements from the affected person who made them which ordinarily gives rise to an obligation by the decision-maker to confront the affected person with the inconsistent statements. It is only through such confrontation that the affected person is given an opportunity to say whether he or she made the inconsistent statement; and, if the affected person agrees he or she did so, to provide an explanation for the inconsistency.
[27] T44.25
These considerations underpin the procedures that apply in our courts whenever a party seeks to impeach a witness’s credibility by showing the witness made a prior inconsistent statement. Under modern rules of procedure, proof of a prior inconsistent statement said to have been made by a witness is not permitted unless the witness is first given notice of the inconsistency and the witness does not admit he or she made the prior inconsistent statement.[28] One of the purposes of this requirement is “to give the witness a fair chance to explain the discrepancy”.[29] The IPA was not, of course, a court. Nevertheless, the principle that underlies the procedures adopted in our courts illustrates the importance of giving a person who is said to have made a prior inconsistent statement notice of the inconsistent statement for the purpose of addressing it, either by denying it or by explaining it. It may be inferred that it was for these reasons that Leeming JA, in Frost v Kourouche, referred without any disagreement to the parties in that case accepting that the duty to afford procedural fairness “extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond”.[30]
[28] See, for example, s.43 of the Evidence Act 1995 (Cth)
[29] McCormick on Evidence, 7th edition, Thomson Reuters at 218
[30] Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214 at [32]. Beazley P and Basten JA agreed with his Honour’s reasons.
Ground 2 of the applicant’s claims, therefore, succeeds.
Ground 3 – failure to take into account opinion on age
The third ground of review is that the IPA failed to take into account a relevant consideration, namely, the opinion given by Ms Kathryn Parle in a psychological report dated 16 April 2012.[31] Ms Parle is a counsellor registered as a clinical member of the Counsellors and Psychotherapists Association; and she is an employee at Melaleucas Refugee Centre as a Torture and Trauma Counsellor and Advocate. The opinion the applicant claims the IPA did not consider was Ms Parle’s opinion that the applicant’s “psychosocial, physical and emotional development appears to support the veracity of his claim relating to his age, now 18”.[32]
[31] CB2, pages 27-30
[32] CB2, page 28
I do not accept Ms Parle’s opinion was a “relevant consideration” as that expression was used by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[33] As his Honour noted in that case, what factors a decision-maker is bound to consider in making the decision in question “is determined by construction of the statute conferring the discretion”.[34] The applicant has not made any submission which identifies any statutory provision which required the IPA to take into account Ms Parle’s opinion or evidence in the nature of Ms Parle’s opinion.
[33] [1986] HCA 40; (1986) 162 CLR 24 at [15]
[34] [1986] HCA 40; (1986) 162 CLR 24 at [15]
The true nature of the applicant’s ground is that the IPA failed to consider the applicant’s claims in the manner the Full Federal Court, in Minister for Immigration and Border Protection v MZYTS,[35] held the Refugee Review Tribunal (RRT) ought to consider claims for review before it. In MZYTS the Full Federal Court held that considering a claim required the RRT to do more than simply refer to the claim. The RRT was required to assess in a “real or active way” the applicant’s claims;[36] manifest a “consciousness of the contents” of the claim, “as opposed to their existence”;[37] and manifest an evaluation of the material and a “process of weighing evidence and preferring some over the other”.[38] The applicant also relied on Minister for Immigration and Border Protection v CZBP where the Full Federal Court said that it “was well-established that a failure by the Tribunal to evaluate and weigh the evidence or claims before it constituted a jurisdictional error” and that “such a failure could be inferred from the absence of any reasoning process that evaluated the evidence”.[39]
[35] [2013] FCAFC 114
[36] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [39] (Kenny, Griffiths, Mortimer JJ)
[37] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [41] (Kenny, Griffiths, Mortimer JJ)
[38] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [50] (Kenny, Griffiths, Mortimer JJ)
[39] [2014] FCAFC 105 at [63] (Gordon, Robertson, Mortimer JJ)
As the Minister has submitted, MZYTS and CZBP are cases that deal with the RRT’s powers and obligations. The Minister, nevertheless, accepts there is authority to the effect that an assessor may, in certain circumstances, fall into error if it overlooks evidence. That authority is SZRBA v Minister for Immigration and Border Protection,[40] where the Full Federal Court found the assessor in that case denied the applicant procedural fairness by failing to consider a note that was prepared by the then Department of Immigration and Citizenship. The approach of the Full Federal Court in SZRBA to determining the obligations of an assessor to consider material appears in substance to be little different from the approach the Full Federal Court in MZYTS applied to determining the RRT’s obligations to consider material.
[40] [2014] FCAFC 81 (Siopis, Perram, Davies JJ)
The applicant submits the IPA did not consider Ms Parle’s opinion because the IPA did not refer to the opinion in those parts of the IPA’s reasons in which the IPA referred to and considered the applicant’s claims about his age. The Minister, on the other hand, submits I should not from these circumstances infer the IPA did not consider Ms Parle’s opinion because the IPA twice referred to Ms Parle’s report. Further, relying on the reasoning of Robertson J in Minister for Immigration and Citizenship v SZRKT,[41] the Minister submits that, even if the IPA did not consider Ms Parle’s opinion, Ms Parle’s opinion was of such nature as not to have obliged the IPA to consider it.
[41] [2013] FCA 317; (2013) 212 FCR 99 at [40]
In my opinion, the IPA did not consider Ms Parle’s opinion about the applicant’s age. That is not, however, because the IPA overlooked it; it is because the applicant, through his representative, did not rely on Ms Parle’s report as evidence of the applicant’s age. Ms Parle’s report was provided to the IPA in response to the IPA’s invitation that the applicant provide, among other things, “any medical evidence in relation to sexual abuse inflicted upon him”.[42] The applicant’s representative provided Ms Parle’s report in response to that invitation.[43] The representative letter’s annexes Ms Parle’s report, and quotes a passage from it which contains her conclusion that the applicant suffered from Type II Post Traumatic Stress Disorder (PTSD).
[42] CB2, page 7
[43] CB2, page 7
Further, there is nothing in Ms Parle’s report that could reasonably have suggested to the IPA that the applicant relied on Ms Parle’s report, not only as evidence that the applicant was suffering from PTSD, but also as evidence of the applicant’s age. There is nothing in the qualifications of Ms Parle, as stated in her report, that could reasonably have indicated to the IPA that Ms Parle had any expertise that could have qualified her to give an opinion about the applicant’s age that was worthy of any weight. And the report is devoid of any details of the “psychosocial, physical and emotional development” aspects of the applicant on which Ms Parle relied for concluding the applicant was 18 years of age, or of any reasoning that linked these aspects of the applicant to Ms Parle’s opinion about the applicant’s age.
It is true the representative’s letter noted that that information contained in his biodata interview is incorrect. The representative’s letter, however, did not refer to Ms Parle’s report in that context. That part of the letter, therefore, could not reasonably have been read by the IPA as relying on any part of Ms Parle’s report as evidence of the applicant’s age.
Ground 3 of the applicant’s claims, therefore, fails.
Ground 4 – failure to consider expert evidence of connection between mental illness and inconsistency in expression
The applicant claims that the IPA failed to consider the following passage from Ms Parle’s report:[44]
There may be questions about the veracity of [the applicant’s] claims. However, it is common for sufferers of complex inter-personal trauma to experience disorders of extreme stress (DESNOS) which may manifest [in] inconsistency in expression. Therefore though I cannot verify the details of [the applicant’s] claims I can say professionally that his symptoms are entirely consistent with the experience of severe multiple traumas.
[44] CB2, page 29
The applicant’s submission assumes that the applicant relied on this part of Ms Parle’s report as evidence to explain inconsistencies in accounts the applicant had given. That assumption is questionable. As I have already observed, the applicant’s representative provided Ms Parle’s report to the IPA as “medical evidence regarding sexual abuse”, not as evidence of any association between the applicant’s mental state and his ability to give reliable evidence.
In any event, I am not satisfied the IPA did not consider this part of Ms Parle’s report. The IPA said that she “had regard to the fact that the psychologist considers that the claimant has symptoms commensurate with a mental illness”.[45] Considered alone, this statement would include all symptoms Ms Parle identified as being consistent with the applicant having experienced severe multiple traumas. That would include “inconsistency in expression”, to the extent Ms Parle’s report could reasonably be read as stating that the applicant manifested that symptom.
[45] CB1, page 131, [84]
The applicant, however, relies on the following statement as indicating the IPA did not consider that part of Ms Parle’s report that referred to “inconsistency in expression”:[46]
I had regard to the fact that people with symptoms of post traumatic stress disorder have difficulties with memory, concentration difficulties and recall of significant events.
[46] CB1, page 131, [84]
The applicant submits that, because the IPA did not in this statement refer to “inconsistency in expression”, the IPA did not consider it. The logic of the submission is as follows:
a)in this statement the IPA purports to summarise opinions contained in Ms Parle’s report;
b)the IPA’s summary is imperfect because it omits reference to “inconsistency in expression”;
c)the IPA did not refer to “inconsistency in expression” because the IPA did not consider that matter.
The submission breaks down in (a). I am not satisfied the IPA purported to summarise what Ms Parle said about the symptoms of persons who suffer from PTSD. That is so because Ms Parle does not state in her report that persons who suffer from PSTD have difficulties with memory and with recalling significant events. The more likely inference is that the IPA referred to PTSD sufferers having difficulty with memory and the recollection of significant events from some other source or from her own general knowledge.
The applicant also relies on the absence from the IPA’s reasons of any evaluation of the reference to Ms Parle’s reference of “inconsistency in expression”. This submission assumes that Ms Parle’s reference of “inconsistency in expression” was such as ought reasonably to have led the IPA to evaluate its weight with other matters to which it might be potentially relevant. I do not accept that assumption. Ms Parle’s opinion, to the extent it can reasonably be read as referring to a symptom from which the applicant suffered, said nothing more than that it was consistent with the applicant having experienced severe multiple traumas. It is difficult to imagine how the IPA could have undertaken any evaluation of that claim against the matters the IPA considered.
Ground 4 of the applicant’s claims, therefore, fails.
Ground 5 – failure to take into account expert’s opinion
The applicant submits that the IPA failed to consider whether the opinions of Ms Parle that the applicant’s symptoms were consistent with the applicant suffering from PTSD corroborated the applicant’s claims.
I do not accept the applicant’s submission. The IPA referred to Ms Parle’s report and to the fact that in that report Ms Parle stated the applicant showed symptoms that were consistent with PTSD. I am not prepared to infer, therefore, that the IPA did not consider Ms Parle’s report.
Ground 5 of the applicant’s claims, therefore, fails.
Ground 6 – failure to consider complementary protection claim
The applicant claims the IPA failed to consider the applicant’s claims based on complimentary protection. The applicant submits that he claimed fear of physical harm and abuse at the hands of his stepfather, that the IPA recognised that the applicant claimed he feared physical abuse and that he claimed that his stepfather physically and sexually abused him; yet the IPA only considered whether the applicant had been sexually abused. The basis of the applicant’s submission is the IPA, when concluding she was not satisfied the applicant met the complementary protection criterion, referred only to her not being satisfied that the applicant was “subjected to sexual abuse by his stepfather”.[47]
[47] CB1, page 134, [99]
I do not accept this submission. It relies on an artificial bifurcation of the applicant’s claims into physical and sexual abuse. The applicant’s claims were based on one course of abuse by the stepfather, sexual and physical, the core or a substantial part of which consisted of sexual abuse. The IPA was aware the applicant’s claimed sexual and physical abuse. As the Minister submits, the IPA acknowledged that throughout the interviews the claimant had consistently claimed his stepfather physically and sexually abused him.[48] The two were inextricably bound. In those circumstances, I am not prepared to infer that in her consideration of the applicant’s claims based on complimentary protection, the IPA unbundled the applicant’s claims and directed her mind only to sexual abuse. I am therefore not prepared to infer, from the fact that the IPA omitted the words “physical abuse” in her conclusion, that the IPA was not satisfied the applicant was subjected to sexual abuse by his stepfather, yet the IPA did not consider the applicant’s claims that he was also subjected to physical abuse.
[48] CB1, page 132, [91]
Ground 6 of the applicant’s claims, therefore, also fails.
Conclusion and disposition
The applicant has succeeded on one of the five grounds on which he relied at the hearing. I propose, therefore, to make a declaration to the effect that the recommendation of the IPA was arrived at in breach of the rules of procedural fairness. It is not necessary that I grant an injunction against the Minister.
I will invite submissions on costs at the time I publish these reasons.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 26 February 2016
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