VGAP v Minister for Immigration - [2003] FMCA 327

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VGAP & ORS v MINISTER FOR IMMIGRATION

[2003] FMCA 327

MIGRATION – Application for review of Refugee Review Tribunal decision – whether bias, bad faith or failure to take into account relevant material – opinion in report – no jurisdictional error.

Migration Act 1958

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs(2002) 194 ALR 749
Minister for Immigration & Multicultural & Indigenous Affairsv SBAN [2002] FCAFC 431
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 668
Subramaniam v Minister for Immigration & Multicultural Affairs[2001] FCA 891
Subramaniam v Minister for Immigration & Multicultural Affairs[2002] FCAFC 255
Thirukkumar v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCAFC 268
Craig v South Australia (1995) 184 ALR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002
(2003) 198 ALR 59

Applicants:

VGAP
VGAQ
VGAR
VGAS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1070 of 2002

Delivered on:

17 October 2003

Delivered at:

Parramatta via tele-conference to Melbourne

Hearing Date:

2 April 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr J Gibson

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Dr C Beaton-Wells

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ1070 of 2003

VGAP, VGAQ, VGAR, VGAS

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background & Tribunal Decision

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 26 July 2002 affirming a decision of a delegate of the Respondent not to grant protection visas to the applicants.
The applicants, a husband and wife and their two children, are citizens of Turkey who arrived in Australia on 11 February 2001 as the holders of visitor visas. The husband lodged an application for a protection visa on 28 March 2001 which included his wife and children. On

5 March 2002 a delegate of the Minister refused to grant protection visas and on 8 March 2002 the applicants sought review of that decision.
The husband (referred to as the applicant) claimed to be an ethnic Kurd and Alevi born in 1961 on the Turkish mainland and a citizen of Turkey who had lived in Turkey and Northern Cyprus (also referred to as the Turkish Republic of Northern Cyprus or TRNC).
The applicant’s claims related to his time in Turkey as well as in the TRNC. He claimed that while at primary school in Turkey he was harassed and mistreated by teachers and visiting security officials because he was Kurdish and Alevi. From 1972 until 1974-5 he worked as an electrician with a family friend in a nearby town. He claimed that his mother died in 1974 or 1975 as a result of a beating by police and soldiers who were conducting a search in the village in which she lived. He claimed that she was assaulted because she did not understand the Turkish security officials who questioned her. The applicant claimed that shortly after her death he and his employer had been taken to a police station and tortured because of comments they had made about the mistreatment of Kurds by Turkish soldiers. He was aged about 14. He claimed that his employer died as a result of the torture at the police station and that from that time the police used to come around often and hit or torture him at home or take him to the police station and hit him there. He subsequently moved to Istanbul where he stayed for several years. He claimed that his ‘suffering’ continued during the four or five years he worked there. He began military service in 1980. He claimed to have been subject to torture and beatings almost every day because of his Kurdish background and to have been detained and interrogated about the opposition leaders in his home town and severely tortured for the last three months before his discharge. After his release he visited his family for a few months but because of continued beatings because he was Kurdish, Alevi and left wing, he returned to Istanbul. He claimed that he had difficulty obtaining employment because of his background and was often beaten and tortured by police and the military who had discovered that he was Kurdish. In 1982 he obtained a passport. He claimed that he could not obtain a visa for other countries because police guarded the embassies and prevented him from entering them because he was Kurdish.
The applicant moved to Northern Cyprus in about 1986 or 1987. On arrival he was insulted and assaulted by a policeman and warned not to complain. He claimed that on occasion plain clothes police would come to his house or to his father-in-law’s home, take them away and interrogate and beat them all night because they were Kurdish. The problems continued in Turkey when he visited his home town. He claimed that he was beaten up on a visit to his home in 1990 and detained, interrogated and beaten harshly on another visit in 1993 on both arrival and departure and that virtually every time he travelled to and from Turkey there were such incidents. He learned in 1994 that his brother had been shot dead in Turkey and decided not to visit Turkey (although in the Tribunal hearing he claimed that he had visited Turkey in 1994). He claimed that the treatment he was subjected to in Cyprus worsened. He worked as a bus driver until 1995 when he bought his own bus. In 1998 he bought a café business. He claimed that he received adverse attention from the authorities because the café was used by Kurdish people and that he was beaten by the police and tortured because he was Kurdish, Alevi and left-wing, watched Kurdish media TV and had newspapers in the café.
On one occasion in about late 1998 he was involved in a car accident. He claimed the ‘accident’ was premeditated and intended to harm him. He was badly injured and was taken to hospital by ambulance and left unconscious in the morgue until an attendant noticed that he was alive. He claimed that even while he was recuperating the authorities had continued to come to his home to ask questions and on a number of occasions had taken him away and questioned him for a few hours at a time. He decided to come to Australia as he felt that ‘they’ would have killed him one way or another or he would have died of fright if he remained in Northern Cyprus.
The applicant and his adviser provided a considerable amount of material to the Tribunal in relation to problems faced by Kurds in Turkey and Cyprus. Prior to the hearing the applicant provided a report from a Miss Arna Stewart, a registered psychologist and a Counsellor/Advocate with the Victorian Foundation for Survivors of Torture Inc dated 21 May 2002. The report described the incident involving the car accident as ‘extremely terrifying and traumatic’ and stated that the applicant suffered symptoms of major depressive disorder, recurrent, concluding that it was likely that he had suffered such symptoms since the death of his mother and his first experience of torture when he was fourteen. It also concluded that he suffered symptoms of post-traumatic stress disorder.
In addition the applicant discussed his claims at a Tribunal hearing. He reiterated his concerns about his past and his likely future. He also told the Tribunal that he was relatively wealthy, with family farms, an expensive house and a café in a prime position but that he could only operate his businesses because he paid large bribes to Turkish officials which were not required by ethnic Turks. He claimed that this was the only reason he was not killed in Cyprus and that he had unsuccessfully tried to obtain visas to other countries before he obtained his Australian visa. He also said that after his car accident occurred in March 1998 he stayed home but that uniformed police visited every day because he had a satellite TV dish and watched Kurdish programs. On one occasion the police came and took him to the police station and tortured him because he was Kurdish, Alevi and left-wing. His wife stated that he was taken away by police more than ten times after the accident and would come home with blood over his face but would not tell her what had happened. The Tribunal put to the applicant that there was an inconsistency between these accounts of events after his accident. The applicant stated that while he was beaten several times, he was tortured only once and that he did not regard beatings as torture because he was immune to beatings and was not hurt by them. His legal representative submitted that this response was consistent with the analysis of Ms Stewart who stated that he had survived such experiences by desensitising himself to torture. He also submitted that he was a successful and wealthy businessman in Turkey and Cyprus and in those circumstances had no reason to flee his country other than to escape persecution. There was no suggestion that the applicant or members of his family had ever had connections with any political organisations.
The Tribunal found that the report by Ms Stewart contained a history which generally accorded with the claims made by the applicant. It also provided some detail about his periods of residence in Istanbul and claims of mistreatment during that time and the physical mistreatment he claimed to have received for having satellite TV reception of Kurdish programs. The Tribunal stated:
‘The Tribunal notes that Ms Stewart’s report identifies that the applicant manifests symptoms of past torture and trauma. Clearly, his car accident was traumatic. The applicant was raised in a part of Turkey that witnessed human rights abuses before he left there in the mid-1980’s. It is possible that he was the victim of some mistreatment, although the Tribunal does not believe his account of events surrounding his first encounter with alleged torturers in the village where his father had arranged employment for him.”
The Tribunal accepted that the applicant had encountered some discrimination because he was Kurdish and Alevi when he was young and living on the mainland and that even if none of his particular claims were believed, he could still fall within the Refugees’ Convention as a member of a group (Alevis or Kurds) whose members are persecuted, that some Kurds in Turkey had been the victim of egregious human rights abuses and that there had been many innocent victims on the mainland. It accepted that some Kurds in Turkey had been victims of egregious human rights abuses and that the applicant’s mother passed away prior to 1975 after being assaulted by soldiers.
However the Tribunal found that the applicant had embellished some aspects of his claims and fabricated others. The Tribunal found that in light of his harassment at school it was not credible that the applicant would tell three strangers in his work place that people were tortured because were Kurdish and Alevi. It also found his willingness to return to the mainland and his home village on at least three occasions at odds with his claims that he had encountered persecution there and his alleged fear that he was still at risk on his return.
While it found it plausible that the applicant disliked his military service and believed he was treated as a slave, the Tribunal did not accept that he was subject to torture and beatings almost every day or detained and tortured for the last three months of his military service while questioned about opposition leaders in his village and then given a normal discharge. He had been away from his village for several years and his immediate return to his village was seen as strong evidence that he was not of any interest over participation in, or knowledge of, political opposition in his home town. The Tribunal was satisfied that he had greatly embellished his dislike of national service and concluded that he proceeded through it and was honourably discharged without being harmed for the reasons he described.
The Tribunal also concluded that, on the basis of independent evidence to which it referred in some detail, there were very different circumstances in Northern Cyprus for Kurds, and that the applicant’s claim that he was frequently beaten and tortured in Northern Cyprus because he was, among other things, Kurdish and Alevi, was greatly at odds with information from such other sources. The Tribunal considered the information submitted by the applicant in relation to mistreatment of a number of Kurds in Cyprus but concluded on the information before it that Kurds in general were not targeted for discrimination in Northern Cyprus. It did not accept that people in Cyprus were generally at risk because they were Kurdish and or Alevi. Nor, in the context of such information, did the Tribunal accept that the applicant had been treated by TRNC officials as he claimed. The applicant’s claims did not sit comfortably with independent information. They had been inconsistently made and were inconsistent with his wife’s evidence (particularly in relation to the number of beatings after the car accident). The Tribunal did not accept the applicant’s explanation that he failed to mention beatings as described by his wife because he did not perceive them to be torture. It noted that such incidents had been mentioned to the counsellor and that her report (which suggested that he had desensitised himself to torture and would smile while disclosing horrific experiences) did not support his claim that he did not speak of incidents of torture because they were merely a part of life. The Tribunal also took the view that the applicant’s claims were at odds with his business success. It was satisfied that his ethnicity and religion were unrelated to his business operations and his successes and failures.
Further, the Tribunal did not accept that the car accident was in any way related to the applicant’s ethnicity, religion or imputed political opinion although it accepted that he had suffered serious injuries and that the incident was extremely terrifying and traumatic. Nor did the Tribunal accept that he was subsequently interrogated and beaten or otherwise tortured for Convention reasons after the accident. It found that he remained in Northern Cyprus to recuperate without being harassed and then made arrangements to obtain a visa for Australia. The Tribunal also found that his claim that he had been prevented from approaching foreign embassies to obtain a visa was not plausible and was contrary to information from independent sources. It was satisfied that he did not leave Northern Cyprus because he did not encounter difficulties there. It noted that despite his claims he had been willing to return to Cyprus after each visit to the mainland.
The Tribunal accepted that the applicant was traumatised by events that happened before he left the mainland to live in Northern Cyprus and that he endured the added trauma of being the victim of a very serious road accident, but did not accept that he had been hounded and persecuted in Northern Cyprus for the reasons he had described. It was satisfied that he was not a target of persecution in Cyprus there as claimed. Further on the basis of the information before it the Tribunal concluded that Northern Cyprus effectively operates as a democratic ‘republic’ with an independent judiciary and a healthy respect for the rights of Kurds and Alevis from the mainland and that the applicant did not have a history of dissidence. It concluded that he was of no adverse interest to the Turkish or TNRC authorities when he left for Australia. It was not satisfied that he faced a real chance of persecution should he return to Northern Cyprus.
The applicant wife and children made no separate claims. Accordingly their applications for protection visas were also unsuccessful.

Relevant Law and this application

In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 the High Court held that a decision which involves a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Migration Act 1958 is reviewable.
The first ground relied on by the applicant was that the decision was made in excess of jurisdiction and/or that the Tribunal constructively failed to exercise its jurisdiction in that it did not act in good faith. Alternatively it was submitted that the decision of the Tribunal did not involve a bona fide attempt to exercise power pursuant to s.65 of the Migration Act. It was submitted that the Tribunal did not approach the applicant’s claims with a mind open to persuasion, that it approached its task with a predetermined view or a closed mind or a mind directed to deciding the claims adversely to the applicant and that this constituted actual bias or bad faith amounting to jurisdictional error. The error relied upon in this respect (other contentions were not pressed) was the statement by the Tribunal that the applicant’s credibility ‘was raised in the delegate’s decision’ and addressed in submissions of the applicant. It was submitted that this was simply wrong. It was said that the reference to ‘raised’ could only mean raised and addressed in an adverse sense and that there was no such consideration of credibility in the delegate’s decision. In essence the delegate had accepted the applicant’s claims but found that, despite his fears in Northern Cyprus, it was reasonable for him to relocate to the mainland. No submissions on credit had been required or made and the delegate did not conduct an interview with the applicant. It was contended that this false characterisation was the premise upon which the Tribunal’s adverse credibility finding of fabrication of the post-accident incidence of mistreatment was based, that it amounted to a pre-judgment of the applicant’s claims and that it coloured the approach which was taken to every aspect of his case.
The applicant relied on the decision of the Full Court of the Federal Court in SBBS v MIMIA (2002) 194 ALR 749 as to what constitutes good faith. His Counsel conceded that it was a difficult task to establish an absence of good faith solely from the decision record.
The short answer to the applicant’s claim is that even if his criticisms of the Tribunal’s reasoning were to be accepted, they would not establish that the Tribunal acted with prejudgment or a closed mind or that it did not make an honest or genuine attempt to exercise its power. It is true that the delegate’s decision does not expressly refer to the applicant’s credibility as such (although the delegate did reject some of his claims). However, even if the Tribunal’s suggestion that the applicant’s credibility was ‘raised’ in the delegate’s decision was in error, such an error does not of itself establish a lack of good faith. As was stated in SBBS, an allegation of bad faith involves personal fault on the part of the decision-maker. Mere error or irrationality does not of itself demonstrate lack of good faith. Nor does poor decision-making. The material before the Court does not go so far as to establish pre-judgment or capriciousness or recklessness in the sense referred to in SBBS. In MIMIA v SBAN [2002] FCAFC 431 Heerey and Keifel JJ indicated that it is the ultimate decision which must be shown to have been taken in bad faith, not merely that there were illogical factual findings or procedural blunders along the way, as such would usually not be sufficient to base a finding of bad faith.
“Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker’s duty.” (at [8])
Further, as their Honours indicated, in the context of review of decision by the Tribunal it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted so that the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the Tribunal. The fact that this might amount to suspicion or even strong suspicion does not of itself establish actual bias (at [11]). “The question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion” (Gleeson CJ and Gummow J in MIMA v Jia (2001) 205 CLR 507 at 531). Furthermore, as von Doussa J stated in SCAA v MIMIA [2002] FCA 668:
“It will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision if the decision is against the party complaining, the expression of adverse findings on credit and fact are inevitable part of the expression of the reasons.” (at [38])
Here all that is relied on is the alleged misstatement that the applicant’s credibility was in issue before the delegate. However, the Tribunal did not simply adopt the conclusion or reasoning of the delegate. It made findings on relevant issues and provided reasons based on the material before it. I am not satisfied that it has been established there is any lack of good faith, actual bias, absence of bona fides or jurisdictional error established in the manner contended.

The second contention of the applicant was that the Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in its treatment of the report provided by Arna Stewart, a psychologist and Counsellor/Advocate with the Victorian Foundation for the Survivors of Torture. The applicant contended that the Tribunal failed to take account of relevant material in that it ignored the expert opinion produced by the VFST ‘regarding the applicant’s psychological state and its underlying cause that he had been subjected to torture’. The respondent contended that the opinion was not as portrayed by the applicants, that it was not ignored by the Tribunal or that if it was ignored this was not a jurisdictional error, even apart from s.474 of the Act.

What was the opinion?

The first question then is what opinion was expressed in the report in question? It is necessary to consider the content of the report in some detail. The report was prepared for the purposes of the Tribunal hearing. It purported to address the applicant’s “current psychological functioning, his response to treatment and his diagnosis”. It stated that biographical material was provided in so far as relevant to the applicant’s mental state and that no attempt was made to provide a comprehensive personal history. It was prepared on the basis of seven counselling sessions each of 90 minutes conducted with the assistance of a Turkish speaking interpreter and also information that the psychologist obtained from interviews, the applicant’s statutory declaration dated 29 March 2001 submitted in connection with his application for a protection visa and also the protection visa decision record of the delegate of the respondent dated 5 March 2002. The report addressed the applicant’s presentation as well as relevant background.
Ms Stewart observed that the applicant presented as happy and relaxed “even whilst disclosing horrific experiences of persecution. He often smiled inappropriately as he demonstrated how his torturers hurt him. This presentation was not atypical for people who have endured years of persecution.” She stated that such presentation was masking severe distress. After recording, at some length, the applicant’s account of his experiences, Ms Stewart considered his psychological functioning. She suggested that his presentation (tending to smile through disclosures of his torture) was a mechanism which helped him to feel powerful and “belied his suffering”.
She then described symptoms that he described and that she observed and concluded “from the above symptomatology it is evident that [the applicant] is suffering from a Major Depressive Disorder, Recurrent (DSM – IV1994”’ and expressed the view that it was likely that he had experienced depressive episodes “since the loss of his mother and his first torture experience at the age of 14 years”. She stated that he also presented with symptoms of post-traumatic stress disorder as described.
In conclusion the report stated that the applicant survived the experiences he described “by desensitising himself to torture”, that the desensitisation was apparent in their sessions and that “despite this presentation, it was evident that [the applicant] is currently suffering from a Major Depressive Disorder” as well as from symptoms of post traumatic stress disorder.
The applicant submitted that the report was not only a cogent assessment of the consistency between the applicant’s experience and his presenting symptoms but that it also constituted an opinion that the applicant had experienced significant torture and as a consequence was suffering from a major depressive disorder. It was said that the basis on which the psychologist formed this opinion was that the applicant survived his experiences by desensitising himself to torture. It was submitted that being subject to a pattern of torture was not the same as being a victim of some mistreatment and that the report was evidence of a far more serious symptomatology and aetiology in Convention terms and that ‘trauma’ was in no sense the same thing as torture. It was said that the expert opinion went beyond accepting the truthfulness of the applicant (which the applicant accepted was not a matter for expert opinion) and was of such a kind and such a quality and to such a degree that it had to be dealt with as an expert opinion that the applicant had been the subject of a pattern of torture and not simply ignored in this respect by the Tribunal.
It is clear that the psychologist accepted the truthfulness of the applicant’s account of his experiences and expressed the opinion that his presentation was not atypical for people who had endured years of persecution. The diagnosis of Major Depressive Disorder was, according to the report, made on the basis of the symptomatology reported by the applicant. Symptoms described in the report included a severely depressed mood, a loss of interest in activities and people, difficulty sleeping, fatigue, low frustration tolerance, weight loss (not related to dieting and concentration difficulties and forgetfulness (which he attributed to beatings and lost consciousness but which Ms Stewart described as equally attributable to depression). The report also expressed the opinion that it was likely that the applicant had experienced depressive episodes since the loss of his mother and “his first torture experience at the age of 14 years”.
One difficulty with the applicant’s argument that this was an expert opinion that applicant had been tortured is that this is not what the report purported to address. Rather, it purported to address the applicant’s current psychological functioning, his response to treatment and his diagnosis. It provided biographical material only in so far as relevant to the applicant’s mental state and did not attempt to provide a comprehensive personal history. In other words it was not necessary for the purposes of the report for the psychologist to address causation as the symptomatology relied upon was sufficient for the diagnosis. It is also notable that due to the time constraints the report did not address what it would mean for the applicant to be forced to return to Turkey or Cyprus.
However, reading the report of Ms Stewart as a whole, I am satisfied that it does go beyond being simply an opinion that the applicant was suffering from certain disorders and that those disorders were consistent with the history he gave and the symptoms he described (cf Subramaniam v MIMA [2002] FCAFC 255 and Thirukkumar v MIMA [2002] FCAFC 268). Based on her observation of the applicant’s presentation throughout seven 90 minutes sessions Ms Stewart expressed the opinion that he had experienced torture which he survived by desensitising himself to torture. This is an expert report about the aetiology of the applicant’s presentation, an assessment that the applicant experienced torture arrived at by observation and expert assessment of his presentation not based merely on the consistency of his claims or Ms Stewart’s view as to his credibility or truthfulness (cf Thirukkumar at [32] and [38] per Cooper and Finkelstein JJ). It is implicit in the report that Ms Stewart is of the opinion that the applicant’s major depressive disorder is caused by experience of torture (despite the desensitisation apparent in presentation). This is consistent also with her assessment that it was likely that the applicant had experienced depressive episodes since the loss of his mother and his first torture experience. She does not, however, state that the depression was caused by experience of a pattern of torture and it is not a necessary inference from the report that Ms Stewart was of the opinion that the applicant’s diagnosed condition was caused by a pattern of torture or by all of the torture which he claimed to have experienced.

Did the Tribunal have regard to such expert opinion?

The applicant claimed that the Tribunal failed to consider or deal with the expert opinion as an expert opinion that the applicant “exhibits certain psychological or medical characteristics assessable only by a skilled person, which opinion is relevant and thus admissible because the existence of those characteristics supports the witness’ account” (per Drummond J at [18] in Thirukkumar v MIMIA [2002] FCAFC 268 and also per Cooper and Finkelstein JJ and also per Ryan J in Subramaniam v MIMA [2001] FCA 891 at [26] – [28] and Subramaniam v MIMIA [2002] FCAFC 255). It was submitted that the Tribunal was obliged to have regard to the expert opinion which dealt with matters properly the subject of such an opinion which were beyond the capacity of a lay person to assess, not on the basis of the rules of evidence – which do not apply to the Tribunal – but as part of the relevant considerations in the Craig (see Craig v South Australia (1995) 184 ALR 163) and Yusuf sense (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1). It was submitted that in concluding that the applicant may have been the victim of some mistreatment and in its approach to the claims of a continuing pattern of torture (including beatings) by persons associated with TRNC authorities during the applicant’s time in Northern Cyprus, the Tribunal had ignored the expert opinion.
It is the case that the opinion is not merely that there was a consistency between the applicant’s experiences and his presenting symptoms but also that there was a consistency between his presentation and the presentation of people who had endured years of persecution and that it can be inferred that the reporter was of the opinion that the applicant had experienced torture. However, as indicated the opinion does not go so far as to state or lead to a necessary inference that the reporter was of the opinion that the applicant’s condition was caused by a pattern of torture (or by the totality of the torture he claimed to have experienced).
I am not satisfied that the Tribunal ignored or failed to have regard to the opinion as contended. The Tribunal referred to the opinion in setting out the evidence in support of the applicant’s case, noting that the history recorded therein was generally in accordance with the claims made by the applicant in his claims for a protection visa. It also noted some further detail provided in the history as recorded in the report and that the incident involving the car was extremely terrifying and traumatic. The Tribunal reasons for decision also refer to the conclusion of the report that it was likely that the applicant had suffered symptoms of major depressive disorder ‘since the death of his mother and his first experience of torture when he was 14’ as well as that he suffered symptoms of post-traumatic stress disorder.
In rejecting the applicant’s claims to have been mistreated by TRNC officials the Tribunal referred to contrary independent evidence in relation to the situation in Northern Cyprus and to the inconsistency of the applicant’s claims with those of his wife. The Tribunal did not accept that, as claimed, the applicant failed to mention numerous beatings after the 1998 car accident because he did not perceive beatings to be torture. In this context the Tribunal had regard to the fact that he mentioned such incidents to Ms Stewart and suggested that:
“Her report does not, as submitted by the Applicant’s adviser, support the argument that he did not speak of incidents of torture because they are ‘merely a part of life’. Her report demonstrates that the applicant does, in fact recall and report such incidents but ‘survived these experiences by desensitising himself to torture … this desensitisation was apparent in our sessions, where he would smile while disclosing horrific experiences.”
Insofar as such reasoning may be seen as involving some illogicality this does not of itself demonstrate reviewable error in this case (see Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [7] and [20] per Gleeson CJ). The Tribunal noted that the report “identifies that the applicant manifests symptoms of past torture and trauma”. In consideration of the report the Tribunal acknowledged the presentation and symptomatology discussed in the report. This is also apparent from the subsequent acceptance that the car accident was traumatic and, more relevantly, that as the applicant was raised in a part of Turkey that witnessed serious human rights abuses before he left there in the mid-1980’s it was possible that he had been the victim of some mistreatment. It is evident that the Tribunal was of the view that the symptoms recorded in the report were consistent with aspects of his claimed history which the Tribunal accepted. This is apparent from a consideration of the findings the Tribunal made in respect of the applicant’s experiences, particularly his experiences in Turkey in relation to which the Tribunal accepted that the applicant was traumatised.
In this respect it is important that the Tribunal stated that it did not reject all of the applicant’s claims, although it had no doubt that he had embellished some aspects of his claims and fabricated others. Thus while the Tribunal accepted that the applicant’s mother died after being assaulted by soldiers it did not believe his account of events surrounding his first claimed encounter with torturers thereafter. Based on an acceptance of the applicant’s claims that he was a constant target of insult and assault at school on account of his ethnicity and religion and his history the Tribunal did not find it credible that he would tell three strangers who had entered his workplace that “because we are Kurdish and Alevi and left wing the soldiers are torturing our people and killing them as claimed”. Such a conclusion was open to the Tribunal on the material before it despite the opinion of the report that it was likely that the applicant had experienced depressive episodes since the death of his mother and his first experience of torture at age 14 and Ms Stewart’s acceptance of his truthfulness in this regard. The Tribunal had regard to the opinion in the report that the applicant had depression and that it was likely that he had suffered depressive episodes “since the death of his mother and his first experience of torture when he was 14”. It accepted that his mother died as claimed. The Tribunal acknowledged that the applicant had claimed to be tortured at the age of 14 and that Ms Stewart had suggested that his symptoms were consistent with his claims but it was not persuaded, for reasons which were open to it on the material before it, of the truthfulness of certain of the applicant’s claims. There was no error in the approach taken by the Tribunal in this regard (see Subramaniam v MIMA [2002] FCAFC 255 at [47] – [48]). It was for the Tribunal to determine what weight, if any it would place on the expert opinion as to the applicant’s truthfulness and otherwise (Thirukkumar v MIMIA [2002] FCAFC 268 at [6] and [38]).
It is the case that the counsellor had expressed the view that the depressive episodes experienced by the applicant could be traced back to the death of his mother and applicant’s first experience of torture at age 14. The Tribunal considered the opinion. It accounted for the opinion based on the incidents that it accepted as fact (or more accurately, did not regard as fabricated or embellished). It explained why it did not accept other aspects of the applicant’s claimed experience. It is not suggested that just because the counsellor accepted the truthfulness of those claims the Tribunal was bound to do the same. This was a matter for the Tribunal, not a matter within the province of expert opinion.
In its findings the Tribunal did not reject the applicant’s claims that after this time the police used to come around very often and ‘hit or torture him at home or take him to the police station and hit him there’. Further while the Tribunal considered and rejected the applicant’s claims as to torture during national service it made no specific findings and did not reject his claims of often having being beaten and tortured in Istanbul when the police and miliary found out he was Kurdish (or his claimed employment difficulties). It accepted that he encountered some ‘discrimination’ because he was Kurdish and Alevi when he was young and living on the mainland.
In the absence of rejection of all his claims of torture and mistreatment to this point (and in the context of a statement by the Tribunal that it did not reject all of his claims but considered that he had embellished some aspects of his claims and fabricated others) it is apparent that the Tribunal accepted some of the applicant’s claims (i.e. those it did not consider specifically to have been fabricated or embellished) in relation to events prior to his departure from Turkey. This is consistent with its conclusion that it accepted that “he was traumatised by events that happened before he left the mainland to live in Cyprus and that he endures the added trauma of being the victim of a very serious road accident”.
Further, in the context of the Tribunal reasons as a whole, the Tribunal’s acceptance that the applicant was the victim of ‘mistreatment’ and experienced ‘trauma’ in Turkey before the mid-1980’s (despite its rejection of the alleged first encounter and some subsequent instances of claimed torture) is consistent with and takes into account the reporter’s observations about the applicant’s desensitisation.
The Tribunal also addressed the report in its consideration of the conflicting evidence in relation to the applicant’s treatment after the car accident of March 1998. The Tribunal did not accept that the applicant had been mistreated as claimed because his claims did not sit comfortably with independent information and because they were inconsistently made and inconsistent with his wife’s evidence. In this respect the Tribunal noted that the applicant had told the Tribunal that he only encountered serious difficulty once after his car accident (consistent with his statutory declaration) but that his wife said that he was beaten on more than ten occasions. The Tribunal did not accept that the applicant failed to mention the beatings because he did not perceive them to be torture. It had regard to the fact that he mentioned incidents such as beatings to his counsellor and that her report did not support the argument that he did not speak of incidents of torture because they were merely a part of life. At that point the Tribunal continued:
“Her report demonstrates that the applicant does, in fact, recall and report such incidents but ‘survives these experiences by the desensitising himself to torture … this desensitisation was apparent in our sessions, where he would smile while disclosing horrific experiences.”
This basis for rejecting the applicant’s explanation for not mentioning the beatings lies in the fact that he had reported such sorts of experiences to the counsellor (not in the fact of desensitisation – which the report suggested affected the manner of disclosure of events not whether they were disclosed by the applicant). If the Tribunal were to be seen as accepting as fact the statement about desensitisation in the report as submitted by the applicant this would not necessarily be inconsistent with its rejection of the applicant’s claims in relation the period after the car accident in Cyprus as the Tribunal does accept some of the applicant’s claims, that the applicant may have been the victim of some prior mistreatment and that he was traumatised by events in Turkey as discussed above.
Despite the understandable claim of Counsel for the applicant that there is a distinction between ‘mistreatment’ and ‘torture’, the Tribunal’s use of the word mistreatment has to be seen in the context of its reference to ‘serious or egregious’ human rights abuses in Turkey prior to the mid-1980’s and its acceptance that the applicant was traumatised by events that happened before he left the mainland to live in Cyprus as well by as the subsequent serious motor vehicle accident. It cannot be said that the Tribunal accepted for one particular purpose the fact that the applicant had been tortured and then fell into error by failing to consider or deal with the expert opinion as an expert opinion in that respect. While not using the same language as the report the Tribunal not only accepted that it was possible that the applicant was the victim of some mistreatment in Turkey (consistent with the report identifying that the applicant manifested symptoms of past torture and mistreatment) but also that he was traumatised by events that happened before he left the mainland. It also accepted that he was, as the report suggested, traumatised by the 1998 road accident. It gave reasons for rejecting certain claims in relation to events in Turkey and the claims that he was hounded and persecuted in Cyprus. The Tribunal was of the view that circumstances in Northern Cyprus for Kurds were very different to those in Turkey. Hence acceptance that the applicant was tortured or mistreated in Turkey would not be inconsistent with its conclusions in relation to events in Cyprus.

Reading the Tribunal decision fairly and as whole I am satisfied that it had regard to the opinion of the counsellor, accepted that certain events consistent with the opinion expressed in the report had occurred while rejecting others for reasons it gave. It considered and accepted the report to the extent that the underlying facts relied on to found the opinion were proved to its satisfaction. As to other aspects of the report, it had regard to the opinion, weighed it against other evidence which it accepted and formed a judgment that it accepted some claims and not others (see Subramaniam).
Furthermore, I am not satisfied that it has been established that the Tribunal’s treatment of the expert opinion constitutes a jurisdictional error in failing to take into account relevant considerations or relevant material in the Craig and Yusuf sense (see Craig v South Australia (1995) 184 ALR 163 at [179] and MIMA v Yusuf (2001) 180 ALR 1 at [74] and [82] – [84]). There is a distinction between failing to refer to evidence which, if accepted, might have led the Tribunal to make a different finding of fact (see Yusuf at [87] – [97]) and failure to address a claim or contention which, if accepted, might establish that the applicant had a well-founded fear of persecution. The report was a piece of information that tended to make the applicant’s account of having suffered persecution more believable (see Drummond J in Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255 at [12] and Thirukkmar at [29] and [38]). In this case the Tribunal dealt with the integers or elements of the applicant’s claim. It cannot be said that the claimed opinion in the report (which is expressed by inference) is so strongly or clearly probative of the existence of a well-founded fear of persecution that it should be inferred that the Tribunal misunderstood the Convention expression ‘a well-founded fear of being persecuted’ in such a way that it exceeded or constructively failed to exercise its jurisdiction. The weight to be given to the opinion as was a matter for the Tribunal.
These conclusions mean that it is unnecessary to address the effect of s.474 as no error is established. Accordingly the application must be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Barnes FM

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