SZNCR v Minister for Immigration & Anor [2010] FMCA 45 (27 January 2010)

Federal Magistrates Court of Australia

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SZNCR v Minister for Immigration & Anor [2010] FMCA 45 (27 January 2010)

Last Updated: 5 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNCR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 45

MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of Sri Lanka claiming fear of persecution on ground of political opinion – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.425 – whether applicant was denied a fair opportunity to present his case – whether Tribunal made a jurisdictional error by failing to take into account the applicant’s impairment arising from his psychiatric and mental condition – credibility issues – corroborative evidence – whether Tribunal failed to take a relevant matter into account – jurisdictional error – proper, genuine and realistic consideration – whether a failure to give proper, genuine and realistic consideration is an error of law or jurisdictional error – certiorari and mandamus to issue.

Migration Act 1958 (Cth), ss.91X, 422B, 425, 476

SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59; [2003] HCA 30 SZMSJ v Minister for Immigration & Anor [2009] FCA 102 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZDRV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 926 followed SZIAY v Minister for Immigration & Anor [2006] FMCA 1680 SZIIF v Minister for Immigration and Citizenship [2008] FCA 913 SZIWY v Minister for Immigration & Anor [2007] FMCA 1641 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1985) 66 ALR 299 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Attorney-General (NSW) v Quin (1990) 170 CLR 1 SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; 96 ALD 510; [2007] HCA 35 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56; [2003] FCA 983 WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624; [2004] FCA 106 SZKGC v Minister for Immigration & Anor [2009] FMCA 1015 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; 223 ALR 171; 80 ALJR 367 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63

Applicant:

SZNCR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 5 of 2009

Judgment of:

Scarlett FM

Hearing dates:

21, 22 & 28 October 2009

Date of Last Submission:

28 October 2009

Delivered at:

Sydney

Delivered on:

27 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr Young

Solicitors for the Applicant:

Bernard McHardy McLaughlin & Riordan

Counsel for the Respondents:

Mr Mitchell

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) An order in the nature of certiorari is to issue to quash the decision of the second respondent made on 3 December 2008 to affirm the decision not to grant the applicant a Protection (Class XA) visa.
(2) An order in the nature of mandamus is to issue remitting the application of the applicant to the second respondent for review of the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa to the second respondent for determination according to law.
(3) The application is adjourned to 12 March 2010 at 10:15am for costs hearing.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 5 of 2009

SZNCR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The critical issue in this case is whether the applicant was so affected by a psychiatric disorder that he was unable to give proper evidence to the Refugee Review Tribunal at two hearings.
2. The applicant is a citizen of Sri Lanka who is seeking review of a decision of the Refugee Review Tribunal made on 3rd December 2008, affirming a decision not to grant him a Protection (Class XA) Visa. He seeks orders in the nature of certiorari and mandamus, quashing the Tribunal decision and remitting his application for review of the delegate’s decision to the Tribunal for determination according to law.
3. The grounds upon which he relies are set out in a further amended application that was filed in Court on 15th April 2009. The grounds that are pressed are :
   • 6. The RRT made jurisdictional error in dismissing the weight to be afforded to a medical certificate of April 2008 without reference to its corroborating a further medical certificate in evidence of the assault on the applicant dated 6 August 2007.
   • 9. The Second Respondent made jurisdictional error by so misunderstanding or misconstruing the claims and evidence of the applicant as to the nature of the information given by the applicant to the police as to constitute failure to consider the claims and evidence.
   • 10. The Second Respondent made jurisdictional error by refusing to place weight on a medical certificate in April 2008 relating to injuries suffered by the applicant in August 2007 by reason only that the certificate was consistent with the applicant’s claims in relation to the incident in August 2007 leading to those injuries.
   • 11. The Second Respondent made jurisdictional error by confining consideration of whether in the future there was a real chance that the applicant would be harmed by reason of the Convention ground of political opinion to the issues of the political opinion of the applicant personally, thereby excluding the political motivation of others including those wishing to preserve their own influence or domain.
   • 12. The Second Respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to the applicant’s claims in that the Second Respondent failed to consider the hypothesis that a Minister of Government involved in the drug trade and a “person of notoriety” might harm relatively minor activists seeking to mobilise the community against drugs and/or to provide useful information to the police to prosecute drug crimes.
   • 13. The second respondent made a jurisdictional error by reason that the applicant was denied a fair opportunity to present his case because of impairment arising from the applicant’s psychiatric and mental condition.
   • 14. The second respondent made jurisdictional error by acting in breach of the second respondent’s obligations under s. 425(1) of the Migration Act.
   • 15. The second respondent made jurisdictional error by reason of its assessment of the applicant’s evidence given at the hearing as if he were a person without impairment.

Background

4. The applicant arrived in Australia on 15th February 2008. He applied for a Protection (Class XA) visa on 27th March 2008.
5. In a statutory declaration submitted with his application, the applicant claimed that he sought protection on humanitarian grounds because he feared for his life and his country was unable to provide for his safety. He claimed to have supported a political party in Sri Lanka originally called the United National Party, or UNP, but later called the United National Front (UNF). He claimed to have come into contact with a politician called Mervyn Silva, who the applicant said was corrupt and backed by underworld gangs and illegal business operators.
6. The applicant claimed that Mr Silva threatened him and told him not to work with another politician in the same party, a Mr Premadasa, who was one of Mr Silva’s political rivals. The applicant continued to work with Mr Premadasa and not with Mr Silva. One night he was putting up political posters when he was beaten up by a mob of people loyal to Mr Silva. He was admitted to hospital as a result of his injuries.
7. The applicant said that Mr Silva switched his allegiance to the party that had won government at the election and was appointed a Minister. The applicant claimed that Mr Silva again threatened him in January 2000.
8. The applicant set out in his statutory declaration that in February 2007 he became involved in a task force designed to stop the spread of illegal drugs. He claimed that he became aware in August of that year that Mr Silva was one of the people behind the illegal drug trade. The applicant and a colleague, a Mr Dayarathna, informed the police about the shipment of a large quantity of heroin. The police raided the premises where the heroin was stored and seized it. A short while later Mr Dayarathna was murdered.
9. The day after Mr Dayarathna’s body was found, the applicant claims that Mr Silva telephoned him and threatened him, saying:
   • You don’t know what you have done. You stepped into fire. You mother f...r did you trying to revenge on me...do you know how much I lose because of you and your friend, F you, you are a dead man. I won’t leave you alone. Did you see what happened to your friend? This is not just a threat. You are finished ...will see who can save you.[1]
10. The applicant set out in his statutory declaration that he went to the police to make a complaint about the threats made by Mr Silva. The applicant asked the police to provide security for him, but they refused, saying that they did not have enough evidence.
11. The next day, four police officers came to the applicant’s home and asked him to accompany them. He claimed that they tied and blindfolded him and took him to another police station that he did not recognise. The police accused him of being responsible for the murder of Mr Dayarathna. They kicked and beat him for about an hour. Later, they made him sign a statement admitting that he had falsely accused Mr Silva of involvement in the murder. They then drove him to a remote place and pushed him out of the vehicle. Eventually he made his way home. He needed medical treatment for a week.
12. The applicant claimed that he decided to quit politics as a result of this incident.
13. Later that same month the applicant claimed that he was walking home from work one night when he was attacked by some men who tried to kill him with a sword. He ran away but suffered cuts to his hands and legs. He did not go home but went into hiding. He claimed that thugs went to his home looking for him. Later the police came looking for him, claiming that he was involved in Mr Dayarathna’s murder. The applicant decided to leave Sri Lanka.
14. The applicant supplied two medical certificates[2] and some items from the Internet about Mervyn Silva’s son[3] and about Mr Silva.[4]
15. On 20th June 2008 a delegate of the Minister for Immigration and Citizenship refused the application for a protection visa. In the Protection (Class XA) Visa Decision Record, the delegate found that the applicant’s fear of persecution was not well founded.
16. The delegate found that the applicant was a supporter of the UNP who undertook low level tasks for the party. The delegate stated:
    • While I accept that what the applicant may have experienced frightened for him[5], and while I recognise that the threats, stone throwing, abduction, detention, harassment, assault and assassination attempts are very serious, they do not appear as harm amounting to persecution on account of his political opinion but rather acts criminal in nature perpetrated by certain individuals. I find that the harm the applicant fears arises out of his particular circumstances and is essentially a harm directed at him as an individual rather than politically motivated act.[6]
17. The delegate also found that:
    1. It was highly improbable that the applicant’s profile or activities would be such as to prompt the devising of an elaborate network of thugs and attempted murder by Mr Silva; and
    2. As ethnic Sinhalese (like the applicant) are able to move freely within the country it would not be unreasonable for the applicant to relocate elsewhere within Sri Lanka.

Application for Review by the Refugee Review Tribunal

18. After his application for a protection visa was refused, the applicant then applied to the Refugee Review Tribunal on 15th July 2008 for review of the delegate’s decision. With his application for review the applicant provided a four-page statement, setting out his claims in some detail.[7]
19. The Tribunal wrote to the applicant on 18th August 2008, inviting him to attend a hearing on 23rd September 2008. The applicant replied by sending in a completed Response to Hearing Invitation form on 3rd September 2008, advising that he wished to attend the hearing and would require the assistance of an interpreter in the Sinhala dialect.[8]
20. The applicant attended the hearing on 23rd September and gave evidence with the assistance of a Sinhalese interpreter.[9] He produced his Sri Lankan passport to the Tribunal.
21. At the hearing, the Tribunal expressed its doubts to the applicant about some aspects of his claim concerning the alleged events in August 2007:
    • The Tribunal put to the applicant that the Tribunal accepted that he may have been active with UNP and that the Tribunal accepted that Mr Silva by all accounts is a notorious person. However the Tribunal was having difficulty accepting the claimed events of August 2007 and in the absence of these events did not accept that the applicant would face harm on his return to Sri Lanka. The applicant stated that since he has come to Australia Mr Silva has twice visited his home to ask about his whereabouts.
    • The Tribunal agreed to allow two weeks for the applicant to make further submissions.[10]
22. The applicant wrote to the Tribunal on 6th October 2008, complaining about the quality of the interpreting and asking for another hearing with a different interpreter. He said:
    • I thought I answered your questions promptly according to my understanding but it is far less to be true as I found that the interpreter has not interpreted English to Sinhalese and vice versa properly that may lead to misunderstanding you of my answers as well as I also did not receive the proper questions through interpreter as you were raised so the answer given by me is according what I understand through the interpreter.
    • I have come across this finding through the friend of mine who had given an attention to my request for listen to the CD’s of my hearing and then he revealed to me that the interpreter has misinterpreted and interpreted partially of my answers to you in most occasions throughout the hearing.[11]
23. The Tribunal agreed to this request, quite properly, in my view, and invited the applicant to attend a further hearing on 13th November 2008.[12]
24. The applicant attended the hearing on 13th November and gave evidence with the assistance of a Sinhalese interpreter, who was not the same interpreter as on the previous occasion, according to the Tribunal Hearing Record.[13]
25. The Tribunal made its decision on 3rd December 2008 and notified the applicant by post the following day. The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa.

The Refugee Review Tribunal Decision

26. In its Decision Record the Tribunal set out the applicant’s claims and evidence from the following sources:
    1. The application for a protection visa in the Department’s file;
    2. The applicant’s evidence at the hearing on 23rd September 2008;
    100. The applicant’s evidence at the hearing on 13th November 2008; and
    4. Country information about Mr Silva and Mr Sajith Premadasa, his political rival.
27. The Tribunal found that the applicant was a citizen of Sri Lanka who had arrived in Australia on 15th February 2008, based on the applicant’s Sri Lankan passport.
28. However, the Tribunal expressed considerable doubts about the applicant’s credibility. The Tribunal found that the applicant was not credible on several key aspects of his claim. It made it clear, however, that it had addressed the applicant’s stated concerns about the quality of the interpreting at the first hearing, saying:
    • In reaching an adverse credibility finding the Tribunal is mindful of the fact that the applicant raised concerns about the quality of the interpreting at the first hearing. The Tribunal notes that the applicant did not at any point during the course of the first hearing indicate that he had concerns about the interpreting but only raised these concerns after the hearing. Nor did the applicant itemise the areas or ways in which he believes that the interpreting was inadequate. In any event the Tribunal held a second hearing with a different interpreter and notes that the applicant’s oral evidence at the second hearing was substantially the same as that provided to the Tribunal in the first hearing. Therefore, the Tribunal is satisfied that in making its finding that the applicant was not a credible witness, this finding is not otherwise accountable for by reason of interpretation of the applicant’s oral evidence and the questions put to him by the Tribunal at the first hearing.[14]
29. That said, the Tribunal did not accept that the applicant provided information to the police about a drug run involving Mr Silva which led to the death of the applicant’s friend, or that he was threatened, detained and tortured. The Tribunal described the applicant’s evidence on those issues as “vague and unpersuasive”, “vague and ambivalent”, “incongruent”, “unconvincing” and “improbable”.[15]
30. The Tribunal referred to the medical certificate from Sri Lanka dated April 2008 referring to the fact that he was treated for cuts, bruises and abrasions on 6th August 2007 and had given a history of a violent police assault. It did not accept this as independent evidence of the applicant’s claim to have been tortured by police.
31. The Tribunal did not accept that:
    1. The applicant had provided information to the police about a drug deal;
    2. The applicant’s friend was subsequently murdered;
    100. The applicant was threatened and tortured by corrupt police;
    4. Further threats were made on the applicant’s life; or
    5. That he was known to or of interest to Mr Silva by reason of his political activities.
32. Accordingly, it did not accept that Mr Silva considered the applicant as a political foe, or that he organised people to harm him in the past or would seek to harm him in the future if he were to return to Sri Lanka.
33. The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason and affirmed the decision not to grant him a Protection (Class XA) visa.

Application for Judicial Review

34. One very important issue on which the applicant relied concerned was his claim that he suffered from an impairment at the hearing due to his mental state. To this end he relied on a medical report by Dr Jonathan Phillips, a consultant psychiatrist, dated 7th August 2009. This report was annexed to an affidavit sworn by Dr Phillips on 16th September 2009.
35. Dr Phillips gave oral evidence on the third day of the hearing, 28th October 2009.
36. It was Dr Phillips’ evidence that he examined the applicant in a long interview on 14th July 2009. He described the applicant’s account of becoming depressed after arriving in Australia, which he believed to be an extension of pre-existing feelings from when he was still in Sri Lanka. The applicant described the following symptoms:
    • He missed his wife and sons and worries about the safety of other family members
    • He has lost concentration and has suffered repeated burns in his job as chef
    • He sometimes becomes confused
    • His use of alcohol and cigarettes has increased
    • He feels a sense of entrapment
    • He is troubled by a sense of guilt that he is separated from his sons
    • He is often nihilistic in his thinking and has episodic suicidal thoughts
    • He becomes fearful, particularly if he sees police
    • He sleeps poorly and wakes repeatedly during the night
    • He is anxious when away from home
    • He is emotionally labile and rapidly becomes upset
    • He prefers to be on his own
    • He lacks appetite and has lost weight
    • He feels a lack of strength.
37. Dr Phillips noted:
    • The applicant believes that his ongoing mental state, particularly difficulties with concentration, have interfered with the process of litigation. Specifically, he believes he has difficulties answering questions put to him because of his mental state. He noted also his mental state. He noted also that he has a fear of court officials, and a fear of the ritual of the court.[16]
38. Dr Phillips also recorded that the applicant had been attending a psychological counsellor but had not been prescribed any medication. He had also attended a general practitioner for advice about giving up drinking and smoking. Again, he had not been prescribed any medication.
39. In his report, Dr Phillips noted the following points about the applicant:
    • He was at least moderately depressed, moderately anxious.
    • His affect was initially distant but became warmer.
    • His thoughts were focussed on matters linked with residency, somewhat to the exclusion of other matters, and his thought processes were generally slowed and inefficient.
    • He was not paranoid, nor was he suffering delusions, hallucinations or other symptoms of a psychotic disorder.
    • His cognition was adequate for the interview.
40. Dr Phillips stated that he conducted two psychometric tests on the applicant, a Beck Depression Inventory II and a Beck Anxiety Inventory. On the Beck Depression Inventory, Dr Phillips said of the applicant:
    • He had a total score of 55 on the instrument, this placing him in the upper end of the range for severe depression. He had moderate/high scores in the domains of sadness, pessimism, past failure, los of pleasure, punishment feelings, self-dislike, self-critical thinking, suicidal thoughts/wishes, tearfulness, agitation, loss of interest, indecisiveness, worthlessness, loss of energy, altered sleeping patterns, irritability, altered appetite, concentration difficulties, tiredness/fatigue, loss of interest in sex.[17]
41. The applicant’s score on the Beck Anxiety Inventory was 57, which, Dr Phillips said, placed hi at the higher end of the range for potential concern:
    • He had moderate/high scores in the domains of numbing/tingling, feeling hot, unsteadiness of legs, inability to relax, fears of the worst happening, being dizzy/light-headed, general unsteadiness, being terrified/afraid, general nervousness, feelings of choking, hand tremors, being shaky/unsteady, fears of losing control, difficulties breathing, being scared, fears of dying, indigestion, being faint/light-headed, facial flushing and hot and cold sweats.[18]
42. In his report, Dr Phillips based his opinion on the assumptions that:
    1. The applicant had given a true and correct history of the incidents in Sri Lanka; and
    2. The applicant was correct in his belief that he would be killed if he were to return.
43. Dr Phillips described two matters of psychological importance in the applicant’s case:
    1. The extent of his current ongoing psychopathology; and
    2. The extent to which his psychopathology interfered with his presentation and evidence at the Refugee Review Tribunal.
44. He expressed the opinion that the applicant became increasingly troubled by depression spectrum and anxiety spectrum symptoms whilst he was still in Sri Lanka, but stated that he did not have sufficient clinical evidence to confirm that his symptoms reached threshold at that time for the presence of a diagnosable and recognisable psychiatric disorder. However, Dr Phillips believed that the incidents described by the applicant in Sri Lanka caused him to begin a process of psychological decompensation which continued in Australia. He did not believe that the applicant could be diagnosed currently with post traumatic stress disorder.
45. Dr Phillips diagnosed the applicant as suffering from a major depressive disorder, that has arisen “in the context of political stress and frank torture in his homeland, and separation form his wife and sons”:
    • The disorder is now made worse by his uncertainty about refugee status and whether he will be awarded permanent residency in Australia.[19]
46. Dr Phillips expressed the view that the applicant’s psychopathology and his major depressive disorder handicapped him, particularly in being able to cope adequately with the legal process. He has become sensitised to and frightened of contact with police and other persons holding powerful positions. As a result:
    • The applicant will view tribunals and courts as dominated by authority figures likely to harm him and this will impede him in giving proper evidence, and impede him at times of cross-examination or interrogation.[20]
47. In answer to questions 3 and 4 from the applicant’s solicitors in their letter to Dr Phillips of 7th May 2009:
    • 3. Your opinion as to our client’s relevant condition and diagnosis as at 23 September 2008 and 13 November 2008 (the dates of the two Tribunal hearings).
    • 4. Is it your opinion on the basis of your examination and assessment of (the applicant)[21] that he would have been effected (sic) by any diagnosed condition when he was before the Refugee Review Tribunal on 23 September 2008 and 13 November 2008,[22]

he replied:

3. I cannot answer this question with absolute precision. I can state, however, that (the applicant) developed broad and complex and complex psychiatric symptoms after arriving in Australia. On the balance of probabilities, the applicant’s major depressive disorder was already well established by the dates of the two hearings of the Refugee Review Tribunal (23 September 2008, 13 November 2008).
4. As stated above, and on the balance of probabilities, (the applicant) would have been significantly affected across various domains of his life by a major depressive disorder prior to and at the time of the two hearings of the Refugee Review Tribunal.[23]

48. Dr Phillips expressed the view that the applicant was affected in three ways at the time of the two Tribunal hearings:
    1. His traumatically induced fear of authority figures, including persons within the Tribunal;
    2. His cognitive impairment associated with major depressive disorder, interfering with his capacity to think rationally, to marshal information, to give evidence and to face cross-examination and/or interrogation in the legal arena; and
    3. His ongoing problems with communication in Australian English.
49. Dr Phillips gave oral evidence. In answer to questions from the Bench, he expanded on his view that the applicant was not suffering from post traumatic stress disorder in particular and that, in his view, post traumatic stress disorder was over-diagnosed generally. He pointed out that it is an easy diagnosis to feign. His view was that there must be great caution when making a diagnosis of PTSD because it is a low-prevalence disorder. He said that the literature suggests that it is a reasonably rare diagnosis compared with depressive disorders or anxiety disorders.[24]
50. Dr Phillips was cross-examined at some length by Mr Mitchell of counsel, who appeared for the Minister. He referred to his methods of taking an oral history from a patient and commented on his caution about accepting what is written in a patient’s statutory declaration. He said that such documents are “an interpretation of what is said as written by a solicitor and done with the best ability and the best skills that are available” and a statutory declaration, taken from a man with limited skills in a language “almost always reads much better than the words of the person himself”.[25]
51. Dr Phillips was an impressive expert witness who was not shaken in cross-examination.
52. The Minister did not adduce any evidence.

The Applicant’s Submissions

53. Mr Young of counsel, who appeared for the applicant dealt first of all with Grounds 6 and 10 of the further amended application, which concerned the Tribunal’s decision not to place weight on the medical certificate dated 27th April 2008 containing the notation that the applicant had mentioned that he was the victim of a violent police assault. The Tribunal placed no weight on the document as independent evidence of the applicant’s claim to have been tortured by police as the certificate repeated the applicant’s claim.[26]
54. Mr Young submitted that the Tribunal placed no weight on the document because it repeated the applicant’s claim, in other words, that it corroborated the claim. He submitted that a decision maker must consider the totality of the evidence that bears on the facts to be found, which requires the decision maker to consider any direct evidence together with any corroborative evidence (SZDGC v Minister for Immigration and Citizenship[27]per Finkelstein J at [23]-[27]).
55. Where a party’s credibility may be so weakened that the tribunal of fact may treat what is offered as corroborative evidence as of no weight because “the well has been poisoned beyond redemption” (Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002[28] per McHugh and Gummow JJ at [59]). Those occasions, he submitted, would be rare (see also SZMSJ v Minister for Immigration & Anor[29] per Driver FM; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs[30] at [39]-[40] and [52]).
56. Mr Young submitted that the only reason that the Tribunal gave for not giving any weight to the April 2008 certificate was that it supported the applicant’s claims and did not consider the other certificate, dated 6th August 2007, at all.
57. As to Ground 9, a claim that the Tribunal misunderstood or misconstrued the evidence about the tip-off to the police by the applicant and his friend, Mr Young submitted that there was nothing about the applicant’s evidence that justified the statement by the Tribunal that:
    • When pressed as to the content of this information the applicant was vague and ambivalent in his responses, stating that he did not know the source and suggesting that they only informed the police that some drugs would arrive from Colombo in a day or so.[31]
58. Mr Young submitted that the applicant had stated in evidence before the Tribunal on 13th November 2008 that he had received some specific information from a friend who was a businessman about a person named Kuduajith who was to bring drugs from Colombo to areas like Matara in the south of the country.[32] He referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2)[33] where the Full Court of the Federal court noted at [63] that if the Tribunal made an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and made its conclusion in whole or in part upon the claim so misunderstood or misconstrued, the error was tantamount to a failure to consider the clam and can constitute jurisdictional error.
59. It was submitted that the naming of names by the applicant and his group was a matter of great significance and the Tribunal failed to consider the true nature of the information which the applicant claimed to have passed on to the police. This was a failure to carry out the Tribunal’s jurisdictional task.
60. As to Ground 11, Mr Young referred to the Tribunal’s statement that it did not accept that the applicant was seen to be a political foe by Mr Silva and that he would not therefore seek to harm him by reason of his political opinion. It was submitted that in relation to a claim of persecution on the grounds of political opinion, it does not matter whether the political opinion is that held by the persecuted, the persecutor, or both (SZDRV v Minister for Immigration and Multicultural and Indigenous Affairs[34] per Lindgren J at [9]). The critical issue was not whether Mr Silva would harm the applicant by reason of the applicant’s political opinion, but whether he would seek to do so because of his own political opinion. By failing to consider this matter, the Tribunal made jurisdictional error.
61. As to Ground 12, a failure to give proper, genuine and realistic consideration to the applicant’s claim that a person involved in the drug trade and a person of the notoriety of Mr Silva might seek to harm someone such as the applicant, Mr Young conceded that merits review is a matter for the Tribunal and want of logic does not of itself suffice to constitute error of law. However, flawed reasoning might also support a conclusion that the Tribunal had approached its task without making a genuine attempt to consider the evidence favouring the applicant (see SZIAY V Minister for Immigration & Anor[35] per Smith FM at [7]; SZIIF v Minister for Immigration and Citizenship[36] per Weinberg J, who accepted that if a Tribunal does not give proper, genuine and realistic consideration to the applicant’s case, the applicant will not be afforded the hearing to which he or she is entitled by law.[37]
62. Mr Young submitted that the reasoning of the Tribunal that the applicant and his local anti-drug campaigns could not be seen as a political threat by Mr Silva is a sweeping assumption unsupported by any evidence. The Tribunal seemed to have almost totally ignored the whole aspect of the drug trafficking allegedly being run by Mr Silva and to have treated the case as merely one where the applicant was making allegations based purely upon political opinion. To fail to have regard to the whole subject matter of the applicant’s claims to fear persecution in Sri Lanka is to fail to discharge the Tribunal’s statutory function.
63. As to Grounds 13, 14 and 15, Mr young submitted that, based on the expert report of Dr Phillips, at the time the applicant gave evidence before the Tribunal on 23rd September and 13th November 2008, he was suffering from a major depressive disorder which interfered with his capacity to think rationally, to marshal information and to face questioning, these matters being to the applicant’s considerable disadvantage.
64. He referred to the decision of Smith FM in SZIWY v Minister for Immigration & Anor[38], where his honour found that an applicant’s mental capacities were probably materially impaired at the hearing, so that the Tribunal incorrectly assumed the contrary when assessing the applicant’s evidence. This resulted in clear unfairness in how the Tribunal addressed the applicant’s refugee claims.
65. His Honour, referred to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[39], where it was held that a breach of s. 425 of the Migration Act can occur as a result of circumstances unknown to the Refugee Review Tribunal and beyond its control.
66. Mr Young submitted that because of the applicant’s impaired circumstances, he was denied an opportunity to present his case and thus a breach of s. 425 occurred.

The First Respondent’s Submissions

67. Mr Mitchell of counsel, who appeared for the first respondent Minister for Immigration and Citizenship, submitted in respect of the applicant’s Grounds 6 and 10 that the Tribunal plainly considered the medical certificate submitted by the applicant, but that certificate did not independently corroborate the applicant’s claims because it was evidence only of an injury due to a physical assault and contained the applicant’s allegation that he had been the victim of a “violent police assault”. In circumstances where the Tribunal did not find the applicant’s testimony to be credible it was not surprising that the Tribunal gave no weight to the medical certificate, because this was a matter of fact for the Tribunal (Minister for Aboriginal Affairs v Peko-Wallsend[40] at 309; Minister for Immigration and Ethnic Affairs v Wu Shan Liang[41] at 281-2, 291-2; Attorney-General (NSW) v Quin[42] at 35-37). The Tribunal did not have to give independent reasons as to why it gave the medical certificate because its appraisal of the applicant’s testimony subsumed the entirety of his claims (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[43]).
68. As to the applicant’s Ground 9, Mr Mitchell submitted that the Tribunal had accurately summarised the applicant’s activities as part of the drug task force, at paragraphs 22, 24, and 34-39.[44] That summary was based on the applicant’s testimony as to these matters as well as his written claims.
69. In respect to the applicant’s Ground 11, Mr Mitchell submitted that the Tribunal clearly considered Mr Silva’s motivation.[45]
70. In respect to Ground 12, the claim that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims, Mr Mitchell that the Tribunal was not obliged to speculate on claims that were not made and did not squarely arise on the material before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[46]; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs[47] at [19]). The Tribunal considered the applicant’s claims as they were put and did not accept the applicant as credible. That finding, he submitted, subsumed any hypothetical claim that may have arisen based on the applicant’s claims.
71. Mr Mitchell then considered the applicants Grounds 13, 14 and 15, relating to his claim that he suffered from a psychiatric and mental condition and that the Tribunal’s decision was vitiated by that impairment. The allegation, he submitted, was made for the first time on 8th April 2009, four months after the Tribunal’s decision was made. The allegation was not made to the Tribunal and the Tribunal had no notice of it.
72. It was submitted that the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[48] should be distinguished from the present case because:
    1. The facts in SCAR were exceptional, because in that case there was cogent and contemporaneous evidence of a treating psychologist and nursing staff that the applicant was not in a fit state for hearing and had been given medicated that affected his disposition and demeanour;
    2. The evidence in SCAR compelled the inference that the applicant’s condition affected his ability to give evidence and present arguments relating to his case. In this case there is no contemporaneous evidence that compels the inference that the applicant was denied an opportunity to give evidence and present arguments;
    3. In SCAR common law procedural fairness applied and s. 422B(1) had no application (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[49]). Since the introduction of s. 422B, where the Court is asked to infer that a decision is vitiated by circumstances of which the Tribunal has no notice and which do not become apparent until months after the Tribunal hearing, the applicant must demonstrate how those circumstances stultified the operation of the legislative scheme to afford the applicant an opportunity to give evidence and present arguments relating to the issues arising to the decision under review (SZFDE v Minister for Immigration and Citizenship[50]at [49] and [51]). The mere coincidence between the existence of a psychiatric illness suffered by an applicant and the applicant’s appearance at a Tribunal hearing cannot, of itself, be determinative of a breach of s. 425(1). Fairness does not ordinarily oblige a Tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which an applicant may be at a disadvantage (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[51] at [19] and [45]);
    4. SCAR has not met with universal approval (NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs[52]) as the proposition contained within it is inconsistent with the proposition that the assessment of an applicant’s mental state is a factual matter for the Tribunal and is not susceptible to judicial review (WAJR v Minister for Immigration and Multicultural and Indigenous Affairs[53]). In those circumstances, SCAR should be seen as a case that only applies in the most exceptional cases and it is not authority for the broad proposition that an ex post facto psychiatric assessment, conducted many moths after the Tribunal hearing, can vitiate an earlier Tribunal decision;
    5. It was submitted that the authorities relied on by the Full Court in SCAR do not sit well with a broader application to unknown psychological conditions of applicants and the effect that they can have on a Tribunal’s obligations.
73. Mr Mitchell further submitted in respect of Ground 13 that the common law natural justice hearing rule has been abrogated by s 422B, which constitutes the provisions of Division 4 of Part 7 of the Act as a procedural code. Procedural fairness at common law is not available outside the strictures of the procedural code constituted by Division 4 of Part 7.
74. As to Ground 15, Mr Mitchell submitted that the Tribunal was plainly not on notice of the applicant’s mental and psychiatric condition at any time during the course of its review. There was no obligation on the Tribunal to make inquiries in that respect and there is no basis for implying an obligation that the Tribunal consider factual matters that were not otherwise before it.
75. Thus, it was submitted that the application should be dismissed with costs.

Conclusions

76. The applicant relies on eight grounds of review, being Grounds 6, 9, 10, 11, 12, 13, 14 and 15.

Grounds 6 and 10

77. Grounds 6 and 10 can be dealt with together. Ground 6 claims:
    • The RRT made jurisdictional error in dismissing the weight to be afforded to a medical certificate of April 2008 without reference to its corroborating a further medical certificate in evidence of the assault on the applicant dated 6 August 2007.
78. Ground 10 claims:
    • The Second Respondent made jurisdictional error by refusing to place weight on a medical certificate in April 2008 relating to injuries suffered by the applicant in August 2007 by reason only that the certificate was consistent with the applicant’s claims in relation to the incident in August 2007 leading to those injuries.
79. The applicant relied on two medical certificates, both from Dr U.A.C.S. Pemadasa, a medical practitioner in Sri Lanka. The earlier of the two is handwritten and dated 6th Aug 2007. It is addressed to “The Manager, Hotel Eva Lanka, Tangalle” and says:
    • This is to certify that (the applicant)[54] was treated for a trauma (due to an assault) and certify 14 days leave from 06/08/2007 to 20/08/2007.
    • Thank you
    • (signature) True copy
    • Dr U.A.C.S. Pemadasa [55]
80. The later certificate is typed and dated 27th of April 2008. It says:
    • To whom it may concern
    • This to certify that I have medically treated and healed from 06/08/2007 to 20/08/2007 for the cuts, bruises and abrasions of (the applicant)[56] due to physical assault.
    • He mentioned that he was a victim of violent police assault.
    • Please feel free to contact me either 0714257039 or 041/2251099
    • This letter is been issued at his request.
    • Your sincerely
    • (signature)
    • Dr. U.A.C.S. Pemadasa[57]
81. The Tribunal mentions only one of the medical certificates, the later one. At paragraph 26 of the Decision Record it says:
    • He also provided a Medical Certificate in respect of himself indicating that the applicant received medical treatment in early August 2007. The medical report states that, “He mentioned that he was a victim of violent police assault.”[58]
82. The Tribunal refers to the same certificate in the Findings and Reasons at paragraph 93:
    • The Tribunal notes that the applicant has provided a brief medical certificate from Sri Lanka dated April 2008 indicating that the applicant was seen for cuts, bruises and abrasions on 6 august 2007. The certificate includes the notation that the applicant “mentioned that he was a victim of violent police assault.” Given that the certificate repeats the applicant’s claim the Tribunal does not place weight on this document as independent evidence of the applicant’s claim that he was tortured by police.[59]
83. Whilst it may be argued that the Tribunal had already formed such a negative view of the applicant’s credibility that corroborative documentary evidence would not resurrect the situation, the well having already been “poisoned beyond redemption” (S20/2002), it is my view that the earlier medical certificate, the one dated 6th August 2007, should not have been so lightly dismissed. Indeed, the fact that the Tribunal does not mention the document at all and concentrates entirely on the later certificate strongly suggests that the earlier certificate has been overlooked.
84. Whilst it may be argued that the later certificate, dated 27th April 2008 and submitted under cover of a letter dated 29/04/2008, appears to have been prepared with a view to its being used in the process of application for a protection visa, the same cannot be said about the earlier certificate. It is a contemporaneous document, dated 6th August 2007, and it is addressed to the applicant’s employer to explain why the applicant needed time off work. It is clearly of greater evidentiary value than the later certificate.
85. The Tribunal gave no weight to the later certificate because it “repeats the applicant’s claim” that he was assaulted by the police. The earlier certificate just refers to a “physical assault”. It is trite to say that a history given to a medical practitioner by a patient does not provide independent evidence of the cause of the assault. The medical practitioner can only rely on the patient’s history as to the cause of the injuries; it would be a rare case where the medical practitioner is on hand to observe the injuries as they occur, or where some other person can provide a history. It may also be the case that the patient’s account of the source of the injuries may be treated with scepticism, due to the nature of the injuries themselves or the very implausibility of the history given by the patient. In general, however, the treating doctor will often only have the patient’s account to go on.
86. What this document does is to record that on 6th August the applicant presented with injuries said to have been sustained in an assault and that Dr. Pemadasa took the view that the applicant would require 14 days off work as a result of the trauma sustained. That is corroborative evidence that should not be so lightly dismissed that the very existence of the document is never even mentioned.
87. In my view the Tribunal has overlooked this medical certificate and has therefore not considered a relevant matter that goes to the applicant’s case. In my view this oversight of a relevant piece of evidence is a jurisdictional error.

Ground 9

88. The applicant’s Ground 9 says:
    • The Second Respondent made jurisdictional error by so misunderstanding or misconstruing the claims and evidence of the applicant as to the nature of the information given by the applicant to the police as to constitute failure to consider the claims and evidence.
89. Counsel for the applicant submitted that the Tribunal failed to consider the true nature of the information that the applicant claimed to have passed on to the police and thereby failed to carry out its jurisdictional task. He relied on the findings of the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[60] that where the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and makes its conclusion in whole or in part upon the claim so misconstrued or misunderstood, the error is tantamount to failure to consider the claim, which can constitute jurisdictional error.
90. Against this, it was submitted on behalf of the Minister that the Tribunal had accurately summarised the applicant’s activities as part of the drug task force, based on his evidence at the Tribunal hearings and his earlier written claims.
91. Whilst the Tribunal’s summary of the applicant’s role in the drug task force appears to make light of his claims, I am not of the view that the Tribunal has been shown to have misconstrued or misunderstood his claims. The applicant appears, with respect, to be trespassing onto the ground of challenging the Tribunal’s factual findings, which goes into the area of merits review.
92. I am not satisfied that jurisdictional error has been made out in respect of Ground 9.

Ground 11

93. The applicant’s Ground 11 says:
    • The Second Respondent made jurisdictional error by confining consideration of whether in the future there was a real chance that the applicant would be harmed by reason of the Convention ground of political opinion to the issues of the political opinion of the applicant personally, thereby excluding the political motivation of others including those wishing to preserve their own influence or domain.
94. The applicant refers to the decision of Lindgren J in SZDRV v Minister for Immigration & Multicultural & Indigenous Affairs[61], where his Honour said at [9]:
    • It may be that in a different case an asylum seeker might be seen as politically uncommitted, inactive and neutral, yet be persecuted for that very reason by an individual or group who is or are politically zealous. In such a case, although it might be said that the individual is being persecuted because of the political opinion of the persecutors, nonetheless, the individual would be persecuted for reason of political opinion within the Convention definition. In such a case, it matters little whether the position is described as one in which political opinion is held by the persecuted, the persecutors or both: the individual is targeted by reason of political opinion.[62]
95. The applicant claims that the Tribunal fell into error when it found at paragraph 96 of the decision:
    • As the Tribunal does not accept that the applicant is considered by Mr Silva to be a political foe the Tribunal does not accept that Mr Silva organised associates to harm him in the past or that Mr Silva will seek to harm the applicant on his return to Sri Lanka by reason of the applicant’s political opinion.[63]
96. The error, it is claimed, is a failure to consider persecution of the applicant by Mr Silva by reason of Mr Silva’s political opinion rather than that of the applicant.
97. I am not of the view that this ground has been made out. I agree with the submission by counsel for the Minister that the Tribunal considered what motivation Mr Silva might have to harm the applicant. The Tribunal found at paragraph 96 that it did not accept that the applicant was considered by Mr Silva “to be a political foe”[64] and, in my view, this finding encompasses Mr Silva’s motivations for harming the applicant by reason of political opinion, whether that political opinion was that of Mr Silva or the applicant.
98. The applicant’s Ground 11 has not been made out.

Ground 12

99. The applicant’s Ground 12 says:
    • The Second Respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to the applicant’s claims in that the Second Respondent failed to consider the hypothesis that a Minister of Government involved in the drug trade and a “person of notoriety” might harm relatively minor activists seeking to mobilise the community against drugs and/or to provide useful information to the police to prosecute drug crimes.
100. The applicant submits that flawed reasoning may support a conclusion that the tribunal has approached its task without a genuine attempt to consider the evidence favouring the applicant (SZIAY v Minister for Immigration & Anor[65]; SZIIF v Minister for immigration and Citizenship[66]).
101. The applicant claims that the Tribunal’s finding that the applicant and his local anti-drug activities could not be seen as a political threat to Mr Silva is a “sweeping assumption” that it “quite unsupported by any evidence” and represents a failure by the Tribunal to give proper, genuine and realistic consideration to the applicant’s claims.
102. Against this, counsel for the Minister submitted that the Tribunal was not obliged to speculate on claims that were not made or which did not squarely arise on the material before it. He submitted that the Tribunal did consider the applicant’s claims as they were made and did not accept that the applicant had given a credible account.
103. I have previously considered whether a failure to give “proper, genuine and realistic consideration” to an applicant’s claim is a proper ground of review. In SZKGC v Minister for Immigration & Anor[67] at [38]-[42] I held that it was, saying:
     • From the decision of Gummow J in NAIS[68]it appears to be a part of the Tribunal’s obligation to provide a fair hearing under s. 425 of the Migration Act, although it would also appear to me, with respect, to have a bearing on the Tribunal’s obligation under s. 424 of the Act to review an RRT-reviewable decision.[69]
104. It could well be argued that the Tribunal’s failure to consider the medical certificate of Dr Pemadasa dated 6th August 2007 to which I have previously referred could be seen as a failure to give proper, genuine and realistic consideration to the applicant’s case, but I have already found that to be a jurisdictional error. I am not of the view, however, that the Tribunal’s claimed failure to acknowledge the nature of the drug trade and the kinds of retribution that may be dished out to those who dare to speak out against it, as submitted by counsel for the applicant, represents in itself a failure to give proper, genuine and realistic consideration to the applicant’s case.
105. Ground 12 has not been made out.

Grounds 13, 14 and 15

106. In my view, these grounds can be considered together. Ground 13 says:
     • The second respondent made a jurisdictional error by reason that the applicant was denied a fair opportunity to present his case because of impairment arising from the applicant’s psychiatric and mental condition.
107. The applicant’s Ground 14 says:
     • The second respondent made jurisdictional error by acting in breach of the second respondent’s obligations under s. 425(1) of the Migration Act.
108. Ground 15 says:
     • The second respondent made jurisdictional error by reason of its assessment of the applicant’s evidence given at the hearing as if he were a person without impairment.
109. The evidence of Dr Phillips was that, in his view, the applicant suffered from a major depressive disorder which was already well established by the time of the two hearings of the Refugee Review Tribunal, on 23rd September and 13th November 2008.
110. His expert opinion was that the applicant was affected in three ways at the time of the two Tribunal hearings:
     1. His traumatically induced fear of authority figures, including persons within the Tribunal;
     2. His cognitive impairment associated with major depressive disorder, interfering with his capacity to think rationally, to marshal information, to give evidence and to face cross-examination and./or interrogation in the legal arena; and
     3. His ongoing problems with communication in Australian English.
111. It should be made clear at this stage that I found Dr Phillips to be a most impressive and persuasive expert witness. His conclusions were cautious and conservative, and he gave clear reasons for the conclusions that he gave. His curriculum vitae shows him to be an eminent psychiatrist and one well-qualified to give the expert evidence that he gave. I had the opportunity to observe him give evidence under cross-examination over a considerable period and I formed the view that his evidence was not shaken in any way.
112. I accept his evidence in its entirety.
113. Dr Phillips gave three reasons as to why, in his view, the applicant was affected at the time of the Tribunal hearings. I am satisfied that the third reason, the applicant’s ongoing problems with communication in Australian English, is not a factor that needs to be taken into account.
114. This was a matter that was brought to the Tribunal’s attention after the applicant’s first Tribunal hearing. He wrote a letter to the Tribunal, with the aid of a friend, complaining of difficulties with the interpretation of certain matters by the interpreter.
115. The Tribunal took the decision, rightly in my view, to hold a second hearing with a different interpreter. It also asked the applicant to identify particular areas of difficulty in interpretation, but this does not appear to have been done.
116. Nevertheless, the Tribunal erred on the side of caution, and indeed of fairness, by holding a second hearing with another interpreter. In my view the Tribunal should be commended for acting in this way, by responding positively to a problem raised by the applicant that could have led to a finding that he was denied the opportunity of giving evidence and presenting arguments, as provided by s. 425 of the Act.
117. In fairness to the Tribunal, this was the only one of the three reasons given by Dr Phillips of which it was aware, and it acted appropriately to deal with that issue.
118. There is no evidence that the Tribunal was aware of the applicant’s psychiatric issues. This, then, raises the question as to whether there was a failure to comply with s. 425 of the Act.
119. This was an issue considered by Smith FM in SZIWY v Minister for Immigration & Anor[70]. The facts of that case are that the applicant’s Legal Aid solicitor had raised concerns about the applicant’s mental state at the time of submitting the application for a protection visa. However, the applicant’s medical history was not conveyed by the Secretary to the Tribunal. What did happen, though, was that the applicant’s solicitor repeated her concerns about the applicant’s mental health in her submission to the Tribunal. The solicitor did not attend the Tribunal hearing. It appears that the Tribunal was not made aware of the applicant’s full medical history.
120. Smith FM observed at [28]:
     • I consider that had the tribunal known of her medical condition it is probable that its evaluation of the credibility of the applicant’s history would have been materially affected, and it is quite possible that the conclusions it drew might have been significantly different.[71]
121. His Honour went on to consider in some detail the authorities, including SZFDE v Minister for Immigration and Citizenship[72], NAIS v Minister for Immigration & Multicultural & Indigenous Affairs[73], SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[74], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR[75], and held that:
     • ...a breach of s. 425 can occur as a result of circumstances unknown to the Tribunal and beyond its control. It also supports the Full Court’s opinion at [38] as to the jurisdictional nature of the requirements implicit in s. 425.[76]
122. In the present case, the Tribunal was not aware of the applicant’s mental health problems and, consequently, had no obligation to make its own inquiries about his mental state.
123. In my view, the decision in SZIWY is relevant to the present case and, with respect, I find his Honour’s reasoning persuasive.
124. Had the Tribunal been aware of the applicant’s mental state, it may have formed different conclusions about his credibility. It was the Tribunal’s adverse view of the applicant’s credibility that was the primary reason for its decision to affirm the delegate’s decision.
125. In my view the applicant was denied a proper opportunity to give evidence and present arguments due to his mental state and, consequently, the requirements of s. 425 of the Act have not been complied with. For this reason, and for the failure to consider relevant material as set out in [87] above, I find that jurisdictional error has been made out.
126. Orders in the nature of certiorari and mandamus will issue and I will consider the question of costs.

I certify that the preceding 126126one hundred126126twenty-sixone hundredone hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date:

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[1] See Court Book at page 49
[2] Court Book at 59-60
[3] Court Book at 61-63
[4] Court Book at 64-112
[5] Sic
[6] Court Book 157
[7] Court Book 166-169
[8] Court Book 176
[9] Court Book 180
[10] Court Book 210 at [49]-[50]
[11] Court Book 187
[12] Court Book 189
[13] Court Book 195
[14] Court Book 216-217 at [86]
[15] Court Book 217 at [88]-[92]
[16] Report of Dr Jonathan Phillips 7 August 2009 page 3
[17] Dr Phillips’ Report 7.8.2009 page 6
[18] Ibid
[19] Dr Phillips’ Report at page 10
[20] Dr Phillips’ Report at page 10
[21] The name of the applicant is not published to comply with Migration Act 1958 s. 91X
[22] Annexure C to the affidavit of Dr Phillips
[23] Dr Phillips’ Report at page 11
[24] Transcript 28.10.09 page 5
[25] Transcript 28.10.09 at page 23
[26] Court Book 217 at [93]
[27] [2008] FCA 1638
[28] (2003) 198 ALR 59; [2003] HCA 30
[29] [2009] FMCA 102
[30] [2004] FCAFC 74
[31] Court Book 217 at [88]
[32] Transcript 13.11.2008 at page 5, being Annexure B to affidavit of Kay Bentley filed 24.3.2009
[33] [2004] FCAFC 263
[34] [2005] FCAFC 926
[35] [2006] FMCA 1680
[36] [2008] FCA 913
[37] [2008] FCA 913 at [98]
[38] [2007] FMCA 1641
[39] (2003) 128 FCR 553; [2003] FCAFC 126
[40] (1985) 66 ALR 299
[41] (1996) 185 CLR 259
[42] (1990) 170 CLR 1
[43] Supra
[44] Court Book 207-209
[45] Court Book 217 at [84], [92], [95] and [96]
[46] Supra
[47] (2003) 199 ALR 265
[48] Supra
[49] (2001) 206 CLR 57
[50] (2007) 232 CLR 189; 237 ALR 64; 96 ALD 510; [2007] HCA 35
[51] (2004) 207 ALR 12
[52] (2003) 76 ALD 57; [2003] FCA 983
[53] (2004) 204 ALR 624; [2004] FCA 106
[54] The applicant’s name is not published to comply with Migration Act 1958 s. 91X
[55] Court Book 60
[56] Name not published
[57] Court Book 59
[58] Court Book 208
[59] Court Book 217
[60] Supra
[61] Supra
[62] {2005] FCA 926 at [9]
[63] Court Book 218
[64] Ibid
[65] supra
[66] supra
[67] [2009] FMCA 1015
[68] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; 223 ALR 171; 80 ALJR 367
[69] [2009] FMCA 1015 at [41]
[70] Supra
[71] [2007] FMCA 1641 at [28]
[72] supra
[73] supra
[74] (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63
[75] supra
[76] [2007] FMCA 1641 at [30]