SZOJF v Minister for Immigration & Anor [2011] FMCA 76 (14 February 2011)

Last Updated: 16 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOJF v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 76

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal erred in its treatment of evidence concerning the applicant’s psychological condition.

Migration Act 1958 (Cth), ss.424A, 425

Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 MZYHS v Minister for Immigration & Anor [2010] FMCA 417 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 SZNMJ v Minister for Immigration and Citizenship and Another (2009) 112 ALD 284; [2009] FCA 1345 SZNOC v Minister for Immigration and Citizenship [2010] FCA 149

Applicant:

SZOJF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 878 of 2010

Judgment of:

Barnes FM

Hearing date:

19 November 2010

Last date of submissions:

6 December 2010

Delivered at:

Sydney

Delivered on:

14 February 2011

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr G Kennett SC

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 878 of 2010

SZOJF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal dated 30 March 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
2. The applicant, a citizen of India, arrived in Australia in July 2009 and applied for a protection visa in August 2009. His application was refused and he sought review by the Tribunal.
3. In essence, the applicant claimed that he was a Christian who had been involved in protests and proselytising in India and that as a result he had been attacked and threatened by Hindu extremists in his home state of Kerala. He claimed to fear that if he returned to India he would be killed by Hindu extremists.
4. The applicant attended a Tribunal hearing on 11 February 2010 at which he gave the Tribunal a medical certificate, a letter of referral and a copy of a report from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) concerning his mental state. He subsequently provided the Tribunal with two certificates attesting to his involvement in the church in India and the claimed threat to his life from Hindu extremists.

The Tribunal decision

5. In its reasons for decision the Tribunal set out in detail the claims made in the applicant’s protection visa application, his evidence at a Departmental interview and at the Tribunal hearing. It also referred to the supporting documentation provided by the applicant.
6. In its findings and reasons, under the heading “The applicant’s ability to participate effectively in the hearing before the Tribunal”, the Tribunal referred to the fact that at the hearing the applicant had produced a letter dated 13 January 2010 “from a counsellor at STARTTS who said that the applicant had been referred to STARTTS on 23 October 2009, and that he had reported that he had experienced severe torture and...witnessed many atrocities”. The Tribunal recorded that the letter stated that the applicant was “clinically observed to suffer from depression and anxiety, as a result uncertain legal status in Australia”, and that the counsellor said he also suffered from “Complex Post Traumatic Stress Disorder symptoms”. The Tribunal also referred to a letter dated 11 January 2010 “from a general practitioner stating that the applicant was suffering from depression and that he had [been referred] to a hospital for psychiatric assessment and counselling”.
7. The Tribunal accepted that the applicant was “suffering from depression and anxiety as a result of his uncertain legal status in Australia” and that he “display[ed] symptoms of Post-Traumatic Stress Disorder as stated in these letters”. It referred to the fact that at the hearing the applicant had said that “he could not concentrate” and accepted that his medical conditions were relevant to his ability to participate effectively in a hearing. However, the Tribunal found that the applicant had “exhibited no difficulty in recalling events at the hearing” and was “able to give ready answers” to the Tribunal questions, although he “expressed uncertainty with regard to dates”. “Having taken account of the applicant’s medical conditions”, the Tribunal considered “that he was able to participate effectively in the hearing”.
8. In assessing the applicant’s claims, the Tribunal found that, as it had put to the applicant in the hearing, it had “great difficulty” in accepting that he was telling the truth about the problems he claimed to have experienced in Kerala. It referred to conflicting claims in his protection visa application and at the Tribunal hearing as to when he said he had experienced an attack on a procession of Christians at Christmas in Orissa (whether it was in 2007 as originally claimed or 2006 as claimed at the hearing). He had confirmed that his claim was that he “suffered an injury when the procession he [was] leading had been attacked by Hindu extremists”, that “he had subsequently been threatened by Hindu extremists”, and “in February of the following year he had gone to [a place in Karnataka] for six months”, and that thereafter he returned to his village where he was “again attacked by Hindu extremists when returning home after a day of fasting and prayer on the anniversary of the incident in Orissa”.
9. Contrary to the applicant’s claim at the hearing, the Tribunal found, based on country information to which it referred, “that the problems which happened at Christmas in Orissa...happened in December 2007”. However, even though this accorded with the protection visa claim (and taking into account the applicant’s claimed difficulty in remembering dates), the Tribunal found that if the procession to which the applicant referred happened in December 2007, “the timing he gave for the rest of the events in his narrative would not make sense”, as it “would mean that he went to Karnataka only in February 2008 and remained there for six months”, yet at the same time “his passport was issued in Kerala in April 2008”. Further, the “incident on the first anniversary of the events in Orissa would have to have occurred in December 2008”, yet the applicant had said in a statement accompanying his original application that it was only after this incident that he had been advised to leave India and that he obtained his passport. However, in fact, he obtained his passport in April 2008.
10. The Tribunal also had regard to the fact that on either version of events, the applicant “would have spent a lengthy period of time after the second incident at his home in Kerala” before leaving India in July 2009, which suggested that he was not really in any danger at all.
11. The Tribunal referred to other perceived problems with the plausibility of the applicant’s account of his experiences in light of country information before it, including the fact that in his protection visa application the applicant had claimed that he and his wife had joined the Emmanuel Mission Church in 1995 and at the Tribunal hearing he indicated he belonged to the Jacobite Church in Kerala. While he initially said that the Emmanuel Mission Church was a wing of the Jacobite Church, when the Tribunal put to him that, based on country information, this was not correct, he said he had only attended Bible studies at the Emmanuel Mission Church. The Tribunal was of the view that “anyone involved with both the Emmanuel Mission Church and the Jacobite Church would know that the former [was] not related to the latter”.
12. In addition, the Tribunal had regard to the fact that the applicant claimed that on the second occasion (in December 2007 or 2008), “he was attacked by people wielding machetes”, but that the only injury he suffered was “a cut tendon in his right index finger”. While the Tribunal accepted that the applicant had suffered such an injury, it did not accept that if he had been attacked by people with machetes as claimed, he would have escaped with such a “minor injury”.
13. Further, the Tribunal did not consider that the applicant’s claims were consistent with independent evidence in relation to the threat posed to Christians in Kerala by Hindu extremist groups. Having regard to independent evidence, the Tribunal also considered “that the Government of Kerala provid[ed] a reasonably effective police and justice system” and did “not fail to meet the standards of protection required by international standards”.
14. The Tribunal addressed the letters the applicant had produced at the hearing from a bishop and another person in India stating that he was “facing a threat to his life from Hindu extremists”. However, it gave “greater weight to the independent evidence... in relation to the threat posed by Hindu extremist groups to Christians in Kerala and to the problems with the applicant’s own evidence” discussed in its reasons for decision.
15. The Tribunal did “not accept that the applicant [was] telling the truth about the problems he claims to have had in Kerala”. It did not accept “he was attacked by activists from the VHP or the RSS when leading a procession in December 2006 or December 2007, nor that after this incident the Hindu extremists came to his home on many occasions and tried to attack him but he escaped”. The Tribunal did “not accept that the applicant was attacked a second time in December 2007 or December 2008 by activists of the BJP, the VHP or the RSS armed with machetes, nor that after that the Hindu extremists continued to threaten him until he left India in July 2009”. While the Tribunal accepted “that the applicant ha[d] at some time suffered an injury to his leg and a cut tendon in his right index finger”, it did “not accept that he suffered these injuries in the attacks he ha[d] described”.
16. The Tribunal did accept that the applicant was a Christian, that he was “interested in Bible studies” and in “spreading the Bible” and that “besides attending the Jacobite Church he attended Bible studies at the Emmanuel Mission Church in his village”, just as he was apparently attending Bible studies at a church in Australia. However it did “not accept that he had any greater involvement in that church” and, having regard to “independent evidence regarding the threat posed by Hindu extremist groups to Christians in Kerala”, did “not accept that there [was] a real chance that the applicant [would] be prevented from practising his religion as a Christian in the same way” as he had in the past or that he would be “otherwise persecuted for reasons of his religion as a Christian” if he returned to his home in Kerala now or in the reasonably foreseeable future.
17. The Tribunal affirmed the decision of the delegate.

These proceedings

18. The applicant sought judicial review by application filed in this court on 22 April 2010. The application alleges generally that the decision involved jurisdictional error and breach of natural justice and stated that grounds of the application would be “filed later”. However, the applicant did not file any amended application or written submissions elaborating on his grounds.
19. The unparticularised assertions of jurisdictional error are not made out.
20. In oral submissions the applicant contended that the Tribunal had not considered his application “reasonably well” and that “[o]n account of [his] health conditions, [he] was not able to present [him]self in an appropriate way” and make himself understood. He took issue with the fact that the Tribunal had relied on independent country information rather than the particular claims made by him in relation to the problems he claimed he had suffered. He also appeared to contend that the medical certificate he provided to the Tribunal indicated that he “had problems connected with the sufferings [he had experienced] at the hands of [his] enemies”, but that the Tribunal had not taken this “as reasonable or strong evidence to support [his] case”.
21. The applicant’s general contention that the Tribunal did not consider his application “reasonably well” appears to seek impermissible merits review. The Tribunal considered the claims made by the applicant. It was open to it not to find the applicant’s account of past harm plausible. The applicant’s disagreement with its findings does not establish jurisdictional error.
22. In relation to the applicant’s contentions that his medical condition affected his ability to participate in the Tribunal hearing, I note that the only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. In its account of the hearing, the Tribunal recorded that the applicant produced a letter dated 13 January 2010 from STARTTS and outlined the content of that letter, as well as a letter of 11 January 2010 from a general practitioner. It also recorded that the “applicant said that he could not concentrate and he could not sit for long periods of time”.
23. The Tribunal told the applicant “that he could ask for breaks in the hearing whenever he needed them”. The applicant referred to the fact that he had no assistance in preparation of his original application and stated that “there were some mistakes in the dates because he had problems with concentration.” He confirmed the accuracy of the handwritten statement accompanying his claims.
24. The only other reference to such issues in the Tribunal’s description of what occurred at the Tribunal hearing is that after the Tribunal put to the applicant that the timing of the events he described in India did not fit, the applicant said that “there had been some confusion and he had not been able to remember the dates.” The Tribunal explained that the “problem was not just one of dates”, but that “the timing did not fit” (in the manner it explained to him). The applicant then discussed his claims further.
25. As set out above, in its findings and reasons the Tribunal expressly considered the applicant’s ability to participate effectively in the Tribunal hearing in light of the evidence from STARTTS and the letter from his general practitioner and the applicant’s claim that he could not concentrate. The Tribunal acknowledged that “the applicant’s medical conditions [we]re relevant to [his] ability to participate effectively in a hearing”. However it had regard to the fact that “the applicant [had] exhibited no difficulty in recalling events at the hearing” and “was able to give ready answers to... questions although he expressed uncertainty with regard to dates”. The Tribunal concluded that, “[h]aving taken account of the applicant’s medical conditions...he was able to participate effectively in the hearing before the Tribunal”. The Tribunal took into account the applicant’s expressed uncertainty in relation to dates in assessing his account of the dates on which claimed experiences occurred. However it found that on either version of the events complained of by the applicant (in particular the timing of the Christmas procession in Orissa), there were difficulties with the timing.
26. The applicant has not established that the Tribunal failed to have regard to his medical conditions and his asserted difficulties relevant to his ability to participate effectively in the hearing.
27. Nor has the applicant established, on the evidence before the court, that he was not able to present his case to the Tribunal properly because of his health conditions. Insofar as his claim is, in effect, a claim that the hearing could not proceed in accordance with the Migration Act 1958 (Cth) (the Act) because he was not capable of participating effectively in the hearing it is not made out. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 an applicant had given evidence to the Tribunal in a vague and confused manner in circumstances where, unbeknownst to the Tribunal, he had recently received news of his father’s death, such that he was not in a condition to give evidence and present arguments to the Tribunal. However there is no admissible evidence before the court to establish that, at the time of the hearing, the applicant in this case was not able to participate in an effective way in the hearing. As in Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41, there is no evidence that the applicant’s condition denied him the opportunity to give such evidence and present arguments in support of his application as he thought appropriate. Nor is there any “suggestion that his condition impaired in any substantial way his capacity for rational decision-making in his own interests so far as the presentation of his case was concerned” (Keane CJ in SZNVW at [15]).
28. In SZNVW Keane CJ expressed the view that s.425 of the Act does not require a Tribunal to press a visa applicant to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his psychological problems for any aspect of the case he sought to present (at [20]). As his Honour stated at [22]:
    • In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light.
29. Similarly, in this case the material the applicant put before the Tribunal that he now relies on in these proceedings is not such as to demonstrate an unfitness to give evidence and present arguments at the Tribunal hearing. The applicant “had the opportunity to adduce such evidence as he considered appropriate as to his psychological state and its impact on his demeanor, memory and consistency” (see SZNVW per Emmett J at [49]). However the “Tribunal was not obliged to conduct an inquiry to discover whether the Visa Applicant might have been able to put his case better or support it with other evidence” (see Emmett J at [49] and Perram J at [71] – [87] in SZNVW).
30. The applicant also took issue with the Tribunal’s conclusions (based on independent country information) about the situation in India. However it is well established that it is for the Tribunal to determine the weight to be attributed to items of independent country information and the applicant’s disagreement with the merits of the Tribunal decision does not establish jurisdictional error. In light of the country information to which it referred (for example, in relation to the negligible presence of Hindu militant groups in Kerala, the relatively large and economically well-placed Christian community and the effective police and justice systems), it was open to the Tribunal to conclude that the applicant would not face persecution as a result of practising his religion.
31. As counsel for the first respondent submitted in written submissions, the applicant attended a hearing at which the Tribunal’s concerns about his claims were thoroughly canvassed. There is nothing in the material before the court to support any claim that the Tribunal failed to comply with s.425 of the Act, in particular its obligation to raise determinative issues with the applicant (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63).
32. Further, as submitted for the first respondent, this is not a case in which any obligation arose under s.424A(1) of the Act, given that the applicant’s claims were not accepted by reason of the nature of those claims themselves and a comparison with general country information.
33. That leaves for consideration the issue that was raised in the applicant’s oral submissions, albeit tangentially, as to whether the Tribunal erred in its treatment of the evidence before it concerning the applicant’s psychological condition. As set out above, the Tribunal had before it a medical certificate from Dr Abdulla, a general practitioner, dated 11 January 2010 stating that the applicant was “suffering from depression”, needed “psychiatric consultation” and had been referred “to Auburn hospital for psychiatric assessment and counselling”. Accompanying this certificate was a copy of a letter of referral to Auburn Hospital dated 11 January 2010 from Dr Abdulla stating that the applicant had “presented with depression and sometime suicidal thought”, and requesting assessment and advice on future management. There was however, no evidence before the Tribunal of any psychiatric assessment.
34. Rather, the applicant gave the Tribunal a copy of a one page letter headed “To Whom It May Concern” from a “Bi-Cultural Counsellor/Project Officer” with STARTTS dated 13 January 2010. The letter does not refer to any professional qualifications of the signatory. It was said to be written to express the writer’s “concerns for the emotional well-being, settlement and welfare” of her client. The letter-writer stated that the applicant had been referred to STARTTS on 23 October 2009 “due to his many symptoms and emotional difficulties that are a result of his highly traumatic experiences in his country of origin, India”.
35. The counsellor recorded that the applicant had “reported” that he had “experienced severe torture (both (sic) physically, psychologically and financially)”, and reported that he had “witnessed many atrocities, caused by organised violence”.
36. The writer stated that she had been providing counselling for the applicant on a weekly basis since the beginning of 2010, but that at the time of writing (13 January 2010) “we are at the stage of initial assessment of his settlement needs physical and psychological health”.
37. The letter stated that at presentation the applicant “was clinically observed to suffer from depression and anxiety, as a result [of] uncertain legal status in Australia”. It observed that “he described his anxiety as exacerbated due (sic) no medical or working rights access in Australia”, and that in addition he had “complex long term traumatic experiences, coupled with financial hardship”.
38. The counsellor observed that the applicant also suffered from “complex Post Traumatic Stress Disorder symptoms” which were described, and that he lacked “social and financial support in Australia”.
39. The letter concluded that, based on the “clinical diagnosis and suggested treatment” for the applicant (which was not described), it was “difficult to state his prognosis given his recovery is dependent on his legal status in Australia”. The writer recommended favourable consideration of his circumstances “from a legal status”.
40. As discussed above, the Tribunal considered the relevance of this evidence to the applicant’s ability to participate in the hearing and specifically took into account his claimed difficulty in remembering dates in its assessment of the credibility of his evidence, in particular making allowance for the possibility that his claim that he was attacked during a Christmas procession related to either December 2006 or December 2007.
41. The Tribunal accepted that the applicant was suffering from depression and anxiety as a result of his uncertain legal status in Australia and also that he displayed “symptoms” of Post-Traumatic Stress Disorder as stated in the supporting letters.
42. In light of the decision of Collier J in SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 the issue that arises is whether the STARTTS letter was also corroborative evidence of the truth of the applicant’s claims about his history and whether the Tribunal erred in some way by not treating it as such. In SZKHD, the Tribunal had stated that it was mindful of the applicant’s mental health issues and circumstances. There was before it a report from a Red Cross psychologist stating that the applicant had major depressive disorder with suicidal ideation. The Tribunal stated that it did not question the conclusions of the treating psychologist, that it had endeavoured to give the applicant the opportunity to put her case and that while it was aware of minor inconsistencies in her claims it had not placed any weight on them. It did not accept all the applicant’s claims about past events.
43. Collier J found on appeal that this court had erred in not finding that the Tribunal had overlooked a psychological report submitted by the appellant, on the basis that the report was plainly relevant material of some substance which the Tribunal needed to take into account as corroborative of the applicant’s claims that she had been detained for three years. Her Honour found that the extent to which the Tribunal did take the report into account was “at best uncertain”. As the Tribunal had stated that it did not question the conclusions of the psychologist, Collier J held that it “naturally follows that the Tribunal accepts such conclusions of the consultant psychologist as appear from her report” (at [27]), that while the conclusions of the psychologist “were most likely in relation to the diagnostic formulations”, it also was “clear from a plain reading of the report of the consultant psychologist that her diagnostic formulations were inextricably linked with her acceptance of the factual claims of the appellant concerning the appellant’s alleged incarceration in China” (at [27]). This was said to be “plain from a consideration of the [psychologist’s] report as a whole” and made even clearer in that part of the report that referred to a diagnostic formulation explained as a condition afflicting the appellant because of, among other things, her “negative life events/incarceration”.
44. In SZKHD Collier J rejected a submission for the Minister that the Tribunal had merely accepted the psychologist’s diagnostic formulations, but had rejected the factual basis of those formulations, on the basis that such an interpretation “arguably makes a nonsense of the consultant psychologist’s report, and is an interpretation by the Tribunal which should not be accepted in the absence of clear indication by the Tribunal” (at [27]).
45. Her Honour found that there was no such clear indication apparent in the case before her and that “an equally likely interpretation of the Tribunal’s findings” in relation to the report was that it did not take into account the psychologist’s report “in any meaningful sense” (at [27]).
46. As discussed in the post-hearing written submission for the first respondent, SZKHD was distinguished by Cowdroy J in SZNMJ v Minister for Immigration and Citizenship and Another (2009) 112 ALD 284; [2009] FCA 1345 in circumstances where a STARTTS report did not contain a detailed history for the visa applicant. Cowdroy J rejected a contention that the Tribunal was under an obligation to inquire into the facts relied upon by the psychologist in preparing the STARTTS report (at [33] – [42]), noting that the Tribunal had specifically considered the capacity of the visa applicant to give evidence. Similarly, in this case, the Tribunal specifically considered the capacity of the applicant to give evidence and it cannot be contended that the Tribunal failed to make an obvious inquiry about a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [25]).
47. In SZNMJ Cowdroy J also considered whether the Tribunal had failed to consider the STARTTS report, in particular the true significance and weight of the psychological assessment, such that it could be said that the Tribunal was aware from that report that the appellant had been “subject to trauma in the past and had current fears for his family” (at [44]). The appellant in that case had submitted that there was no “active intellectual process” (at [44]) undertaken by the Tribunal to determine the relevance of the psychological assessment to the appellant’s claim. However, his Honour found (at [45]) that the STARTTS report had been said by the Tribunal to be relevant to determining the applicant’s ability to participate effectively in a hearing, that it was “provided for such purpose”, that no history was contained in the STARTTS report and that “the Tribunal had no knowledge of any information that may have been provided by the appellant to the psychologist”. In those circumstances his Honour found that there was “no obligation upon the Tribunal to consider the report for any reason other than its role in assessing whether the appellant had the capacity to participate in the Tribunal hearing”. His Honour distinguished the circumstances from those considered in SZKHD on the basis that there was no factual history in the report tending to support some of the specific claims made by the appellant (at [45]). In addition, Cowdroy J found that “the STARTTS report was not a critical matter in the Tribunal’s determination” (at [46]) and that “the report and the information in it was not the reason, or part of the reason, for the Tribunal’s rejection of the [applicant’s] claims of persecution”.
48. Similarly, in SZNOC v Minister for Immigration and Citizenship [2010] FCA 149, Bennett J rejected a contention that the Tribunal had not given sufficient weight to a psychologist’s report from STARTTS. It had been submitted that acceptance of the psychologist’s conclusion about the appellant’s mental state necessitated acceptance of her stated reasons for that mental state, being alleged persecution in her home country, as well as an explanation for any inconsistencies in her evidence at the Tribunal hearing.
49. Her Honour found (at [9]) that “on its face” the STARTTS report “was prepared for the purposes of assessing the female appellant’s ability to perform paid employment”, and her “need for financial assistance”. The Tribunal had considered the report in relation to whether it supported her claim that she had been receiving counselling for trauma, and “in relation to whether she was unable to recall events or confused dates and places ... relevant to her ability to participate in the Tribunal hearing” (at [9]).
50. Her Honour continued (at [10]):
    • It cannot be said that the Tribunal accepted the conclusions in the report and that it necessarily followed that the Tribunal was bound to accept the factual basis for an accepted diagnosis. The STARTTS report does not deal with the connection between the fact that the female appellant ‘briefly described the religious persecution and severe trauma that she and her husband experienced in India’, about which the report contained no detail, and the psychological symptoms she displayed. The STARTTS report does not refer to a symptom of difficulty of recall or an inability to participate in a hearing. The STARTTS report in this regard is similar to a STARTTS report described by Cowdroy J in SZNMJ v Minister for Immigration and Citizenship [2009] 1345 at [45]. His Honour there said that where no history was contained in the report and the Tribunal had no knowledge of any information that may have been provided by the appellant to the psychologist, there was no obligation upon the Tribunal to consider the report for any reason other than its role in assessing whether the appellant had the capacity to participate in the Tribunal hearing.
51. Bennett J found that the circumstances were distinguishable from SZKHD and that it could not be said that the Tribunal had failed to consider the STARTTS report or that it erred in determining not to give it any weight relevant to the issues before it.
52. The STARTTS report in this case is not said to have been prepared for the purposes of establishing an inability to perform paid employment. It is addressed to “Whom It May Concern” and recommends “kindly consider[ation of his] circumstances from a legal status” on the basis that it is “difficult to state his prognosis given his recovery is dependent on his legal status in Australia”. There is, however, no indication that the letter writer is a psychologist or otherwise qualified to make a clinical diagnosis. Indeed it is not clear whether the diagnosis was made by the writer.
53. Akin to the STARTTS reports considered in SZNOC and SZNMJ, the letter from STARTTS merely records, very briefly, that the applicant “reported” experiencing “severe torture (both (sic) physically, psychologically and financially)”, and “reported that he ha[d] also witnessed many atrocities, caused by organised violence”. No detailed factual history is given in the letter and no link is drawn between any particular claimed experiences and any present conditions (in contrast to the psychologist’s report considered in SZKHD).
54. In these circumstances I am of the view that SZKHD is distinguishable, having regard to the different nature of the reports in question. In this case the Tribunal’s acceptance of the clinical diagnosis of depression and anxiety as a result of the applicant’s uncertain legal status in Australia at an initial assessment stage does not involve acceptance of any prior history of the applicant such that the Tribunal ought to have considered whether the report was corroborative of his claims. Nor does the fact that the applicant was said to suffer from complex Post-Traumatic Stress Disorder “symptoms”.
55. It has not been established that the Tribunal failed to give the report proper consideration in a manner constituting jurisdictional error. The report was clearly relevant to the manner in which the Tribunal conducted the review, albeit it was not a relevant consideration in the sense of a consideration the Tribunal had to take into account in the manner considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30. The Tribunal had regard to the report in relation to the applicant’s ability to participate effectively in the hearing (as did the Tribunal in SZNMJ).
56. Importantly, in contrast to SZKHD, to the extent that the STARTTS letter in this case offered any diagnosis, it described the applicant’s depression and anxiety “as a result [of his] uncertain legal status in Australia”. This conclusion was expressly accepted by the Tribunal. However acceptance of such analysis does not mean that the diagnosis of depression and anxiety was such as to provide corroboration for any claim by the applicant about events in India.
57. Insofar as the STARTTS report noted that the applicant suffered from complex Post-Traumatic Stress Disorder “symptoms”, this was a description of symptoms which the applicant exhibited rather than a formal medical diagnosis (in contrast to the diagnosis of major depressive disorders with suicidal ideation in the psychologist’s report in SZKHD). I note also that there was no suggestion that the list of symptoms the applicant was said to suffer from was based on anything other than his own reporting. No link was drawn between any of these symptoms and any particular experiences in India or elsewhere.
58. This is not a case in which what was before the Tribunal was a report in which diagnostic formulations could be inextricably linked with acceptance by the reporter of the factual claims of an applicant concerning events in the applicant’s home country (cf SZKHD).
59. I note that in written submissions the first respondent submitted formally that if SZKHD was not distinguishable it was “wrongly decided”. Such an argument was before the Full Court of the Federal Court in MZYHS v Minister for Immigration and Citizenship, in which judgment was reserved at the time of the hearing (but now see Minister for Immigration and Citizenship v MZYHS [2011] FCA 53) . As I am of the view that SZKHD is distinguishable on the facts of this case, I considered that it was not necessary to await delivery of judgment in MZYHS as to whether or not SZKHD was plainly wrong. It is apparent from the decision at first instance in MZYHS v Minister for Immigration & Anor [2010] FMCA 417 at [13] that the report considered in that case was set out “as facts, the various assertions made by the applicant as to his treatment” in his home country, without qualification by the report writer. This is not such a case.
60. Hence, although SZKHD is, as a decision of the Federal Court on appeal, binding on this court, it is clearly distinguishable having regard to the particular circumstances of that case and the approach taken in SZNMJ and SZNOC.
61. It has not been established that the Tribunal fell into jurisdictional error in the manner in which it dealt with the evidence before it concerning the applicant’s psychological condition.
62. As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 14 February 2011