SZQLZ v Minister for Immigration & Anor [2012] FMCA 1 (31 January 2012)

Last Updated: 31 January 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQLZ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1

MIGRATION – Review of Independent Merits Reviewer report and recommendation in respect of an offshore entry person – applicant claiming persecution in Iraq on the basis of imputed political opinion – applicant not believed in critical respects – applicant claiming a mental disability as an explanation for problems in his evidence to the Reviewer – applicant’s mental health taken into account by the Reviewer – no jurisdictional error.

Migration Act 1958 (Cth), ss.425, 427, 477

Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v SZIAI (2009) 259 ALR 249 Minister for Immigration v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14 SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592 SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 SZIWY v Minister for Immigration & Anor [2007] FMCA 1641

Applicant:

SZQLZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DR IRENE O’CONNELL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1597 of 2011

Judgment of:

Driver FM

Hearing date:

12 December 2011

Date of Last Submission:

23 December 2011

Delivered at:

Sydney

Delivered on:

31 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr L Robison

Solicitors for the Applicant:

Koutzoumis Lawyers

Counsel for the Respondents:

Ms D Watson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application is extended up to and including 27 July 2011.
(2) The application is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1597 of 2011

SZQLZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR IRENE O’CONNELL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a recommendation made by the second respondent (“the Reviewer”) to the Department of Immigration and Citizenship (“the Minister’s Department”) that, as the applicant does not meet the criteria for a protection visa under the Migration Act 1958 (Cth) (“the Migration Act”), he not be recognised as a person to whom Australia owes protection obligations.
2. The following statement of background facts is derived from the submissions of the parties.
3. The applicant is a 29 year old male citizen of Iraq who has lived in Basra for most of his life. He claimed to fear harm because of his imputed political opinion as pro-coalition and anti-Thar Allah[1]. He also claimed to fear harm on the basis that he would return to Iraq as a failed asylum seeker from a Western country.
4. The applicant claimed that individuals, who may have been members of the Thar Allah, approached him and his brother in 2004 and demanded that they provide information about the company they worked for, Southern Petroleum. The brothers refused to spy on the company and the applicant's brother and father were subsequently attacked on their way to work and his brother was killed. After that, the applicant and his family moved to Baghdad and did not return to Basra until 2006.
5. In 2008 the applicant was shot and sustained an injury to his arm which required him to be hospitalised. Although the applicant suspected that the Thar Allah group was responsible for this attack, he could not be certain. After this incident the applicant decided to leave Iraq.
6. The applicant claimed that he left Iraq in December 2009, and travelled to Australia through Iran, Malaysia and Indonesia. He arrived at Christmas Island by boat on 13 January 2010. He sought assessment as a refugee, and was interviewed for the purposes of that assessment on 14 March 2010. The assessment, dated 22 April 2010, was unfavourable to the applicant.
7. The applicant subsequently sought independent merits review of that assessment and, having been interviewed on 6 August 2010, was subject to an adverse recommendation dated 5 September 2010.
8. Following the judgment of the High Court in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14, the applicant was provided with a further independent merits review. He was interviewed once more on 27 January 2011 before the recommendation, the subject of this application was made by the Reviewer on 4 May 2011.

Findings of the Reviewer

9. The Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Protocol.
10. The Reviewer found that the applicant was not a credible witness in respect of key aspects of his claims. She found that the applicant's oral evidence in relation to who he claimed to be targeting him and why was equivocal and lacking in detail and was not satisfied that the applicant faced serious harm if returned to Iraq[2].

The present application

11. The applicant relies upon his judicial review application filed on 27 July 2011 which contains the following grounds of review:
    • 1. The second respondent failed to properly consider all matters submitted by or on behalf of the applicant due to issues of credit.
    • 2. The applicant was not afforded procedural fairness due [to] his mental health at the time of the independent merits review interview.
12. The applicant also seeks an extension of time for the filing of the application, pursuant to s.477(2) of the Migration Act.

The evidence and submissions

13. In support of his application for an extension of time the applicant relies upon his own affidavit filed in court on 12 December 2011 and the affidavit of his solicitor, Gary Koutzoumis filed on 9 December 2011.
14. In support of his application generally, the applicant relies upon the affidavit of Sue Archer filed on 15 November 2011, to which is annexed a transcript of the hearing conducted by the Reviewer on 27 January 2011, the affidavit of Mr Koutzoumis filed on 27 July 2011 and the affidavit of Zaki Hajjar filed on 6 December 2011, to which is annexed a report by Mr Sam Borenstein, clinical psychologist. I received the affidavit of Mr Hajjar and the accompanying medical report over the objections of the solicitor for the Minister.
15. The Minister tendered a book of relevant documents filed on 5 September 2011.
16. The applicant contends that the Reviewer fell into error in two respects: first, by misleading the applicant as to the essential and significant issue upon which the review would turn, and secondly, by not affording the applicant procedural fairness in making adverse credibility findings notwithstanding the applicant’s state of mental health at the time of the hearing conducted by the Reviewer. The applicant contends that the circumstances of the case warrant the granting of an extension of time for the filing of the application in the interests of the administration of justice.
17. The Minister opposes an extension of time on the basis that the applicant has not raised a serious question to be tried. The Minister contends that the applicant was on notice, from the decision of the first Reviewer,[3] that his credibility was in issue. The Minister contends that the statement in the transcript relied upon by the applicant in support of the first ground of review does not amount to a statement to the effect that the applicant’s claims were believed. At its most favourable interpretation to the applicant, so the Minister contends, it meant that the Reviewer had not, at that stage, made up her mind about the applicant’s credibility.
18. In relation to the second ground, the Minister notes that the STARTTS report relied upon by the applicant was received some three days before the hearing conducted by the Reviewer and was referred to by the Reviewer in her reasons at [60] where she stated:
    • Making allowances for the claimant’s mental state as advised by STARTTS the Reviewer nonetheless did not find the claimant to be a credible witness in respect of key aspects of his claims for protection.
19. The Minister relies upon the judgment of the Full Federal Court in Minister for Immigration v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575.
20. In the course of argument, I invited further submissions on the decision of the High Court in Minister for Immigration v SGLB (2004) 207 ALR 12. The applicant filed additional submissions on 15 December 2011 in which he contends that SGLB is distinguishable because:
    • a. In the present case the second respondent was on notice of the impending deterioration of the applicant’s mental health (see the [STARTTS] report;
    • b. The applicant’s mental health did indeed deteriorate;
    • c. Although there is no general duty to obtain this type of material, in some circumstances it is incumbent upon a decision maker to seek to obtain further material. That is, the circumstances of the case (ie where the [STARTTS] report prophesised deterioration) imposed a duty to make enquiries; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1.
21. The applicant contends that in the circumstances of this case the Reviewer was under a duty to make further inquiries as to the applicant’s mental health before making adverse credibility findings against him.
22. The Minister contends that SGLB confirms that there was no obligation on the Reviewer to obtain a further psychological assessment. The Minister submits that that decision, together with other High Court authority make clear that there is no general duty to inquire either under the Migration Act or the general law and no duty arose on the facts of this case.

Consideration

23. I am satisfied that the interests of the administration of justice call for an extension of time in this case. The application was filed some 43 days outside the period prescribed in s.477(1) of the Migration Act. That period of delay is neither trifling or inordinately long. The applicant and his solicitor have, by affidavit, properly explained the reasons for that delay. The applicant experienced some difficulties in detention in obtaining legal advice and representation. He acted very promptly once he received a grant of Legal Aid. Further, I am satisfied that the application raises a serious question to be tried. The issues are whether the applicant was misled as to the essential and significant issue in the review and whether the review process was procedurally unfair by reason of the applicant’s mental disability. Those are issues of real substance in the circumstances of this case. I will order, pursuant to s.477(2) of the Migration Act, that the time for the filing of the application be extended up to and including 27 July 2011.
24. I now turn to the grounds of review in the application.

Ground 1

25. The Minister concedes that procedural fairness requires a decision maker to identify for the person affected any critical issue not apparent from the nature of the decision or in terms of the statutory power[4]. However, as the Minister also submits, it is trite law that a decision maker is not required to give the applicant a running commentary about what it thinks about the evidence that is given[5].
26. There were, in the present case, two reviews of the applicant’s claims for protection. The first review was not relied upon following the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia[6]. The applicant was on notice from the first review that his credibility was in issue as the outcome had turned upon his credibility. During the hearing conducted by the present Reviewer the applicant was questioned in detail about his claims and there was, for the most part, nothing to suggest to the applicant that his credibility did not still remain in issue. At T35 (line 5) the applicant indicated an apprehension that he was not being believed. He said:
    • As an observer from a distance. I couldn’t stay in the shop. There were people working there. It’s just a sense. I sense that you’re doubting what I’m saying. Do you doubt that I’ve been through all of this from 2002 to today?
27. The Reviewer responded[7]:
    • I’m not sure that I doubt the incident of your brother or you being attacked. It’s more being able to put it within the Convention, so that you were targeted rather than perhaps these were, you know, the event of 2008, that it has any connection that you’re being pursued or persecution in the Convention sense, as opposed to perhaps, as I said earlier, whether it was just criminals approaching you. That’s, I guess, what I’m trying to satisfy myself about.
28. At T36 (line 1) the applicant again asserted the truth of his claims in saying:
    • I’m just telling you the truth, just what happened. And if I wanted to, you know, if I wanted to tell you something other than the truth I would have said other things. I could have made up stories that this and this and this happened.
29. The Reviewer responded at line 5:
    • I haven’t said that I’ve disbelieved that these things have happened. And I know that it might sound to you like I’m splitting hairs, but what I’m trying to do is be satisfied about it being – that you’re being persecuted for a Convention reason as opposed to being caught up in the general unrest or the poor security situation of Iraq.
30. The applicant responded at line 10:
    • No, I’m not – what I’m trying to say is that I’m not because of the security in general in the country that I’m worried about going back. When those people attacked me, my father noticed that someone was watching me or they were keeping an eye on me, and my father told me they’re going to try to kill you.
31. The Reviewer then proceeded to finalise the hearing with a discussion of procedural matters.
32. In my view, it was reasonable for the applicant to conclude from the two statements made by the Reviewer that an essential and significant issue in the review would be whether there was a Convention nexus with the harm claimed by the applicant. It was apparent that the Reviewer was concerned (and wanted the applicant to understand her concern) that even if she was satisfied that he had experienced harm in the past and feared harm in the future, there may be no link to the Refugees Convention. The applicant was uncertain as to who had been responsible for the death of his brother. The Reviewer was foreshadowing that the harm experienced and feared by the applicant may be no more than harm at the hands of ordinary criminals or random violence.
33. In the event, the Reviewer’s concern was not manifested in her report. She based her report upon adverse credibility findings and it was unnecessary for her to deal with any issue of a Convention nexus. The applicant contends that the statements made by the Reviewer prevented the applicant from further attempting to persuade the Reviewer of his credibility because he was led to believe that his credibility was not in issue. I do not accept that contention. At no stage did the Reviewer state that she accepted the credibility of the applicant’s claims. What she said, in effect, was that she had not made up her mind on that issue but that, even if she did accept that his claims were factually true, there was still an issue of whether a Convention nexus had been established.
34. In other words, the effect of the Reviewer’s statements was to identify for the applicant a second issue of significance in the review in circumstances where the first issue (that of his credibility) was already readily apparent to him. The statements by the Reviewer were made towards the end of the hearing and the applicant had already had a fair opportunity to persuade the Reviewer of the credibility of his claims. It was apparent that the applicant doubted that he had been successful in that endeavour. The statements made by the Reviewer were not misleading because, first, if she had accepted the credibility of the applicant’s claims, there would, as she stated, have been an issue of whether a Convention nexus existed. Secondly, the Reviewer’s statements do not, in my view, constitute a representation that the applicant’s credibility was not in issue. Thirdly, it is not apparent that the applicant was dissuaded from putting anything further to the Reviewer in support of his credibility.
35. I find that the applicant has failed to established the error asserted in Ground 1.

Ground 2

36. I accept from the report of Mr Borenstein that the applicant suffers from post-traumatic stress disorder (PTSD) and that his condition has worsened over time. I further accept that the applicant suffers a severe depressive disorder. Mr Borenstein expresses the opinion that the applicant’s condition interfered with his ability to function at the hearing conducted by the Reviewer. He further expresses the opinion that the Reviewer should have obtained an updated mental health report prior to conducting the hearing. I make the following observations bearing upon Mr Borenstein’s opinion:
    1. the STARTTS report was received by the Reviewer only three days before the hearing and was obtained for a purpose only incidentally related to the review;
    2. the report was nevertheless taken into account by the Reviewer;
    100. although Mr Borenstein was provided with a copy of the transcript of the hearing, his opinion as to the applicant’s capacity to participate effectively was generally expressed and not supported by particular references to the transcript;
    4. while the Court may be assisted by expert medical opinion on the capacity of an applicant to participate in a review process, the question of whether an applicant is prevented from participating in a review effectively or at all is ultimately a question for the Court; and
    5. Mr Borenstein’s opinion was not tested by cross-examination.
37. In my view, the decision of Smith FM in SZIWY v Minister for Immigration & Anor [2007] FMCA 1641 is incompatible with the decision of the Full Federal Court in Minister for Immigration v SZNVW. I am bound by the decision of the Full Federal Court in relation to the requirements of s.425 of the Migration Act.
38. However, s.425 of the Migration Act has no application in the present case. The procedural code which binds the Refugee Review Tribunal does not apply to a Reviewer in respect to a review conducted in relation to the claims of an offshore entry person. The issue of procedural fairness raised by the applicant must be answered not by reference to the procedural code in the Migration Act but by reference to the general law.
39. In SGLB the High Court said relevantly:
    1. the Migration Act does not impose any competence requirement on applicants[8];
    2. in a particular case the requirements of procedural fairness may require some special steps or procedure to be followed in order to accommodate an applicant with a disability;
    100. there is no duty to inquire under s.427 of the Migration Act[9] and no duty under the general law where the Tribunal already has before it reliable evidence of the mental health of an applicant[10]; and
    4. the relevant question is not whether the applicant may have been able to give a better account of himself if some different procedure had been followed but, rather, it is whether the applicant was able to give evidence or take part in the proceedings.
40. Gleeson CJ in that case said at [19]:
    • Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the Tribunal, apprehending that the respondent might be disadvantaged by "memory or other difficulties", of its own motion, and with the respondent's agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The Tribunal was not then obliged to embark upon an open-ended investigation of the respondent's psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage. It was not suggested in the letter of 30 July that anything the respondent said at the hearing of 26 June, or in his later affidavit, was unreliable. Two things were suggested. The first was that, if the respondent was suffering from PTSD, that would explain the inconsistencies in his earlier information. The Tribunal was willing to accept that, and not hold those inconsistencies against him. The second, which was rejected, and is not now pursued, is that a further assessment might have provided evidence that he had in fact been seriously harmed before he came to Australia.
41. In the present case, as in SGLB, the Reviewer was in a position, by reference to the STARTTS assessment and her own observations of the applicant at the hearing, to determine whether the applicant was able to participate in the hearing. The transcript is powerful evidence that the applicant was able to participate without any apparent difficulty. The Reviewer took into account her understanding of the applicant’s condition in making her adverse credibility findings. In the circumstances of this matter, I am not persuaded either that the Reviewer was under an obligation to obtain a further medical opinion before making her adverse credibility findings or that the adverse credibility findings made by the Reviewer were not open to her on the material before her. I find that there was no procedural unfairness in the findings made by the Reviewer and that the second ground of review is not established.
42. I find that the decision of the Reviewer is free from jurisdictional error. Accordingly, I order that the application be dismissed.
43. I will hear the parties as to costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 31 January 2012

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[1] an armed group apparently supported from Iran
[2] Relevant Documents (RD) 200-201 at [62]-[63]
[3] RD 131
[4] SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609
[5] SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592
[6] [2010] HCA 41; (2010) 272 ALR 14
[7] The transcript incorrectly attributes the statement to the applicant
[8] at [45]
[9] at [124]. See also Minister for Immigration v SZIAI (2009) 259 ALR 249 at [25]
[10] at [123]. See also Minister for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273