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Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 (31 January 2011)
Last Updated: 4 February 2011
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship
v MZYHS [2011] FCA 53
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Citation:
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Minister for Immigration and Citizenship v MZYHS [2011] FCA 53
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Appeal from:
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Parties:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP v
MZYHS and REFUGEE REVIEW TRIBUNAL
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File number:
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VID 558 of 2010
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Judge:
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KENNY J
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Date of judgment:
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Catchwords:
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MIGRATION – appeal from decision of
Federal Magistrate upholding an application for review of decision of Refugee
Review Tribunal –
whether Refugee Review Tribunal failed to take into
account a relevant consideration – whether decision affected by
jurisdictional
error – whether psychologist’s report is
corroborative evidence of claim to be a refugee – whether failure to
consider
report as corroborative amounts to jurisdictional error – whether
Refugee Review Tribunal misunderstood the purpose of psychologist’s
report
– making findings on credibility is the function of the decision-maker
– it is a matter for the Tribunal to determine
the weight to be given to a
psychologist’s report – no jurisdictional error – appeal
allowed
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Legislation:
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Cases cited:
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Date of last submissions:
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6 December 2010
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Place:
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Melbourne
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Division:
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GENERAL DIVISION
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Category:
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Catchwords
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Number of paragraphs:
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Counsel for the Appellant: |
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Solicitor for the Appellant and Second Respondent
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Australian Government Solicitor
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Counsel for the First Respondent:
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Mr J Gibson
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Solicitor for the First Respondent:
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Victoria Legal Aid
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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ON APPEAL FROM THE
FEDERAL MAGISTRATES COURT OF AUSTRALIA
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MINISTER FOR IMMIGRATION AND
CITIZENSHIPAppellant
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AND:
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REFUGEE REVIEW TRIBUNAL
Second respondent
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
- The
appeal be allowed.
- The
orders made by the Federal Magistrates Court on 23 June 2010 be set aside and,
in lieu thereof, order:
(a) the application for judicial review be
dismissed;
(b) the first respondent pay the appellant’s costs of the proceeding in
the Federal Magistrates Court.
- The
first respondent pay the appellant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of
the Federal Court Rules.
The text of entered orders can be located using
Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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GENERAL DIVISION
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VID 558 of 2010
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
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AND:
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MZYHS
First respondent
REFUGEE REVIEW TRIBUNAL
Second respondent
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JUDGE:
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KENNY J
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DATE:
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31 JANUARY 2011
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
- This
is an appeal by the Minister for Immigration and Citizenship (‘the
Minister’) from a judgment of the Federal Magistrates
Court delivered on
23 June 2010, upholding an application for judicial review of a decision of the
Refugee Review Tribunal (‘the
Tribunal’). Amongst other things,
the learned Federal Magistrate ordered that: (1) a writ of certiorari issue to
the Tribunal
quashing its decision of 6 January 2010; and (2) a writ of mandamus
issue to the Tribunal requiring the Tribunal to determine the
application for
review according to law.
- For
the reasons stated, I would allow the appeal.
BACKGROUND
- The
Tribunal found that the first respondent was a citizen of Bahrain, who entered
Australia on 9 May 2007. The first respondent
lodged an application with the
appellant’s Department for a protection visa on 20 June 2007, claiming
that he would be persecuted
for reasons of his political opinion and religion if
he returned to Bahrain. The first respondent claimed to be a Shiite Muslim,
with a history of political activism in Bahrain and consequential punishment,
including detention, by the authorities in that country.
- In
a statutory declaration accompanying his protection visa application, the first
respondent made a number of claims, including
that: (1) he was detained
“for about 14 months, from June 1996 to August 1997” following his
participation in a peaceful
demonstration for the release of detainees; (2)
during this detention, he was tortured and “subjected to humiliation and
inhumane
treatment” and, as a result, continued to suffer psychologically
and physically after his release; (3) after his release, he
was “under
constant surveillance by authorities” and was terrorised by authorities
coming to his house at night; (4)
he had difficulty in obtaining employment on
account of his political detention and on account of being a Shiite Muslim; (5)
he was
arrested and detained in 2002 for his participation in a demonstration;
(6) as a result of this political detention, he was “effectively
banned
from accessing employment through the employment ministry so it became even
harder to look for work”; (7) since 2002,
he had been actively involved in
protesting against his situation and that of others in Bahrain; (8) he obtained
a visa to visit
Australia in 2006 because he was “worried that [his]
situation might become dangerous”; (9) he was involved in a demonstration
against detention and torture in April 2007, as a consequence of which he was
arrested and beaten; (10) friends subsequently took
him to hospital and his
father advised him that he was wanted by the authorities; (11) an uncle arranged
for him to leave Bahrain;
and (12) he continues to suffer from “nightmares
and flashbacks” and fears for his family and that, if returned to Bahrain,
he would be arrested, harmed or killed.
- In
addition to Convention-based claims that the first respondent faced a real
chance of persecution on political and religious grounds,
in a letter from the
Refugee & Immigration Legal Centre Inc dated 29 April 2009, a further claim
was made on the first respondent’s
behalf that he faced persecution on the
basis of “his membership of the [social] group ‘survivors of torture
in Bahrain’”.
- On
17 September 2007, a delegate of the Minister refused to grant the first
respondent a protection visa. The Tribunal affirmed
the delegate’s
decision on 22 April 2008. On 12 August 2008, a Federal Magistrate ordered that
writs of certiorari, prohibition
and mandamus issue to the Tribunal, amongst
other things, quashing its decision and requiring it to re-determine the first
respondent’s
review application according to law.
- The
Tribunal, differently constituted, conducted another hearing on 15 April and 9
October 2009, at which the first respondent was
represented by his registered
migration agent. The first respondent and another person gave evidence. The
first respondent presented
various documents in support of his refugee claim,
including the following reports from psychologists or social workers: (1) a
report
of Ms Angela Dosseter, New Service for the Treatment and Rehabilitation
of Torture and Trauma Survivors, dated 2 August 2007; (2)
a report of Mr Hend
Saab, Hurstville Psychology & Therapy Centre, dated 27 August 2007; (3) a
report of Mr Rui Santos, Foundation
House, dated 23 April 2009; and (4) a report
of Ms Andrea Stewart, Co-ordinator, North West Generalist Team, Foundation
House, dated
6 October 2009 (‘the Stewart Report’). The Stewart
Report is central to this appeal.
- By
a letter dated 6 January 2010, the Tribunal informed the first respondent that
it affirmed the original decision of the Ministerial
delegate to refuse to grant
him a protection visa. The first respondent applied to the Federal Magistrates
Court for judicial review
of the Tribunal’s January 2010 decision on 1
February 2010. In April 2010, the Federal Magistrates Court ordered that writs
of certiorari and mandamus issue to the Tribunal quashing the decision of the
Tribunal and requiring the Tribunal to determine the
first respondent’s
review application according to law. The Minister appealed against the judgment
of the Federal Magistrates
Court on 14 July 2010. I am concerned with that
appeal.
THE APPEAL
- At
the hearing of the appeal, the appellant appeared by counsel, who relied on
written submissions dated 17 November 2010, as well
as on oral submissions. The
first respondent was also represented by counsel, who relied on oral
submissions, as well as written
submissions dated 23 November 2010. The
Tribunal entered an appearance, without advancing argument.
- Also,
in accordance with orders made at the hearing on 25 November 2010, the first
respondent filed a notice of contention and additional
submissions dated 1
December 2010. The Minister filed supplementary submissions dated 6 December
2010.
- In
particulars in the notice of appeal, the Minister set out the principal argument
for the appeal. The notice of appeal relevantly
stated:
His Honour erred in holding that:
- The
Second Respondent (the “Tribunal”) failed to take into account a
relevant consideration; and
- As
a result, the Tribunal’s decision handed down on 6 January 2010 (the
“Tribunal’s decision”) was affected
by jurisdictional
error.
Particulars
There was evidence before the Tribunal relating to the First Respondent’s
psychological condition. This evidence included
a report of Ms Andrea Stewart,
Foundation House, dated 6 October 2009. In her report, Ms Stewart stated, among
other things, that
the First Respondent “exhibits a cluster of severe
trauma and depressive symptoms that have reportedly persisted without remittance
since his experience of torture and trauma and forced separation from his family
in 2007”. Her report also contained a recital
of the First
Respondent’s claims of past persecution in
Bahrain.
In its decision, the Tribunal referred to the evidence about the First
Respondent’s psychological condition, including the
report of Ms Stewart.
However, the Tribunal found that the First Respondent was not a credible
witness. On the basis of its adverse
credibility finding, it rejected the First
Respondent’s claims of past persecution.
At first instance, Burchardt FM found at [9] that “the report from Ms
Stewart would on any view be reasonably interpreted as
saying, at the very
least, that the mental state exhibited by the applicant [the First Respondent]
was consistent with post-traumatic
stress disorder consistent with the treatment
he alleges”.
His Honour held that, in its decision, the Tribunal did not deal with any
consistency between the First Respondent’s psychological
condition and his
claims of past persecution: [26] to [28]. His Honour held that, in doing so,
the Tribunal failed to take into
account a relevant consideration and this
failure amounted to jurisdictional error affecting the Tribunal’s
decision.
His Honour was incorrect to reach these conclusions. Firstly, the Tribunal took
into account the evidence about the First Respondent’s
psychological
condition, including the report of Ms Stewart. Secondly, a fair reading of the
Tribunal’s reasons for its decision
shows that it was aware of any
purported corroborative effect of this evidence. Thirdly, a fair reading of the
Tribunal’s
reasons shows that it gave this evidence less weight as a
result of its adverse credibility finding in respect of the First Respondent.
Fourthly, and in any event, it was a matter for the Tribunal to determine what
weight it would give to this evidence. Fifthly,
and in any event, a failure by
the Tribunal to consider expressly in its decision any purported corroborative
effect of this evidence
could not amount to a failure to address the First
Respondent’s claims to be a refugee or the component integers of those
claims.
It could not constitute a failure to take account a relevant
consideration which, in turn, gave rise to jurisdictional error affecting
the
Tribunal’s decision.
- This
appeal concerns the nature and scope of the Tribunal’s obligations with
respect to psychologists’ reports, especially
the Stewart report. The
central questions are whether the Tribunal was bound to consider the report as
corroborative of the first
respondent’s claim to be a refugee; and whether
there was jurisdictional error in the event the Tribunal failed to do so, or
in
the event the Tribunal gave the report little or no
weight.
THE TRIBUNAL’S DECISION
- In
its reasons, under the heading “Claims and Evidence”, the Tribunal
set forth the first respondent’s claims and
evidence, both as understood
by the Tribunal as previously constituted and as understood by it. The Tribunal
specifically referred
to reports about the first respondent’s
psychological condition, including the Stewart report.
- The
Tribunal stated that it had “weighed all the evidence anew” and
found that, on balance, “major concerns in
the applicant’s story
remain”. These concerns led the Tribunal to find that the first respondent
was not a credible witness.
- The
Tribunal accepted that the first respondent may have taken part in
demonstrations in Bahrain, but the Tribunal did not accept
that he was detained
and mistreated, either in 1996 or in 2002. The Tribunal did not accept the first
respondent’s claim that
he was beaten and hospitalized following a
demonstration in April 2007.
- The
Tribunal considered the fact that the first respondent did not leave Bahrain for
nearly a year after being granted a visa to
Australia was incompatible with
evidence that the first respondent was living in fear of persecution. The
Tribunal did not accept
that the first respondent had been “tortured,
raped and in general mistreated in detention”.
- The
Tribunal concluded that there was no real chance that the first respondent would
face persecution in future in Bahrain for a
reason set out in the Refugees
Convention as amended by the Protocol, and affirmed the delegate’s
original decision to refuse
him a protection visa.
- In
the course of setting out its findings with respect to the first
respondent’s claims, the Tribunal
stated:
The Tribunal has considered the various reports from psychologists about the
applicant’s mental health. While the Tribunal
respects the opinions of
the psychologists and has taken them into account, their assessment has not
extended to pronouncements that
the applicant has ever been unfit to give
evidence to the Tribunal. The format of these reports follows the usual pattern
of recording
the applicant’s version of events and this version of events
is subject to scrutiny by the Tribunal.
That is, the Tribunal considered that, in so far as the psychologists’
reports (including the Stewart report) recorded the first
respondent’s
version of events (including that he was a torture victim), they were subject to
the Tribunal’s independent
examination and assessment.
THE FEDERAL MAGISTRATE’S DECISION
- In
his judicial review application in the Federal Magistrates Court, the first
respondent asserted various bases for imputing jurisdictional
error to the
Tribunal. The Federal Magistrate accepted only one of them – concerning
the Stewart report. Under the heading
of “particulars”, the first
respondent had asserted that the Tribunal:
... misunderstood the basis and the purpose for which the Psychologist’s
Report was produced – which was as evidence
of the manner in which the
Applicant presented (as someone who had experienced torture) – and dealt
with the evidence and claims
therein so misunderstood by taking the report into
account only on the question of the Applicant’s capacity or fitness to
give
evidence to the Tribunal.
It failed to take account of a relevant consideration or relevant material being
the Psychologist’s Report which tended to
corroborate the
Applicant’s account of past persecution and/or failed to take it into
account in any meaningful sense.
It failed to give genuine or real consideration to the report and its
contents.
In circumstances where the “well was not poisoned beyond redemption”
it failed to pay due regard to corroborative evidence
provided by the
Psychologist’s Report of incarceration and torture experienced by the
Applicant in the past. It made a finding
of lack of credibility without more
based on “incongruence” between certain matters leading to rejection
of incarceration
in 1996 and 2002 before it began to consider the Report.
The Federal Magistrate rejected the first respondent’s other grounds of
challenge and, in so far as they were not the subject
of the appeal, they may be
put to one side.
- The
Federal Magistrate accepted the first respondent’s submission that the
Tribunal had not considered, as it was bound to
do, that the Stewart report was
evidence “which tended to corroborate the [first respondent’s]
account of past persecution”.
His Honour agreed with the first respondent
that “the Tribunal appears to have misunderstood what the evidence was
designed
to achieve”: see MZYHS v Minister for Immigration [2010]
FMCA 417 at [20]. His Honour said (at
[25]-[28]):
In my view, the finding that the account given by Ms Stewart of the facts
followed the recitation given to her by the applicant,
while true, does not deal
with the basis upon which the evidence was put forward.
The Tribunal being seized of the fact (or at least as it should have been) that
the applicant [first respondent] was saying that
his mental state now gives
probative force to his assertions of the historical events he asserted is simply
not dealt with by the
Tribunal in its decision.
Given that the evidence of Ms Stewart was uncontradicted expert evidence, this
was a matter that the Tribunal, being seized of, should
have dealt
with.
In my view, the failure to address this relevant consideration and relevant
evidence falls squarely within the ambit of jurisdictional
error.
In other words, the Federal Magistrate held that the Tribunal had
misunderstood the significance of the Stewart report and, in so
doing, had
failed to take into account a consideration that it was bound to take into
account. Hence, his Honour made a finding
of jurisdictional error.
THE PARTIES’ SUBMISSIONS
- The
Minister argued that there was no jurisdictional error made by the Tribunal with
respect to the Stewart report; and the Federal
Magistrate erred in reaching a
contrary conclusion.
- The
first respondent sought to maintain the judgment of the Federal Magistrate on
the basis that his Honour’s reasons were
correct, and on a further basis
mentioned below.
CONSIDERATION
- The
basic principles as to when jurisdictional error will arise for failure to
consider a relevant consideration are well-accepted.
Jurisdictional error may
be shown where a statutory decision-maker disregards a relevant consideration,
in the sense discussed in
Minister for Aboriginal Affairs v Peko-Wallsend
Ltd [1986] HCA 40; (1986) 162 CLR 24 (‘Peko-Wallsend’): see Minister
for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
(‘Yusuf’) at 351 [82], citing Craig v South Australia
[1995] HCA 58; (1995) 184 CLR 163 at 179. That is, the ground of failure to take into account
a relevant consideration is only made out if the decision-maker failed
to take
into account a consideration that the decision-maker was bound to take into
account in making the decision: Peko-Wallsend at 39-41. Governing
legislation may expressly state all these considerations, although often it does
not. In this latter case, relevant
considerations in this limited sense are to
be determined by reference to the subject-matter, scope and purpose of the
governing
legislation, which, in the current context, includes the Migration
Act 1958 (Cth) and the Migration Regulations 1994 (Cth): see, e.g.,
Yusuf at 347-8 [73] (McHugh, Gummow and Hayne JJ), citing Abebe v
Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 579 [195]. Their Honours went on to say
in Yusuf (at 348 [74]):
What is important ... is that the grounds of judicial review that fasten upon
the use made of relevant and irrelevant considerations
are concerned essentially
with whether the decision-maker has properly applied the law. They are not
grounds that are centrally
concerned with the process of making the particular
findings of fact upon which the decision-maker
acts.
- Referring
to Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194
ALR 244 (‘Htun’) at 259 [42], the Minister accepted that,
having regard to the statutory framework governing applications for protection
visas,
an applicant’s claim to be a refugee and the integers of that claim
are considerations that a decision-maker is bound to take
into account. See
also Applicant WAEE v Minister for Immigration and Multicultural and
Indigenous Affairs (2003) 75 ALD 630 (‘WAEE’) at 641
[46]; and NABE v Minister of Immigration and Multicultural and Indigenous
Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (‘NABE’) at 20 [63]. The
Minister drew a distinction between a failure to consider an integer of a claim
to be a refugee (or a contention
that, if accepted, might establish a
well-founded fear of persecution) and a failure to take into account evidence
that, if accepted,
might have led to a different finding of fact. As the
Minister submitted, and I accept, a failure to refer to, or adequately to
consider, evidence, whether or not it might be thought probative, does not give
rise to jurisdictional error, even though it may
have led to an erroneous
finding of fact. The authorities for this proposition are numerous: see, for
example, Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD
303 at 308-9 at [21]-[28] (North and Lander JJ, with whom Katzmann J agreed (see
at [35])); Htun at 259 [42] (Allsop J, with whom Spender J agreed);
WAEE at 641 [46]; and Paul v Minister for Immigration and
Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 423 [79] (Allsop J, with whom
Heerey J agreed). Related propositions are that the weight to be given evidence
is a matter for the decision-maker
and that a wrong finding of fact does not of
itself give rise to jurisdictional error. Furthermore, making findings on
credibility
is the function of the decision-maker; and they are not ordinarily
open to challenge in a court on a judicial review application:
NADR v
Minister for Immigration and Multicultural and Indigenous Affairs [2003]
FCAFC 167 at [9]; Re Minister for Immigration and Multicultural Affairs; ex
parte Durairajasingham (2000) 58 ALD 609 at 624-5 [64]-[67] (McHugh J);
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 560 [137] (Gummow and Hayne
JJ); and Enfield City v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR
135 at 153-4 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
- In
the proceeding in the Federal Magistrates Court, the first respondent argued
that the Tribunal had failed to take into account
the Stewart report. The
Tribunal’s statement of reasons shows that this is incorrect. The Tribunal
plainly had regard to the
psychologists’ reports, including the Stewart
report: see [18] above.
- On
this appeal, the first respondent accepted the Federal Magistrate’s
characterization of the Stewart report as evidence “to
show that his
mental state was consistent with his claims of past abuse”: see [20]
above. In written submission, the first
respondent contended that the Stewart
report was presented to the Tribunal on a “quite specific basis”,
namely:
The [r]eport provides an assessment of the manner in which the Applicant
presented in his sessions with the Psychologist –
i.e. as someone who has
experienced torture.
Thus, the first
respondent’s primary argument was that the relevance of the Stewart report
was not confined to the issue of
his fitness to give evidence, but corroborated
his account of past persecutory events. That is, the report was, so the first
respondent
said, relevant to show that his psychological condition was
consistent with his account of what had happened to him in Bahrain.
Referring
particularly to the passage from the Tribunal’s reasons set out at [18]
above, the first respondent contended that
the Tribunal considered the Stewart
report only in relation to the issue of fitness to plead and had thereby
overlooked the primary
purpose for which the Stewart report was presented to it.
In this context, at the hearing of the appeal, counsel also drew a distinction
between corroborative evidence in the nature of expert opinion and non-expert
corroborative evidence.
- Further,
at the hearing of the appeal, referring to NABE at 20 [63], SZKHD v
Minister for Immigration and Citizenship [2008] FCA 112
(“SZKHD”), and Illankovan v Minister for Immigration and
Multicultural and Indigenous Affairs [2005] FCA 220
(‘Illankovan’), counsel for the first respondent
developed two further submissions with respect to the issue of the Stewart
report, arguing, first,
that the report was not simply corroborative (or
consistent with) the first respondent’s account of past events, but was
evidence
of his psychological presentation, to which the Tribunal had failed to
advert. Thus, the first respondent submitted that the Stewart
report was
evidence that he presented as someone with a history of torture and trauma; and,
for this reason, the authorities relied
on by the appellant were
distinguishable. Secondly, the Stewart report was, so the first
respondent’s counsel submitted, more
than merely corroborative of the
first respondent’s claims, it was itself an integer of the claims being
made.
- 1
would reject the first respondent’s submissions for the reasons stated
below.
- First,
I would reject the first respondent’s submission that such evidence of his
psychological presentation as is contained
in the Stewart report can be regarded
as an integer of the first respondent’s claims. Accepting that the
Stewart report was
relevant to evidencing the first respondent’s
psychological condition, this condition was relevant either as to fitness to
give evidence or as corroborative of the first respondent’s claims to have
suffered torture and trauma at the hands of the
authorities in Bahrain on
account of his political opinion and activities, and religion. The focus in
this appeal was on this latter
aspect, since this was the focus of the Federal
Magistrate’s reasons for judgment. From this perspective, the Stewart
report
was a piece of evidence with a purely corroborative function. It did not
give rise to a new claim.
- Secondly,
I am not persuaded that the Tribunal failed to consider the corroborative effect
of the Stewart report. Whilst not absolutely
clear, the better view is that the
Tribunal recognized that the psychological reports, including the Stewart
report, were prepared
on the basis that their authors accepted the first
respondent’s account of what had happened to him in Bahrain and that his
psychological condition was consistent with his account. I do not consider that
the first respondent’s argument that the report
evidenced his
psychological presentation added anything to this analysis. As already noted,
evidence as to the first respondent’s
psychological presentation was
relevant either as to his fitness to give evidence or as corroborative of the
first respondent’s
account. This evidence did not have any further
relevance. The question of capacity did not arise; and, from the
Tribunal’s
perspective, the corroborative effect of the psychological
reports about the first respondent’s condition was dubious once
the
Tribunal was minded to conclude, as it did for separate reasons, that it should
reject the first respondent’s account in
material respects.
- In
substance, the Tribunal rejected the first respondent’s claims because of
its “major concerns” with the first
respondent’s account,
which led the Tribunal to conclude that the first respondent was not a credible
witness. Although I
have not set out these concerns in these reasons, the
Tribunal in fact explained them in some detail. In this circumstance, it was
open to the Tribunal to determine that, in so far as the Stewart report and the
other psychological reports tended to corroborate
the first respondent’s
account, they were to be accorded little, if any, weight. Put another way, it
was for the Tribunal
to determine the weight to be given an expert
psychologist’s opinion, having regard to the other evidence before it that
supported
or undermined the supposed facts on which the opinion was said to be
based: see Cong Tam Dang v Minister for Immigration & Multicultural
Affairs [2000] FCA 73; (2000) 61 ALD 29 at 47- 48; [2000] FCA 73 at [83]- [87]
(Drummond, Matthews and Mansfield JJ). In this case, the corroborative effect
of the evidence constituted by the Stewart report
(and the other psychological
reports) was significantly diminished by the Tribunal’s “major
concerns” about the
first respondent’s account and, most
particularly, its adverse finding about the first respondent’s
credibility. Such
an approach does not disclose jurisdictional error: compare
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at
491- 492 [35]-[40] (North and Lander JJ); and Re Minister for Immigration and
Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 63
[12] (Gleeson CJ) and 70 [49] (McHugh and Gummow JJ).
- In
any case, even if the Tribunal had failed to take into account that the first
respondent’s claims of past persecution were
consistent with the
psychological condition set out in the Stewart report, there would have been no
jurisdictional error. This failure
would not amount to a failure to take into
account a consideration that the Tribunal was bound to take into account.
Rather, it
would constitute a failure to address a piece of evidence before the
Tribunal. As North and Lander JJ said in SZNPG at 309 [28] and [29]:
[A]n error of fact based on a misunderstanding of evidence or even overlooking
an item of evidence in considering an applicant’s
claims is not
jurisdictional error, so long as the error, whichever it be, does not mean that
the RRT has not considered the applicant’s
claim.
In our opinion, the RRT did not fall into jurisdictional error in this case. It
weighed a particular piece of evidence against other
evidence, but was not
persuaded by that particular piece of evidence enough to alleviate its concerns
in relation to the whole of
the first respondent’s evidence.
(Citations omitted)
- The
same approach had generally been adopted on other occasions where a failure to
consider an expert psychologist’s report
has been alleged. For instance,
in Subramaniam v Minister for Immigration and Multicultural Affairs
[2002] FCAFC 255, a Full Court (constituted by Drummond, Cooper and
Finkelstein JJ) considered whether an almost identical failure on the
Tribunal’s
part in that case amounted to reviewable error and concluded
that it did not. See also Thirukkumar v Minister for Immigration and
Multicultural Affairs [2002] FCAFC 268; VMAJ v Minister for Immigration
and Multicultural and Indigenous Affairs [2005] FCAFC 21 at [27]- [29]; VGAP
v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1607 at [34]; and Rezaei v Minister for Immigration and
Multicultural and Indigenous Affairs [2001] FCA 1294 at [57].
- In
this context, I note that the first respondent relied on SZKHD v Minister for
Immigration and Citizenship [2008] FCA 112. I am inclined, however, to
consider that SZKHD turned very much on matters peculiar to it; and, in
any event, stands outside the general run of authorities. It is relevant to
note that, in SZKHD in contrast to this case, the Tribunal stated that it
did not “question the conclusions of the applicant’s mental health
issues and [did] not question the conclusions of the treating
psychologist”, although it went on to reject the claims that
were
contained in the report: see SZKHD at [10]. In the current case, the
Tribunal never accepted the conclusions of the Stewart report about the cause of
the first respondent’s
psychological condition.
- Further,
I consider that the first respondent’s reliance on Illankovan was
misplaced. That case is clearly distinguishable from the present case. First,
Illankovan concerned a Special Eligibility (Residence) (Class AO) visa,
for which the Migration Regulations stipulated certain eligibility criteria.
The Minister conceded that, if his Honour decided (as his Honour ultimately did)
that the
Tribunal had overlooked a particular report dealing with one criterion,
then there was a constructive failure to exercise jurisdiction.
This was
presumably because it might reasonably be inferred that the Tribunal had failed
to consider a statutorily-mandated criterion:
see Illankovan at [55].
There was no failure to consider a statutorily-mandated criterion in this case.
NOTICE OF CONTENTION
- At
the hearing of the appeal, the first respondent was given leave to file and
serve a notice of contention in order to support the
judgment of the Federal
Magistrate on a ground other than that relied on by the Federal Magistrate. The
ground as stated in this
notice of contention
was:
In relation to the basis and the purpose for which the Psychologist’s
Report was produced (which was as evidence of the manner
in which the Applicant
presented as someone who had experienced torture) and in its approach to the
Report whose assessment of the
Applicant’s mental state tended to
corroborate the Applicant’s account of past persecution, the Tribunal
filed to give
proper, genuine and realistic consideration to the merits of the
case.
- The
notice of contention was designed to support an argument that, by
misunderstanding the purpose of the first respondent’s
reliance on the
Stewart report, the Tribunal failed to give proper, genuine and realistic
consideration to the first respondent’s
claims. That is, the claimed
failure on the Tribunal’s part to consider the report as evidence that the
first respondent was
a torture survivor meant, so the first respondent said,
that the Tribunal had committed jurisdictional error of the kind found by
Rares
J in SZJSS v Minister for Immigration and Citizenship [2009] FCA 1577; (2009) 113 ALD 270
(‘SZJSS’).
- In
SZJSS Rares J held (at 280 [43]) that the Tribunal’s statement that
it gave “no weight” to letters corroborating the appellants’
claims in the circumstances of that case was inconsistent with “any
rational, reasonable approach to the evaluation of that
evidence”; and,
because of this, his Honour concluded that the Tribunal “was not genuinely
considering the appellants’
claims as corroborated by the letters on the
material before it”. His Honour explained (at 280-1 [43]) that:
[The Tribunal] used the formula of giving material “no weight” as a
basis on which it might ignore probative, relevant
and highly supportive
material corroborating the factual basis of the fears which the husband claimed.
It did this simply as a basis
for putting the evidence to one side, having said
that it had looked at it. In Telstra Corporation Limited v Australian
Competition and Consumer Commission [2008] FCA 1758; (2008) 176 FCR 153 at 1818-182
[106]- [107] (approved in Telstra Corporation Ltd v Australian Competition
Tribunal [2009] FCAFC 23; (2009) 175 FCR 201 at 24 [242 [267] per Jacobson, Lander and Foster
JJ and Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
at [47] per Lingren, Foster JJ and myself) I said:
A decision-maker must give proper, genuine and realistic consideration to the
merits of the case: Khan v Minister for Immigration and Ethnic Affairs
[1987] FCA 457; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury
City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected
the authorities; Minister for Immigration and Multicultural Affairs
v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v
Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147
FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v
Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA
724 at [39], [60] where I applied this principle. In Tickner v Chapman
(1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was
required to consider material, the process of consideration “... involves
an active intellectual process” directed at the nominated subject-matter:
see too per Burchett J at 476F-477E, per Kiefel
J at 495F-G and Tobacco
Institute of Australia v National Health & Medical Research Council
(1996) 71 FCR 265 at 277G per Finn J; Australian Retailers
Association 148 FCR at 577 [526] per Weinberg
J.
Where a decision-maker must consider matters prescribed by law, generally, he or
she cannot jettison or ignore some of those factors
or give them cursory
consideration only in order to put them to one side: East Australian
Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44; (2007)
233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ. As
Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233
CLR at 256 [102]):
It was not enough for the ACCC to say in its final determination that it had
considered those matters in the sense of having looked
at but discarded
them.
- In
SZJSS Rares J acknowledged (at 281 [44]) that the use of the
“proper, genuine and realistic consideration” formula had been
criticized upon the basis that it tended to turn judicial review of
administrative decision-making into second-guessing the merits
of an
administrative decision. In his Honour’s view, however, the formula was
an expression of the legitimate power of the
court to “consider the way in
which an administrative decision-maker has used its powers to evaluate
evidence”.
- In
supplementary submissions, the Minister noted that SZJSS was the subject
of a High Court appeal and was “plainly wrong and should not be
followed”. The Minister also argued,
and I accept, that the first
respondent’s use of the “proper, genuine and realistic
consideration” formula encompassed
the same relevant consideration
argument, which I have already considered and rejected. The use of the formula
as merely another
label to cover existing grounds of review without constituting
a separate ground was noted by Basten JA (with whom Allsop P agreed)
in Swift
v SAS Trustee Corporation [2010] NSWCA 182 (‘Swift’) at
[47].
- In
any case, a unanimous judgment of the High Court of Australia in Minister for
Immigration and Citizenship v SZJSS [2010] HCA 48 overturned the judgment of
Rares J in this Court. The High Court held that the Tribunal’s failure to
accord weight to three
letters that the visa applicants had produced in support
of their visa application could not be characterised as a jurisdictional
error.
Essentially, the High Court characterised this Court’s decision as a
review of the factual findings of the Tribunal
and as therefore being in error.
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ agreed with Basten
JA in Swift that the epithets “proper, genuine and realistic
consideration” “[t]aken out of context and without understanding
their
original provenance ... are apt to encourage a slide into impermissible
merit review”.
- Their
Honours went on to observe (at [32]-[37]) that:
The Minister contended that the weight to be accorded to the letters, and the
factual matters to which they gave rise, were entirely
matters for the Tribunal
as they concerned the merits of the application. It was submitted that the
Federal Court employed the language
of “proper, genuine and realistic
consideration” to register the Court's response to a weighing of the
evidence with
which the Court disagreed. This, it was said, does not amount to
jurisdictional error of the kind discussed by this Court in Minister for
Immigration and Citizenship v SZMDS [(2010) 240 CLR 611].
The Minister's submissions on the letters issue must be accepted as on a fair
reading of the whole of the Tribunal's decision, when
the Tribunal said that it
gave the letters “no weight” it was referring to the fact that it
did not accept the letters
as evidencing that the first respondent was in some
danger from the Maoists in Kathmandu. This was in large part because of social
and political changes which had occurred since the letters were written. The
evidence given by the first respondent, including his
evidence about the effect
of those changes, undermined his claim of political and social activism, thereby
contradicting the support
which the letters gave to his assertion that Maoists
were continuing to pursue him in Kathmandu. The weighing of various pieces of
evidence is a matter for the Tribunal.
It has been recognised that to describe reasoning as irrational or unreasonable
may merely be an emphatic way of disagreeing with
it. In referring to “any
rational, reasonable approach to the evaluation” and the need for “a
proper, genuine or
realistic evaluation” of the letters, the Federal Court
was registering emphatic disagreement with the Tribunal's assessment
of the
factual matters to which the letters were relevant. It appears the Federal Court
would have weighed the letters differently
which seems to suggest that, on the
basis of the letters, the Federal Court would have been satisfied that Maoists
were pursuing
the first respondent in Kathmandu. When employing the formula
“proper, genuine and realistic evaluation” in respect of
the
letters, the Federal Court did not appear to consider that one of the matters
against which the Tribunal weighed the letters
was the first respondent's
evidence of the effects of social and political changes in Nepal.
Whether the letters were “highly supportive”" or “powerfully
corroborative” (as they appeared to the Federal
Court) of the first
respondent's claim that Maoists were pursuing him in Kathmandu was a question
upon which reasonable minds might
come to different conclusions. The Tribunal's
preference for other evidence, including the first respondent's own evidence
about
numerous matters, including the effect of social and political changes
from, and since, 2006, over the evidence of the letters written
during the first
half of 2006, could not be said to constitute a failure to take into account a
relevant consideration as canvassed
in PekoWallsend or Yusuf's
case. Nor could it be said to be a failure to respond to a substantial argument
thereby giving rise to the kind of error identified
in Dranichnikov v
Minister for Immigration and Multicultural Affairs [(2003) 77 ALJR 1088; 197
ALR 389].
The conclusion that the Tribunal erred in giving “no weight” to the
letters, with the implication that it should have
given different, presumably
determinative, weight to them, depended on the Federal Court reviewing the
factual findings of the Tribunal
rather than the process by which it arrived at
its conclusions.
Further, the Federal Court's conclusion that the Tribunal erred in this way did
not, in the light of the whole of the evidence, require
the further conclusion
that the result in the Tribunal was manifestly irrational or unreasonable. Nor
did it support a finding of
any other failure which might be characterised as
jurisdictional error.
- Here,
in so far as the first respondent’s “proper, genuine and realistic
consideration” argument invited a second-guessing
of the merits of the
Tribunal’s decision, it must be rejected on the basis that judicial review
of administrative decisions
does not permit merits review. In so far as this
argument encompassed an accepted ground of failure to take into account a
relevant
consideration, it must be rejected for the reasons already stated. The
recent decision of the High Court in SZJSS apparently rules out any other
basis for review of the Tribunal’s decision in this case.
- For
the reasons stated, this appeal should be allowed. The orders of the Court will
be:
- The
appeal be allowed.
- The
orders made by the Federal Magistrates Court on 23 June 2010 be set aside and,
in lieu thereof, order:
(a) the application for judicial review be dismissed;
(b) the first respondent pay the appellant’s costs of the proceeding in
the Federal Magistrates Court.
- The
first respondent pay the appellant’s costs of the appeal.
I certify that the preceding forty-four (44)
numbered paragraphs are a true copy of the Reasons for Judgment herein of the
Honourable
Justice Kenny. |
Associate:
Dated: 31 January 2011
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