FEDERAL COURT OF AUSTRALIA

SZRHL v Minister for Home Affairs [2019] FCA 785

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 30 August 2018 dismissing an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the appellants Protection Visas.

2    The first and second appellants are husband and wife respectively. The second appellant applied for a Protection Visa as a member of the family unit of the first appellant. The second appellant has not separately claimed to fear persecution.

3    The appellants are citizens of Bangladesh. They arrived in Australia in March 2007 on student visas. They applied for Protection Visas in February 2011, but on 25 May 2011, the delegate refused their applications. They applied for review to the Tribunal which affirmed the decisions on 28 February 2012.

4    The appellants then sought review of the Tribunal’s decision in the Federal Circuit Court, which dismissed the application. However, their appeal to this Court was allowed, the Tribunal’s decision was quashed and the matter was remitted to the Tribunal for reconsideration: SZRHL v Minister for Immigration & Citizenship [2013] FCA 1093.

5    The appellants’ application for review of the delegate’s decision then proceeded again through the Tribunal. A differently constituted Tribunal made a decision on 16 May 2016 affirming the delegate’s decision. That is the decision that was the subject of the application for review before the Federal Circuit Court, leading to the judgment of 3 August 2018.

6    In its decision record of 16 May 2016, the Tribunal summarised the first appellant’s claims as follows:

You became involved in the activities of the Bangladesh-Nationalist Party [the BNP] when you were studying your Higher School Certificate, and you advanced to positions of authority. You continued your activities when you went to university and, again, you rose to a position of authority, and you helped campaign for a candidate for Parliament.

After you completed your degree in mathematics, you intended to undertake a Master’s degree, but you were unable to complete that course because of adverse attention by members of the Chatra League, which I understand is the student wing of the Awami League (AL). On some occasions, people shot at you.

As a result, you left the University and returned to your home district of Birol and joined the local branch of the-BNP. You soon became an executive member of that branch, which was one of the foremost leadership positions in the area. On one occasion during a protest, you were arrested and remained in custody for a couple of days during which time you were physically assaulted. You were later released on bail.

Because of your work in the 2001 Parliamentary elections, you became a popular member of your party and you were hated by the Awami League. After the Awami league came to power, a number of leading members of the BNP were arrested. You were not arrested at this time, but your house was ransacked and this caused you to seek student visa to leave the country.

You believe that, if you were to return to Bangladesh now, you will be persecuted. There is a false case pending against you.

(Errors in the original.)

7    The Tribunal rejected each of these claims on the basis that, “the applicant is not a witness of truth”. The Tribunal concluded that it was, “not satisfied that any of his claims about adverse attention by the AL Government and the AL Members are based on the applicants’ real experiences”.

8    The basis of the Tribunal’s findings concerning the credibility of the first appellant was as follows:

(1)    The evidence provided in, and in support of, the first appellant’s application for a student visa that he had a full-time paid job in the garment industry in Bangladesh for nine years before his departure to Australia undermined the credibility of his claim to have been engaged in almost full-time political activities on behalf of the BNP during the same period of time.

(2)    The claim that he was the subject of false charges of any kind was not credible because aspects of his evidence were implausible and vague, he had not mentioned the claim in his statement of claims (although the Tribunal noted that it was briefly mentioned in the protection visa application form itself) and he gave differing evidence about this omission at various stages.

(3)    He had advanced certain claims not initially made in his protection visa application that the Tribunal found to have been concocted in order to bolster his claims for protection.

(4)    He had delayed seeking protection for four years after his arrival in Australia, which was not indicative of genuinely fearing persecution in Bangladesh.

(5)    His evidence about the constituency of the candidate he claimed to have worked for in the 2001 Parliamentary elections conflicted with independent information available to the Tribunal.

9    The Tribunal did not accept that the first appellant had left Bangladesh because he feared harm, and found that he did not presently hold any such fear. The Tribunal found that the first appellant did not satisfy either the refugee criterion in s 36(2)(a) of the Migration Act 1994 (Cth), or the complementary protection criterion in s 36(2)(aa). Accordingly, the Tribunal also rejected the second appellant’s claim under s 36(b) and (c) for protection as a member of the first appellant’s family unit.

10    At the conclusion of its reasons, the Tribunal said the following:

Psychologist’s report

76.    At the hearing, the applicant’s migration agent asked the Tribunal to delay its decision to allow time for the applicant to seek a report from a psychologist. The Tribunal agreed, and the applicant has since provided a copy of a report (dated 12 May 2016 and based upon a consultation on the same day) from a registered psychologist.

77.    It is clear from the terms of the report, that it is almost exclusively based upon the applicant’s personal account to the psychologist of his background and history. The report refers to a psychometric assessment derived from a “10-item self-report questionnaire” completed by the applicant. Given that the Tribunal has found above that the applicant is not a witness of truth, the Tribunal does not give any weight to the psychologist’s report as evidence in support of the applicant’s claims about events in Bangladesh.

11    The way the Tribunal dealt with the psychologist’s report assumes significance in the present appeal.

12    The appellants were initially self-represented before the Federal Circuit Court and filed their application for review without the benefit of legal assistance. At the hearing, when represented by counsel, the appellants sought leave to amend their application to rely upon another ground, namely:

2.     The applicants provided a psychologist’s report to the Tribunal in which the psychologist stated that the applicant husband’s ‘depressive and anxiety symptoms appear to have developed as a direct consequence of the emotional distress, caused by fear of execution if he remained in Bangladesh’. This opinion was corroborative evidence of the husband’s claims. The Tribunal overlooked this evidence in making its decision. Where the Tribunal overlooks material evidence, this is a jurisdictional error.

13    The primary judge refused leave to amend the application, principally on the basis that the ground lacked merit. As no other grounds were pressed, his Honour dismissed the application.

14    Before the Federal Circuit Court, the appellants’ submission concerning the proposed new ground was that the Tribunal gave no weight to the psychologist’s report, as it had earlier made adverse findings concerning the first appellant’s credibility without considering whether the psychologist’s report would affect such findings. They argued that if the Tribunal had considered the impact of the first appellant’s mental health upon his evidence, it may have reached a different view as to his credibility.

15    The psychologist’s report was, relevantly, in the following terms:

Clinical Opinion

Based on the information gathered during the assessment, his reported symptoms are suggestive of the presence of high levels of Clinical Depressive Symptoms. He also reported high levels of Anxiety symptoms that are commonly associated with a diagnosis of Adjustment Disorder with Mixed Emotions (Anxiety & Depression). He continues to experience these depressive and anxiety symptoms, as evident from his current reported symptoms and the K-10 results.

[The first applicant’s] Depressive and Anxiety symptoms appear to have developed as a direct consequence of the emotional distress, caused by fear of execution if he remained in Bangladesh. This distress was further exacerbated by his feelings of worthlessness, because he cannot be present to fulfil his role of eldest son of the family nor provide adequately for his wife and child, here in Australia, and further compounded by feelings of loneliness and isolation, due to his absence from his family and friends·in Bangladesh. Given his life pressures, his prior protective family background and good peer support in Bangladesh, it is not unexpected that he has found it more challenging and difficult to continue with his good mental health, particularly after the overwhelming threat to be killed if he remained in Bangladesh, and now his fear serious concern for his life and child.

In the light of the above findings, it appears that his anxiety and depressive symptoms have affected his mental health.

(Emphasis added. Errors in the original.)

16    The psychologist’s report was prepared after a single consultation. To the extent that psychologist concluded that the first appellant’s psychological symptoms were a consequence of events that occurred in Bangladesh, that opinion depended upon the account provided by the first appellant.

17    The primary judge rejected the submission that the Tribunal had “overlooked” the psychologist’s report as the Tribunal’s reasons made it clear that the Tribunal had considered the report and engaged with its contents. His Honour observed that there had been no submission by the first appellant’s migration agent to the Tribunal as to the purpose or relevance of the report. His Honour rejected the submission that the Tribunal should have “gone back” and reconsidered its view of the first appellant’s credibility in light of the psychologist’s report. His Honour considered that this argument ignored that the psychologist’s report was before the Tribunal prior to the time of its making its decision. His Honour considered that the fact that the report was provided after the hearing and that the reference to the report appears at the end of the Tribunal’s reasons did not indicate that the report was overlooked because the Tribunal only came to consider it after it drafted its decision. His Honour also considered that it was a permissible approach for the Tribunal to focus first upon the case that was put by the first appellant and then consider the allegedly corroborative evidence. In this respect, his Honour referred to Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30, where McHugh and Gummow JJ said:

49    In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.

18    The primary judge then considered the earlier judgment in SZRHL v Minister for Immigration and Citizenship, where Logan J held that the Tribunal’s assessment of credibility was based upon a false premise, namely that the first appellant had not mentioned in his visa application that a false claim had been brought against him in Bangladesh. However, the Federal Circuit Court held that the reconstituted Tribunal had not committed a similar error.

19    Finally, the primary judge considered that the Tribunal’s reasons for assigning no weight to the psychologist’s report were clear, including that the psychologist had merely relied upon what the appellant had told him of his claim to fear harm. His Honour considered that the appellants were effectively seeking to challenge the Tribunal’s conclusion that no weight should be assigned to the report, and this amounted to seeking impermissible merits review. Accordingly, the primary judge dismissed the application.

20    The appellants’ notice of appeal contains the following grounds.

1.    His Honour erred by not finding that the Tribunal had relevantly overlooked a psychological report when it had considered it only in one context and not in context of the assessment of credibility.

2.    His Honour erred by considering that the question of the relevance of the psychologist report was adversely determined by the High Court decision in Re: Minister for Immigration and Multicultural Affairs Ex party Applicant s20/2002[2003] HCA 30;(2003) 77 ALJR 1165; (2003) 198 ALR 59 at [49].

(Errors in the original.)

21    The appellants are self-represented in the appeal. They have filed written submissions. The relevant parts of those submissions are as follows:

8.    Judge Nicholls in the Federal Circuit Court refused the Appellants leave to rely on an amended application set out at [18] of his Honor’s judgement at AB 671, only proposed ground 2 was pressed.

9.    The issue concerned a psychologist report (at AB 613-617).

10.    The issue was whether the report could be considered critically important evidence. His Honour did not consider MIBP V SZSRS [2014] FCAFC 16 which was binding on him.

11.    Instead His Honour looked only at earlier authorities which distinguished between claims and evidence. That distinction is no longer critical or probably even valid.

12.    The Tribunal considered the report only in the final 2 paragraphs of its decision at [76] and [77] at AB 637. It rejected the report because it was “almost” executively based on the Appellant’s account and it found that he was not a witness of truth.

13.    However, the report contained assessments not dependent on credibility­observations as to mood, orientation and as well as insight.

14.    The Tribunal completing ignored the Psychometric Assessment at CB 636.

15.    To dismiss the complaints, about the tribunal’s treatment of the report as impermissible merits review is with respect to miss the point. The tribunal went from stating that a report was “” almost exclusively” (meaning not totally) based on the Applicant’s account to refusing to give it weight because it was largely based on his account. This is to ignore the critically important fact that it (least to some extent acknowledged by the tribunal itself) corroborated his account on an objective basis not dependent on what he said.

16.    At [57] at AB 679, His Honour relied upon Re: Minister for Immigration and Multicultural Affairs; Ex Parte Appellant s20/2002 [2018] HCA 30. However, this was not relevant to the argument advanced.

17.    The argument in S20 concerned irrationality. No argument was advanced that the tribunal in S20 had overlooked critically important evidence. However, in s20/2002, the relevant tribunal considered that the relevant witness’s evidence could not satisfy it of the Applicant’s claims.

18.    If the tribunal had have considered the objective aspect of the report and still considered that it could not undo or overcome the credibility findings, there may have similarity with s 20. However, paragraph [77] of the tribunal’s findings ignored the objective assessment involved in psychologist report.

(Errors in original.)

22    The appellants did not expand upon their written submissions or otherwise address the grounds of appeal in their oral submissions. Their oral submissions were principally to the effect that the first appellant was telling the truth and that the Tribunal should have accepted his evidence.

23    An initial question may arise as to whether the appellants require leave to appeal. The Federal Circuit Court judge refused to allow the appellants to amend their application and then dismissed the application on the basis that no other grounds were pressed. Although the first ground of appeal reflects the ground that the appellants were not permitted to rely upon in the Federal Circuit Court, the appeal is against the judgment dismissing the application. It may be that s 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires the appellants to seek leave to appeal from the interlocutory order refusing to allow the amendment. It is not apparent that s 24(1E) applies—that section provides that the fact that there has been, or can be, no appeal from “an interlocutory judgment of the Court” does not prevent a party from founding an appeal from a final judgment in the proceeding on an interlocutory judgment. However, the word “Court” is defined in s 4 to mean only the Federal Court of Australia, and does not include the Federal Circuit Court. Therefore, although the refusal of leave to amend was bound up with the dismissal of the application, it may be that leave to appeal is required. As the Minister did not submit that leave to appeal is required, and as there was no argument upon this issue, I do not propose to decide it. However, to the extent that may be necessary, I will treat the appellants as having made an application for leave to appeal.

24    The appellants’ first ground of their notice of appeal cannot succeed for the reasons given by the primary judge. It is clear that the Tribunal did not overlook the psychologist’s report. It expressly dealt with that report at paragraphs 76–77 of its decision record. The Tribunal gave no weight to the report because it rejected the first appellant’s claims about the events in Bangladesh. The psychologist provided his opinions upon two matters. The first was that the first appellant had depressive and anxiety symptoms that affected his mental health. The second was that those symptoms had developed for reasons including his fear of being killed in Bangladesh. The second of those opinions depended upon the first appellant’s account of events that had occurred in Bangladesh. Once the Tribunal found that the events alleged by the first appellant had not occurred, it was open to the Tribunal to give no weight to the second of the psychologist’s opinions. The psychologist’s report did not suggest that the first appellant’s psychological symptoms might have led him to mistake, embellish or exaggerate events in Bangladesh in his evidence. To the contrary, the report assumed that the first appellant’s account was true. In these circumstances, there was nothing that required the Tribunal to go back and consider whether its assessment of credibility should be affected by anything in the report. The appellants’ first ground cannot succeed.

25    The appellants’ second ground proceeds upon the premise that the primary judge considered that the question of the relevance of the psychological report was adversely determined by the judgment in S20/2002. That premise is not made out. His Honour referred to the passage from that case for the proposition that it was not irrational for the Tribunal to focus upon the case put by the appellant without first weighing up the allegedly corroborative evidence in circumstances where the appellants’ evidence was not considered credible. That was part of his Honour’s reasoning, but it was not determinative. It was open to his Honour to reason in that way.

26    The appellants submit in their written submissions that the primary judge erred by ignoring the psychometric testing referred to in the psychologist’s report. The psychometric testing assisted the psychologist to determine that the first appellant had psychological symptoms. However, the testing was irrelevant to the Tribunal’s assessment of credibility because it did not itself make any link between the symptoms and persecution in Bangladesh.

27    The appellants’ written submissions assert that the primary judge erred by failing to apply Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16. That was a case concerning whether the Tribunal had overlooked a piece of evidence or had considered it but discarded it as immaterial. The Full Court accepted that it was the former, partly because it would have provided corroboration of the evidence of a witness whom the Tribunal had found not to be credible. That case turned upon its own facts and could not affect the outcome of the present case.

28    I can see no error in the reasoning of the primary judge. The appeal must be dismissed with costs.

Associate:    

Dated:    31 May 2019