SBAP of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 79

FEDERAL COURT OF AUSTRALIA SBAP of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 79 MIGRATION – dismissal of appeal by consent after the hearing of the appeal Reg v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450 - cited APPLICANT SBAP OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V346 OF 2002 MERKEL, GOLDBERG & KENNY JJ 2 MAY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V346 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT SBAP OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MERKEL, GOLDBERG AND KENNY JJ

DATE OF ORDER: 2 MAY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS BY CONSENT THAT: 1. Order 2 of the orders made by the Honourable Justice Heerey in proceeding S235 of 2001 on 10 May 2002 be set aside and in substitution therefor it be ordered that the parties bear their own costs of proceeding S235 of 2001. 2. Otherwise, the appeal be dismissed without a determination on the merits. 3. The parties bear their own costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V346 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT SBAP OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MERKEL, GOLDBERG AND KENNY JJ

DATE: 2 MAY 2003

PLACE: MELBOURNE

MERKEL J REASONS FOR JUDGMENT 1 Since the hearing of the appeal the parties have resolved the dispute between them by the respondent ("the Minister") exercising his discretion pursuant to s 417 of the Migration Act 1958 (Cth) ("the Act") to substitute a more favourable decision to that made by the Refugee Review Tribunal ("the Tribunal"), which was the subject of the appeal. The Tribunal had affirmed the decision of the delegate of the Minister to refuse the appellant's application for a temporary protection visa. As a result of the Minister exercising his discretion under s 417 the appellant, his wife and two children were issued with temporary protection visas. The parties have applied for consent orders setting aside the order for costs made by the trial judge against the appellant but otherwise dismissing the appeal without any determination on the merits, with the parties bearing their own costs. The parties made a joint written submission to the Court on 9 April 2003 regarding the orders that were appropriate. 2 In my view the Court should make the orders requested by the parties. In the usual course the Court, having heard an appeal, would accede to a request by the parties to set aside a costs order of the trial judge and to otherwise dismiss the appeal, without making any observations or comments concerning the matter before it as there is no longer a lis to be decided. However, a different course has been adopted on some occasions when there is an issue "involving a public authority as to a question of public law": see Reg v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450 at 456 per Lord Slynn. In my view the present appeal raises an important issue in relation to the inquisitorial functions of the Refugee Review Tribunal under the Act and is, or is analogous to, an issue involving a "public authority as to a question of public law". 3 The appellant and his family are of the Sabian Mandean religion and claimed that they have a well founded fear of being persecuted by reason of their religion if they were returned to their country of nationality, Iran. The claim is essentially based upon the response of the authorities in Iran to the appellant's complaint to the police that his nine year old daughter had been sexually abused by a Muslim caretaker at her school. The Tribunal's finding that the claimed sexual assault did not occur was critical to the outcome of the appellant's claim before it. 4 The evidence before the Tribunal was that the appellant's daughter had been experiencing vomiting; distress; lifelessness; had problems with bed wetting and sleep disturbances; was susceptible to colds; had nightmares; had loss of appetite; suffered separation anxiety, and had threatened self-harm. The psychologist treating the appellant's daughter, in a report to the Tribunal, stated that this "abused child suffers longterm severe post traumatic stress" and had been referred to her for that "disorder, which is quite severe." Shortly prior to the Tribunal handing down its decision the migration agent acting for the appellant informed the Tribunal that the psychologist had informed her that the appellant's daughter was "threatening to harm herself" and that the psychologist would be writing a report on the daughter's condition and sending it to the Tribunal. The Tribunal handed down its decision without waiting for the report stating that whatever actions the daughter may take in the detention centre "cannot influence the Tribunal's decision". 5 The most elementary enquiries by the Tribunal would have revealed that the internalised psychosocial sequalae described above were consistent with the daughter having suffered serious sexual abuse: see Hoier et al "The Impact of Sexual Abuse: A Cognitive-Behavioural Model" in O'Donohue and Geer (eds) The Sexual Abuse of Children: Clinical Issues vol 2 1992 at pp 100-122; Salter Treating Child Sex Offenders and Victims: A Practical Guide 1988 at pp 225-245; Finkelhor et al A Sourcebook on Child Sexual Abuse 1986 at pp 144-152; Conte and Schuerman "The Effects of Sexual Abuse on Children: A Multidimensional View" in Wyatt and Powell (eds) Lasting Effects of Child Sexual Abuse 1988 at pp 157-167; and Browne and Finkelhor "Impact of Child Sexual Abuse: A Review of the Research" in Donnelly and Oates (eds) Classic Papers in Child Abuse 2000 at pp 217-237. In the result, the Tribunal rejected the claim that the sexual abuse had occurred without making any such enquiries or awaiting the report of the psychologist. Rather, it based its decision on the appellant's credibility. 6 An issue arising on the appeal concerned the extent to which the Tribunal ought to have enquired as to the cause of the "longterm severe post traumatic stress" disorder of the appellant's daughter. The issue is important, not just because it was directly raised by the circumstances of the present case but, also because the dismissal of the application for the review of the Tribunal's decision by the trial judge should not be seen as authorising the Refugee Review Tribunal to refrain from making due, proper and conscientious enquiry concerning the matters it is required to determine. 7 On numerous occasions the courts have emphasised that the Tribunal in carrying out its inquisitorial functions is under a duty to arrive at the correct or preferable decision in the case before it according to the material before it: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 per Brennan J; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294. In my view, in the present case a Tribunal making due, proper and conscientious enquiry would have enquired as to the cause of the daughter's condition and, in particular, as to whether the information ascertained from such an enquiry did or did not corroborate the claim of sexual abuse upon which the claims of the appellant ultimately depended.