1618210 (Refugee) - [2021] AATA 5527

1618210 (Refugee) [2021] AATA 5527 (5 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1618210

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Simone Burford
DATE:5 July 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 05 July 2021 at 1:45pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – dismissal decision – failure to attend Tribunal hearing – whether it is appropriate to reinstate the application – mental health issues – medical evidence of inability to attend hearing – disproportionate consequences – paranoia about medication and treatment – common law principles of agency – fitness to provide instructions – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 425-427, 430
CASES
AKO17 v MIBP [2018] FCCA 2022
Li v MIBP [2017] FCCA 2326
Singh v Minister for Immigration and Border Protection & Anor [2018] FCAFC 184
SZGJO v MIMIA [2005] FMCA 1349
SZGRH v MIMIA [2006] FCA 1408
SZMME v MIAC [2009] FMCA 323

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 September 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
The review applicant was invited under s 425 of the Migration Act 1958 (the Act) to appear before the Tribunal on 21 April 2021 at 12:30 pm (WA time). This was a resumption of an adjourned hearing of the application. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place indicated in that invitation.
The first hearing was held on 21 December 2020. The Tribunal notes that the applicant attended the first hearing. An invitation was issued to the hearing, pursuant to s 425 of the Act, on 2 December 2020, stating that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
The applicant was advised that the hearing would be resumed on 21 April 2021 by invitation issued on 6 April 2021.
On 14 April 2021, the applicant responded to the hearing invitation via his representative, indicating that he would attend the scheduled hearing
The applicant did not attend at the scheduled day and time. The applicant’s representative did attend. On 23 April 2021 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
By letter dated 7 May 2021, the applicant’s representative applied for reinstatement of the application. That request was made within 14 days after receiving notice of the decision. That letter is considered further below.
For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
Legal framework
Section 426A of the Act provides that if an applicant is invited to appear before the Tribunal pursuant to s 425 of the Act but does not appear before the Tribunal at the time and date they are scheduled to appear, the Tribunal may dismiss the application without considering it further.[1]
[1] ss 426A(1) and 426A(1A).
If the Tribunal dismisses the application, it must make a statement under s 426B that records the decision, the reasons for the decision and the time and date of the decision.[2] Further, the Tribunal must notify the applicant of the dismissal decision within 14 days by giving a copy of the s 426B statement and a notice advising that the applicant may apply for reinstatement with 14 days of receiving the dismissal statement, the courses of action the Tribunal may take, and the consequences of not applying for re-instatement.[3] The Tribunal must also notify the Secretary of the dismissal decision within 14 days by giving a copy of the statement by the specified method.[4]
[2] s 426B(2).
[3] s 426B(5)–(6).
[4] s 426B(7).
The applicant may, within 14 days of receiving the dismissal statement, request that the application be re-instated.[5] While the request for instatement must be made within 14 days, any evidence to support the request can be provided within a reasonable period following the 14 day period.[6] It is for the applicant to advance the application for reinstatement and any material relied upon.[7]
[5] s 426A(1B).
[6] AKO17 v MIBP [2018] FCCA 2022 at [36]–[40].
[7] Singh v Minister for Immigration and Border Protection & Anor [2018] FCAFC 184 at [28] per Colvin J (with whom Kenny and Bromberg JJ agreed). Although this decision relates to dismissal under Part 5 the principles discussed are applicable to the equivalent Part 7 provisions.
On an application for reinstatement under s 426A(1B), the Tribunal is required to consider whether it is ‘appropriate’ to reinstate the application. If the Tribunal is not of that view then the ‘binary nature’ of s 426A(1C) means that it is required to decide to dismiss the application. The Tribunal has no further discretion to reinstate. If the Tribunal decides to dismiss then it is required to do so by written statement under s 430.[8]
[8] s 426A(1C)(b); See Singh v Minister for Immigration and Border Protection & Anor [2018] FCAFC 184 at [10] per Colvin J.
In discussing the requirements placed on the Tribunal in considering a request for re-instatement, Colvin J noted in Singh v Minister for Immigration and Border Protection & Anor [2018] FCAFC 184 at [29]–[30], the Act:
..imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is 'appropriate' having regard to all of the circumstances advanced to support reinstatement. In such a context, the word ‘appropriate’ connotes two aspects: fitness and propriety. That is, in order to be ‘appropriate’, something must be both suited to the particular circumstances as well as sensible, right and proper. In Mitchell v The Queen (1996) 184 CLR 333 at 346, it was said by Dawson, Toohey, Gaurdron, McHugh and Gummow JJ that:
The phrase ‘considers … appropriate’ indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.
The Act does not provide any criteria that must be taken into account by the Tribunal when deciding whether to reinstate the application or to confirm the decision to dismiss the application. However, the Tribunal’s discretion whether to reinstate the application or to dismiss the application is subject to the requirement that the discretion be exercised reasonably.[9]
[9] Li v MIBP [2017] FCCA 2326 at [35] per Driver J in the sense in the sense contemplated in Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18.
Submissions and evidence
Evidence and submissions
In support of the request for reinstatement, the applicant’s representative submitted the following:
·Statutory declaration of [Sister A], the applicant’s sister, dated 7 May 2021 annexing:
oReferral letter from [Doctor A] to [Doctor B] dated 4 January 2021;
oPhotocopy of a medication box for ‘[Drug 1]’ dated 19/3/2021 ([Doctor B]);
oPhotocopy of a medication box for ‘[Drug 2]’ dated 19 March 2021 ([Doctor B]);
oCopy of product recording ‘[Drug 1]’ on healthdirect.gov.au;
oReferral letter from [Doctor C] to [Doctor B] dated 21 April 2021;
o‘To whom it may concern’ letter from [Doctor C] dated 21 April 2021; appointment card for [Health Service 1] for 3 May 2021;
oAppointment letter from [Health Service 2] dated 27 April 2021;
oCopy of product recording ‘[Drug 1A]’ on healthdirect.gov.au.
·Statutory declaration of [Mother A], the applicant’s mother, dated 7 May 2021;
·Article: ‘Disengagement from mental health treatment among individuals with schizophrenia and strategies for facilitating connections to care: a review of the literature, Schizophrenia Bulletin, Vol 35, No 4, pp 696–703, 2009.
·The Tribunal also had a letter from [Doctor B], consultant psychiatrist dated 15 March 2021 which was submitted by the applicant’s representative on 21 April 2021.
The applicant’s representative also provided written submissions in support of the re-instatement request dated 7 May 2021. No further information or evidence has been provided as at the date of this decision.
Background
The applicant seeks review of a decision on 29 September 2016 refusing to grant him a protection visa. According to the delegate’s decision which the applicant submitted to the Tribunal, he is a citizen of Afghanistan.
According to submissions made on 21 December 2020, the applicant originally arrived in Australia on [date range in] August 2009 as a dependent on his mother’s Refugee and Humanitarian (Class XB) (subclass 204) visa.
The applicant’s wife lodged a Partner (Provisional) (Class UF) and Partner (Migrant)(Class BC) visa application (offshore) on 3 March 2011. On 21 January 2014 a delegate cancelled the applicant’s Humanitarian visa on the basis that the applicant was married when he came to Australia and therefore was not able to satisfy the definition of a member of the family unit of the applicant’s mother. He sought a review of that decision to the Migration and Refugee Tribunal (MRT) and the MRT affirmed the decision on 14 October 2014. His wife’s partner visa application was refused on 2 February 2015.
The applicant lodged the application for the protection visa on 7 November 2014.
As noted in the initial dismissal decision by this Tribunal, the initial hearing of the application took place on 21 December 2020. The applicant attended that hearing in person. His representative also attended. The hearing was assisted by an experienced interpreter in the English and Dari languages. At that hearing the Tribunal discussed with the applicant the Tribunal’s processes and the issues arising on the application for review. The Tribunal also took evidence from the applicant regarding his background and personal circumstances. As the applicant’s representative indicated that she had not had access to some information previously provided by the applicant and had not had an opportunity to fully discuss with the applicant written submissions she had filed with respect to his claims, the Tribunal indicated it would leave discussion of his claims until another date. Accordingly, the hearing was adjourned to continue at a later date which the Tribunal indicated would not be before February or March of 2021. From the discussion at the hearing and its observations of the applicant at the hearing, the Tribunal considers that the applicant was able to fully participate in that hearing, though he had some difficulty remembering exact dates for historical events and complained he could not speak loudly as he had a sore throat.
On 6 April 2021 the applicant was invited to appear before the Tribunal again on 23 April 2021.
On 14 April 2021, the applicant responded to the hearing invitation via his representative, indicating that he would attend the scheduled hearing. In answer to the question, ‘Is there any issue that may affect your ability, or that of any other person participating, to take part in the hearing (e.g. a health problem or disability)?’ The applicant ticked ‘Yes’ and stated:
The Applicant suffers from anxiety and depression at levels which may interfere with his ability to participate in a hearing. His instructions are that he will attend the hearing and we hope he is able to do so on the day.
The Applicant also suffers from pain from ongoing complications of surgery [for an injury] and consequent [medical condition] which mean he suffers from [specified pain] if he sits for periods of longer than approximately one hour, and we therefore kindly request that he be permitted to take breaks to reduce his pain/discomfort.
The letter from the representative accompanying the hearing response also noted as follows:
Regarding the documents to be relied on at hearing, we regret that the Applicant’s mental health issues raised in our previous correspondence with the Tribunal have meant that it has proved impossible to finalise his witness statement seven days before the scheduled hearing date.
The document is very close to being finalised and if the Applicant is able to attend our offices as scheduled we will be in a position to provide this document to the Tribunal by the end of the week.
The Tribunal notes that the further document was not submitted prior to or at the scheduled time of the hearing.
The applicant’s representative attended at the scheduled day and time. The hearing was cancelled as the applicant did not attend. The Tribunal had an administrative discussion with the applicant’s representative which was recorded.
As recorded in the initial dismissal decision, during that conversation the representative indicated she did not have any instructions as to why the applicant had not attended the hearing. However, she said she had spoken to the applicant’s sister who indicated the applicant was not going to attend and that he was suffering from mental health issues. The representative noted that she could ‘hear someone screaming in the background’ of the call and that she thought the applicant may have had a psychotic breakdown. The Tribunal noted that the difficulty it was presented with was the absence of medical evidence to support a claim or submission that he was unable to attend and participate in the hearing.
The Tribunal noted information submitted by the applicant’s representative in the proceedings indicated that the applicant had previously been treated for anxiety and depression, and had been under the care of general practitioners for management of these conditions in 2016 and 2017[10] – this included being prescribed antidepressants[11] – and had been treated by a psychologist for a period in 2016.[12] The stress and uncertainty associated with his visa status and separation from his wife and child are cited as major causes of his mental health issues.[13] He has also been treated for [specified medical conditions].[14]
[10] [Doctor A], [Surgery 1], dated 28 April 2016; [Doctor A], [Surgery 1], dated 19 August 2016; [Doctor D], Medical Report, [Surgery 2], dated 25 October 2016; [Doctor D], Medical Report, [Surgery 2], dated 9 May 2016; [Doctor A], [Surgery 3], dated 15 September 2017.
[11] [Doctor D], Medical Report, [Surgery 2], dated 9 May 2016.
[12] [Psychologist A], Registered Psychologist, Report dated 12 October 2016.
[13] [Doctor A], [Surgery 1], dated 28 April 2016; [Doctor D], Medical Report, [Surgery 2], dated 25 October 2016; [Doctor A], [Surgery 3], dated 15 September 2017.
[14] [Doctor D], Medical Report, [Surgery 2], dated 19 October 2016; [Health Service 3] Report, dated 5 October 2016; Migrant Health Summary, 24 November 2009; [Doctor A], [Surgery 3], 15 September 2017; [Doctor D], Referral, [Surgery 2].
The Tribunal discussed with the representative that this information was quite dated and did not indicate that the applicant had an illness or condition which would prevent him from attending or participating in a hearing. The representative also submitted a letter from the applicant’s treating psychiatrist, [Doctor B], dated 15 March 2021. That evidence is discussed further below.
In order to enable the representative to obtain instructions or further information, the Tribunal indicated to the applicant’s representative it would not make any decision on how to deal with the applicant’s non-appearance until after 3 pm on the day of the scheduled appearance to enable further information on the reasons for non-attendance to be provided. No further information had been provided to the Tribunal at the time the initial dismissal decision was made.
Evidence
As noted above and in the initial dismissal decision, the applicant’s representative submitted to the Tribunal a copy of a letter from [Doctor B], consultant psychiatrist, dated 15 March 2021. That letter indicated that [Doctor B] had reviewed the applicant for the first time on that day following a referral from his general practitioner, [Doctor A]. The letter noted that [Doctor B] had obtained a history from the applicant, who had been accompanied by his sister, and that a further review was planned with an interpreter. No timeframe for that review was provided.
The letter notes that:[15]
From the information I have, [the applicant’s] mental state has deteriorated considerably, following the uncertainty over the visa.
On history today, both from [the applicant] and his sister, is that there has been a marked deterioration in his mental state, to the point that now he fulfils the diagnostic criteria for a major depressive episode. He described a number of symptoms of depression, including sleep disturbance, irritability, tiredness, lethargy, and some suicidal ideation. Of concern is that there may be the development of some psychotic symptoms, in that from time to time [the applicant] feels that there are others present and they are talking about him.
[The applicant] has seen a Psychiatrist for this around 4 Years ago and has, in the past, been prescribed antidepressant medication. Currently he is not on antidepressant medication.
[15] Letter from [Doctor B], consultant psychiatrist, dated 15 March 2021.
The letter noted that [Doctor B] had prescribed anti-depressant medication and that ‘this may be associated with some improvement in his mental state’. [Doctor B] notes that ‘the on-going issue of the stress related to the visa is a powerful factor that has a negative impact on his mental state’, and that chronic pain associated with his motorbike accident in the past also has a negative impact on his mental state. He noted that ‘anything that can be done to decrease the stress related to the visa issues would have a far more positive impact than any specific medication’.
The Tribunal notes the letter was prepared a month prior to the date on which the applicant was to appear before the Tribunal for the resumed hearing. While it indicates the applicant is suffering from depression and ‘may be’ developing ‘some psychotic symptoms’, the letter does not suggest the applicant lacks the capacity to participate in the Tribunal’s proceedings or attend a hearing. As noted in the initial dismissal decision, the Tribunal considered that while the information provided in the letter may be relevant to the manner of the conduct of proceedings before the Tribunal and may be relevant to assessing and weighing any evidence given by the applicant at a hearing, the information provided did not indicate any basis, including any medical diagnosis or illness, which would preclude the applicant appearing before the Tribunal to give evidence and present arguments.
As noted above, the applicant’s representative submitted information in support of the application for review which indicated that the applicant had previously been treated for anxiety and depression, and had been under the care of general practitioners for management of these conditions in 2016 and 2017.[16] He has also been treated by a psychologist for a period in 2016.[17] This included having been prescribed antidepressants.[18] Medical reports cite the stress and uncertainty associated with his visa status and separation from his wife and child as major causes of his mental health issues.[19] He has also been treated for other health issues including [specified medical conditions].[20]
[16] [Doctor A], [Surgery 1], dated 28 April 2016; [Doctor A], [Surgery 1], dated 19 August 2016; [Doctor D], Medical Report, [Surgery 2], dated 25 October 2016; [Doctor D], Medical Report, [Surgery 2], dated 9 May 2016; [Doctor A], [Surgery 3], dated 15 September 2017.
[17] [Psychologist A], Registered Psychologist, Report dated 12 October 2016.
[18] [Doctor D], Medical Report, [Surgery 2], dated 9 May 2016.
[19] [Doctor A], [Surgery 1], dated 28 April 2016; [Doctor D], Medical Report, [Surgery 2], dated 25 October 2016; [Doctor A], [Surgery 3], dated 15 September 2017.
[20] [Doctor D], Medical Report, [Surgery 2], dated 19 October 2016; [Health Service 3] Report, dated 5 October 2016; Migrant Health Summary, 24 November 2009; [Doctor A], [Surgery 3], 15 September 2017; [Doctor D], Referral, [Surgery 2].

The statutory declaration of the applicant’s sister dated 7 May 2021, supported by the statutory declaration of his mother, notes that the family are ‘very worried that he is developing a serious psychotic illness’ and refers to hearing the applicant talking to someone when there is no one in the room with him, screaming in pain and other behaviours which have caused her concern. The applicant’s sister refers to the applicant refusing to attend appointments with doctors that are booked for him. She indicates the same has occurred with legal appointments. She refers to the fact on 20 April 2021 the applicant ‘had another episode we saw people in his room trying to attack’. The applicant’s sister believes that the applicant took her mother’s [named] tablets before he went to bed and when he was woken in the morning he was drowsy and he was unable to get up because he was in pain. She said that when he got up eventually he did not seem to know what time it was and did not realise that he had already missed his appointment at the Tribunal. She then took the applicant to see [Doctor C]. She notes she ‘asked [Doctor C] to give us a letter about [the applicant’s] mental health, but she did not know him so she was not able to provide us with a mental health assessment.’ The applicant’s sister indicates that on 23 April 2020 she called [Hospital 1] and they sent two people to the house to speak to the applicant. As a result, they booked an appointment for him at the clinic at [Hospital 1] and told him to take the medication [Doctor B] had prescribed until that appointment.
The appointment was booked for 3 May 2021. On 3 May he attended [Hospital 1], however, the psychiatrist was running late and the applicant left before he was able to be seen. The appointment was rescheduled for 6 May 2021. On 5 May 2021 two people from [Hospital 1] attended the family’s home to speak to the applicant and gave him [Drug 1A] to take prior to the appointment. The statutory declaration notes that the ‘healthdirect’ website says that [Drug 1A] is a drug used for treating schizophrenia and related psychoses.[21] The Tribunal notes that according to the label on the [Drug 1] box, [Drug 1] is a commercial brand name for [Drug 1A]. The applicant did not attend the rescheduled appointment on 6 May 2021 at [Hospital 1]. On 7 May 2021 [Hospital 1] sent staff to collect the applicant to attend an appointment however the applicant had left the house by the time they had arrived.
[21] Statutory declaration of [Sister A], the applicant’s sister, dated 7 May 2021.
The appointment documents from [Health Service 1] describe the process for the appointment. They indicate:[22]
The doctor you will see is a medical doctor who has specialist training in the assessment and treatment of psychiatric disorders. Psychiatric disorders occur when a person's ability to function is badly affected by serious disturbances in thought or mood. There can be physical (medical), psychological (how you deal with difficulties) or social problems (stressors) causing your symptoms.
The letter goes on to talk about what would be discussed at the assessment and what the patient may expect following the assessment. The letter does not contain any assessment of the applicant personally.
[22] Appointment letter from [Health Service 2] dated 27 April 2021.
The Tribunal notes that the applicant also submitted a letter and referral from [Doctor C] dated 21 April 2021, the date on which the applicant failed to attend. That letter indicates the applicant was a new patient of [Doctor C] and gave her a history of a mental health condition for which he was under the care of [Doctor B]. The doctor notes the applicant missed his appointment with the Tribunal ‘due to feeling unwell mentally today’. The doctor referred him back to [Doctor B] for ‘an opinion and management of his depression/anxiety’. The applicant’s sister’s evidence was that the doctor declined to provide an assessment of the applicant’s mental health as he was a new patient.
The applicant also offered an article from Schizophrenia Bulletin titled ‘Disengagement from mental health treatment among individuals with schizophrenia and strategies for facilitating connections to care: a review of the literature’. The Tribunal has had regard to the article but for the reasons outlined below does not consider it provided evidence that the applicant is suffering from schizophrenia.
The request for reinstatement and the representative’s submissions
By letter dated 7 May 2021 the applicant’s representative applied for re-instatement on behalf of the applicant. That letter stated:
We confirm our instructions from the Applicant’s family members that the Applicant did not attend the hearing on 21 April 2021 due to the very poor state of the Applicant’s mental health on and around that date. Unfortunately, the Applicant has continued to be unfit to provide instructions himself.
Regrettably, due to the nature of the Applicant’s continuing mental health issues and his fears of engaging with mental health support, we are currently unable to provide a mental health assessment for the Applicant. However, the Applicant’s family has for the last two weeks been trying to have the Applicant assessed by the mental health services attached to [Hospital 1], and remain optimistic that despite the Applicant’s concerted efforts to evade the assessment, this will be able to be arranged in the near future. We therefore kindly request the Tribunal’s patience in allowing us further time to be able to obtain this assessment and provide it to the Tribunal.
The letter goes on to state that:
Regarding the Tribunal’s decision to dismiss this application pursuant to s 426A(1A)(b) of the Act, we note with concern that the outcome of allowing this decision to stand will be that the Applicant – who was previously assessed be a refugee when granted the visa he arrived to Australia on and who has now applied for a protection visa – will not have the risk of harm he faced on return to Afghanistan assessed. This will be the case despite the fact that the Applicant’s representative did attend the hearing on the date scheduled, and despite the potentially very severe and disproportionate consequences of declining to assess the Applicant’s claims for protection.
In written submissions supporting the request for re-instatement, the applicant’s representative submitted that the evidence they had since admitted ‘tends to indicate’ that the applicant ‘has been suffering from the onset of either schizophrenia or related psychosis since at least March 2021’. The applicant’s representative stressed ‘the need for caution and proportionality in the Tribunal’s response to his non-attendance at the hearing scheduled for 21 April 2021’.
The applicant’s representative also submitted that it is widely acknowledged that people suffering from schizophrenia and related illnesses are often extremely reluctant to engage with treatment, including due to intense anxiety or paranoia about medication and treatment. She referred to the article submitted from Schizophrenia Bulletin in support of this submission. She submitted that the article confirms the following points:
·up to 1/3 of individuals with serious mental health illnesses disengage from care;
·that ‘male gender coming ethnic minority background, and low social functioning have been consistently associated with disengagement from mental health treatment’; and
·that those with ‘early onset psychosis are at particularly high risk of treatment dropout.’
The Tribunal acknowledges the submissions from the applicant’s representative. However, the Tribunal had a number of concerns with the request and the submissions.
The first concern was that it is clear from the submissions of the applicant’s representative and on the other information before the Tribunal that the submissions and the application for reinstatement had been made without instructions from the applicant. While the Tribunal accepts the application and submissions were made in good faith it appears that the request and submissions reflect the wishes of the applicant’s family members rather than the applicant. In this regard, the Tribunal notes that applying the common law principles of agency, where a migration agent or Australian legal practitioner notifies the Tribunal that they are acting on behalf of a review applicant in relation to a review, the actions of the agent may be taken to be the actions of the review applicant, unless the migration agent or Australian legal practitioner in fact lacks authority to act in the particular way. The Tribunal is entitled to assume that a migration agent or Australian legal practitioner has the requisite authority to do things on behalf of an applicant in the ordinary conduct of a review, unless it knows the agent does not. In this instance the Tribunal regards it is arguable that the representative lacks the requisite authority based on their own submissions that they have been unable to obtain instructions.[23]
[23] For discussion of the extent of an agent’s authority see for example SZGJO v MIMIA [2005] FMCA 1349; SZMME v MIAC [2009] FMCA 323; SZMME v MIAC [2009] FMCA 323; SZGRH v MIMIA [2006] FCA 1408.
For the reasons outlined below the Tribunal considers there is insufficient evidence, in particular qualified medical evidence, which would support a finding that the applicant was ‘unfit’ to provide instructions on his own behalf. In the Tribunal’s view such a finding should not be made lightly. Accordingly, the Tribunal does not accept the representative’s submission that the applicant was unfit to give instructions on the request for reinstatement.
However, the Tribunal notes that in this instance if the application was not made on instructions it would follow that the applicant had failed to seek reinstatement. The effect of this would be that the initial dismissal would be confirmed (subject to the initial dismissal decision having been validly made). Further, the Tribunal considers there may be some argument that lodgement of the request for reinstatement falls within the representative’s authority as an agent. In such circumstances, notwithstanding the Tribunal’s reservations about the representative’s authority to request reinstatement, giving the applicant the benefit of the doubt the Tribunal has accepted the request and submissions as a valid request for reinstatement.
While accepting the request for reinstatement, the Tribunal notes in the context of assessing that application, that there is no evidence offered from the applicant himself as to the reasons for his non-attendance before the Tribunal. For the reasons outlined below, the Tribunal considers there is insufficient evidence, in particular qualified medical evidence, which would support a finding that the applicant was unable to provide such evidence on his own behalf or was ‘unfit’ to provide instructions on his own behalf.
The Tribunal was also concerned that many of the submissions made were more accurately characterised as assertions of fact or evidence which the Tribunal approaches with a degree of caution. In the Tribunal’s view while it is open to the representative to make submissions as to the findings the Tribunal should make based on the evidence offered by the applicant, or the conclusions to be drawn from those findings it would not be appropriate for the Tribunal to place significant weight on those assertions as evidence. In this regard the Tribunal notes that the letter from the applicant contains the following statement:
we wish to stress our previous evidence to the Tribunal – given on the basis of our solemn obligations as legal practitioners to assist the Tribunal by providing accurate information which does not risk misleading the Tribunal – that our observations arising from dealing with this Applicant, his sister [Sister A] and his mother [Mother A] over the course of a period of approximately 20 months have left us in no doubt about the severity of the Applicant’s mental health problems.
Respectfully, while the Tribunal does not doubt the sincerity of the representative’s efforts to assist her client, there is no information before the Tribunal to suggest the applicant’s representative is qualified to provide evidence of an assessment of his mental health. Even if she were, the Tribunal has reservations about the appropriateness of her doing so in circumstances where she is acting in a professional capacity representing the applicant in the proceedings. In any event, the Tribunal does not place significant weight on the applicant’s representative’s ‘evidence’ that he is suffering from severe mental health problems given her lack of demonstrated experience to do so.
Consideration and findings
The Tribunal has carefully considered the evidence submitted by the applicant’s representative and family members. For the reasons outlined below, the Tribunal is not satisfied that the evidence establishes a satisfactory reason for the applicant’s non-attendance.
The Tribunal accepts that the applicant is suffering from depression and that he is being managed by a general practitioner and assessed by a psychiatrist for this condition. He has also been prescribed medication to improve his mental state. However, this information does not indicate the applicant is unable to engage with the proceedings before the Tribunal or attend a hearing. Indeed, on a previous occasion he has done so.
Contrary to submissions, there is no evidence that the applicant has been diagnosed by a qualified professional as suffering from schizophrenia or related psychosis. [Doctor B’s] letter indicates that in March 2021, the applicant ‘fulfilled the diagnostic criteria for a major depressive episode’. While the letter expresses concern that there ‘may be the development of some psychotic symptoms’, in the Tribunal’s view there is nothing in the letter which suggests that [Doctor B] has diagnosed the applicant as having a psychotic illness including schizophrenia. The Tribunal notes that the evidence indicated [Doctor B] has ceased to treat the applicant due to his failure to attend appointments on 30 March 2021 and 19 April 2021.
While there is evidence that [Doctor B] prescribed the applicant two medications which are used in the treatment of schizophrenia and related psychoses and bipolar disorder, the letter from [Doctor B] indicates that he prescribed the applicant ‘anti-depressant medication’ noting that it ‘may somewhat improve’ his mental state. Further, the doctor’s letter notes that, in the doctor’s opinion ‘anything that could be done to decrease the stress related to the visa issues would have a far more positive impact than any specific medication’. In the Tribunal’s view that opinion is not consistent with an assessment that the applicant is suffering from a psychotic illness. In the Tribunal’s view [Doctor B’s] letter does not reflect a diagnosis that the applicant is suffering from a psychotic illness but rather depression associated at least in part with the visa proceedings. The Tribunal notes that this is consistent with the diagnosis referred to in the referral letter from the applicant’s treating general practitioner, [Doctor A], who noted in his referral letter of 4 January 2021 that he was referring the applicant to [Doctor B] for ‘an opinion and management. Depression/anxiety’. The letter notes the applicant’s history as including ‘depression recurrent’ and ‘anxiety disorder’. [Doctor C’s] letter and referral similarly do not support a finding that the applicant is suffering from an illness which prevented him from appearing before the Tribunal. The appointment material for [Health Service 1] similarly does not contain any assessment on the applicant’s mental health, nor can it be imputed to evidence that the applicant was suffering from a major illness.
Similarly, as there is no evidence the applicant has been diagnosed with schizophrenia, in the Tribunal’s view, the article relating to that illness does not assist in providing a satisfactory reason for non-attendance at the hearing.
The Tribunal accepts that the applicant’s sister and mother are concerned about the applicant’s behaviour and have made efforts to obtain and encourage mental health treatment for the applicant. However it is clear from the evidence that the applicant has chosen not to engage with that treatment. The Tribunal notes there is no evidence that the applicant has been found to be lacking capacity or incapable of making independent decisions. As such while the Tribunal accepts that the applicant has been diagnosed and treated for depression and anxiety, there is no evidence before the Tribunal that the applicant is unable to attend before the Tribunal or unable to participate in the process of giving evidence and making submissions before the Tribunal such that his application for review can be determined. The Tribunal accepts on the medical evidence that the applicant finds the visa process stressful and that this has caused him to suffer from depression. However again there is no evidence before the Tribunal to support an assertion that the applicant is unable to attend for the Tribunal or participate in the hearing.
The applicant is well represented by experienced migration agents. The evidence is that his family has stressed to the applicant the need for him to engage in the process and that the implications of not doing so have been explained to him by his representative. While the Tribunal acknowledges the efforts of the applicant’s representative and his family to represent the applicant’s interests as they see them, it remains that this is the applicant’s application and it is for the applicant to make his case on the review. His non-attendance before the Tribunal on 21 April 2021 indicates a decision by the applicant not to do so. In the absence of clear medical advice that the applicant was unable to attend and to participate in that hearing due to a medical condition the Tribunal does not accept that the applicant has provided any satisfactory reason for his non-attendance.
In this regard the Tribunal notes even if it were to accept the submissions and third-party statements as evidence that the applicant was suffering from a major psychotic illness, that would not establish that such an illness would render the applicant unable to attend before the Tribunal. Again, in the Tribunal’s view it is for the applicant to provide clear evidence that establishes a satisfactory reason for non-attendance. The evidence offered does not establish such a reason.
The Tribunal has considered all the circumstances of the application and the applicant’s representative’s explanation for non-attendance. Notwithstanding the lack of evidence from the applicant himself, the Tribunal accepts the applicant may be stressed by the visa process and by appearances before the Tribunal. The Tribunal is satisfied that the applicant understood that the proceedings would continue on a later date to discuss his claims in detail. It was not submitted that the applicant was unaware of the proceedings or that he did not appreciate he was required to attend. The Tribunal is satisfied he was aware of the scheduled appearance and the requirement for him to attend. The applicant chose not to appear before the Tribunal.
The applicant’s representative submitted that some significance should be placed on the fact the representative attended the hearing at the scheduled time. To the extent this is a submission that the representative’s attendance was sufficient, the Tribunal rejects the submission as inconsistent with s 427(6). The invitation under s 425 is issued for the applicant to attend to ‘give evidence and present arguments’. While the Tribunal may allow a representative to be present to assist an applicant at a hearing, appearing before the Tribunal is not a role which can be fulfilled by a representative and a failure by an applicant to attend in compliance with the invitation to do so is clearly to be treated as non-attendance under the relevant provisions of s 426A the Act.

The applicant’s representative made reference in her letter to submissions made in the substantive proceedings. The Tribunal notes that the representative had indicated earlier those submissions were also made without instructions. This was confirmed before the Tribunal on the earlier occasion the applicant did appear. In the Tribunal’s view those submissions included a range of claims made on the applicant’s behalf which were not included in the application for protection where the applicant claimed to fear harm from his wife’s family due to having engaged in a relationship with his wife prior to marriage. As the submissions were made without instructions the Tribunal does not place weight on them as claims made by the applicant, though the Tribunal accepts they may raise issues which could be considered implied claims on the application.
The Tribunal appreciates the proceedings are longstanding and that the application for this visa followed the cancellation of the applicant’s initial visa, on which he was a dependant applicant, and the subsequent review of that decision. This has resulted in an extended separation of the applicant from his wife and child. While the Tribunal appreciates that the applicant’s visa status, separation from his wife and child and appearance before the Tribunal may be stressful, particularly in light of the applicant’s history of depression and other health issues, the Tribunal does not regard this as providing a reason for not attending before the Tribunal to present evidence and arguments in support of his application for review of he protection visa application.
The Tribunal is mindful that this is a protection visa application. However, the Tribunal is also mindful that the applicant has had a prior dependent humanitarian visa cancelled and that that cancellation decision has been affirmed by the MRT. While the nature of the application is such that the Tribunal does not dismiss the application lightly, it is the applicant that claims serious consequences flow from his failure to obtain a protection visa. A failure by the applicant to attend at a hearing to discuss his claims causes the Tribunal to have concerns about the credibility of those claims.
Having carefully considered all the information relating to the application and the evidence and submissions made on the applicant’s behalf, the Tribunal does not consider it would be appropriate to re-instate the application. The applicant has not himself provided any reasons for his non-attendance before the Tribunal and the submissions and evidence made on his behalf do not establish to the satisfaction of the Tribunal any reason the applicant would have been unable to attend on the date and time he was invited to do so.
Having considered all the circumstances of the application, and having regard to the Tribunal’s objectives under s 2A of the Administrative Appeals Tribunal Act 1975, the Tribunal considers that the initial decision to dismiss the application should be confirmed. In these circumstances, the decision under review is taken to be affirmed.
The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.
DECISION
The Tribunal confirms the decision to dismiss the application.
Simone Burford
Member