AFD16 v Minister for Immigration
[2016] FCCA 2810
•23 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFD16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2810 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) – whether the Tribunal erred in proceeding on medical evidence that was not open to it – denial of procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 NT Power Generation Pty Ltd v Power & Water Authority (2004) 219 CLR 90; [2004] HCA 48 Patel v Minister for Immigration & Border Protection [2016] FCCA 954 SZMSA v Minister for Immigration & Citizenship [2010] FCA 345 SZSFS v Minister for Immigration & Border Protection (2015) 232 FCR 262; [2015] FCA 534 |
| First Applicant: | AFD16 |
| Second Applicant: | AFE16 |
| Third Applicant: | AFH16 |
| Fifth Applicant: | AFG16 |
| Sixth Applicant: | AFF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 215 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 24 October 2016 |
| Date of Last Submission: | 24 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2016 |
REPRESENTATION
| Counsel for the Applicants: | Mr P Bodisco |
| Solicitors for the Applicants: | McArdle Legal |
| Counsel for the First Respondent: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The fourth named applicant be removed from these proceedings.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 215 OF 2016
| AFD16 |
First Applicant
| AFE16 |
Second Applicant
| AFH16 |
Third Applicant
| AFG16 |
Fifth Applicant
| AFF16 |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 8 January 2016. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the first, second, third, fifth and sixth named applicants’ protection visas.
The fourth named applicant is the infant child of the first two named applicants. That appears to be the only basis upon which he was included as a party to these proceedings. He did not apply for a protection visa and there has been no decision as to whether or not he ought to be granted such a visa. The Tribunal did not make any decision directly concerning him. He is not a proper party to these proceedings and so will be removed as a party.
The first named applicant is the husband of the second applicant and the remaining applicants are their daughters. They are citizens of Egypt who arrived in Australia on visitor visas on 8 May 2011 and lodged an application for a protection visa on 11 May 2011. It is convenient to refer to the first named applicant as the applicant.
In the application for a protection visa, the applicant claimed that he had worked as a dentist in Egypt and feared harm as a result of his anti-government political opinion. He claimed that the lack of effective government in Egypt left him vulnerable to theft and kidnapping.
On 25 July 2011 a delegate of the Minister decided not to grant the applicant a protection visa. With the assistance of a lawyer who was also a migration agent, the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 1 November 2012 the Tribunal made a decision to affirm the decision of the delegate. That decision was set aside by the Federal Court and the matter was remitted to the Tribunal: SZSFS v Minister for Immigration & Border Protection (2015) 232 FCR 262; [2015] FCA 534 (“SZSFS”). It will be necessary to return to the reasons for the Federal Court’s decision in due course.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
When the matter was remitted to the Tribunal, the applicant’s migration agent forwarded to the Tribunal the report of a consultant psychiatrist, Dr Naidoo, dated 7 September 2015. In his report, Dr Naidoo expressed the opinion that the applicant suffered from a Major Depressive Disorder with a psychotic component and stated:
… Given the patient’s present mental state and his adverse response to stressors I believe he is not fit to attend a hearing before the tribunal as it might seriously endanger his health.
…
The Tribunal invited the applicant to a hearing. By letter dated 21 October 2015, the applicant responded to that invitation saying that the first two named applicants would attend at the hearing to give evidence with their representative and required an Arabic interpreter.
Prior to the hearing, the applicant’s agent sent the Tribunal a written submission dated 23 October 2015 in which it was claimed that the applicant’s three daughters required protection from female genital mutilation (FGM) in Egypt. The submission noted that it would not discuss any other claims of persecution raised in the original application, that the credibility of the first two applicants was not an issue and that the “matter is now brought according to law in a way that is intended to remove issues concerning the primary applicant”.
The first two applicants appeared before the Tribunal on 28 October 2015 together with their migration agent. A number of other witnesses also gave evidence on behalf of the applicant. Before the Tribunal, the applicants’ claims included that they would be harmed by a Salafist uncle and that they would be harmed because of their Christian faith.
After the hearing, the applicant’s agent wrote to the Tribunal requesting that the Member constituting the Tribunal for the purposes of the review, recuse himself from the review. The Member did not recuse himself and the Tribunal made its decision on 8 January 2016 affirming the decision of the delegate.
The Tribunal found that the first two applicants’ evidence lacked credibility and that some of their claims were fabricated in order to be granted a protection visa. It was not satisfied that the applicants’ families or community would force the daughters to undergo FGM or that, when they married, the girls would be forced to undergo FGM by their husbands.
The Tribunal did not accept that the second named applicant had a Salafist uncle who wants to kill her or that he had attempted to run over one of the applicant’s daughters in Egypt.
The Tribunal did not accept that the applicant had, or would be perceived in Egypt to have any interest in Christianity, and did not accept that the applicant had been discriminated against because of his political opinion. The Tribunal found that the fact that the applicant had posted a criticism of a military leader on Facebook would be of no interest to the current government. Further, there was no indication that the applicant would be politically active in the future.
The Tribunal also rejected claims that the daughters would be victims of child abuse in Egypt and found, contrary to Dr Naidoo’s opinion, that there were facilities available in Egypt to address the applicant’s mental health issues.
For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
The only ground pressed by the applicant in this application is that, by accepting the diagnosed mental conditions of the first and second applicants but rejecting their symptoms, the Tribunal made a decision that was so unreasonable or illogical that no reasonable Tribunal would have made it. The applicant’s written and oral submissions went much further than that ground, although the applicant did not seek leave to amend the application. The grounds relied on by the applicant at hearing were:
a)The Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) because the applicant was not in a fit state to give evidence and present arguments;
b)The Tribunal’s decision was illogical because the Tribunal:
i)accepted the opinion of Dr Naidoo but not the symptoms on which that opinion was based; and
ii)proceeded on an understanding of part of Dr Naidoo’s report that was not open;
c)The applicant was denied procedural fairness in that he was not given the opportunity to give his evidence in light of his mental condition.
I note that, during the hearing of this matter I recalled that there may have been a decision by Branson J relevant to this issue. As I could not recall the name of that decision, I asked the parties’ representatives to notify me if they were able to identify it.
On 3 November 2016 the solicitor for the applicant sent an email to my chambers and copied to the solicitors for the Minister identifying the decision as NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 56; [2003] FCA 983 (“NAMJ”). I refer to that decision later in these reasons. The email went further however, to make submissions about that decision. No leave was granted to make any such submissions. That this is entirely inappropriate and is so well-established that it hardly bears repeating: Patel v Minister for Immigration & Border Protection [2016] FCCA 954 at [15] citing MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 at 257-258 per Mason J; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [27]-[31] per McHugh J; NT Power Generation Pty Ltd v Power & Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [191]-[192] per McHugh A-CJ, Gummow, Callinan and Heydon JJ; Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population & Communities [2013] FCA 782 at [2]-[5] and Singh v Department of Employment & Workplace Relations [2009] FCAFC 59 at [66]-[72].
Nevertheless, it appears that many lawyers in this State remain unaware of this basic principle. Needless to say, I have ignored the submissions.
Section 425 of the Act
Section 425 of the Act relevantly provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
This section defines the nature of an applicant’s right to be heard in connection with the review of a decision not to grant a protection visa: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [33]. For that reason, the provision is of central importance in the Tribunal’s conduct of that review, and a failure by the Tribunal to comply with it, will ordinarily entitle an applicant to relief by way of certiorari and mandamus.
The failure to comply with s.425 of the Act need not be the fault of the Tribunal. It may be that the opportunity required to be given to an applicant was denied for reasons of which the Tribunal was unaware. Thus, in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 just before the hearing, the review applicant had unbeknown to the Tribunal, received news of his father’s death and was, in the opinion of a psychologist, in no condition to handle the hearing by the Tribunal. The Court found that there had been a failure to comply with s.425 of the Act and said at [37]:
On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: NAHF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
An applicant is likely to be denied the “meaningful opportunity” required by s.425 of the Act in circumstances where her condition is shown to be such as to deny her the capacity to give an account of her experiences, to present argument in support of her claims, and to understand and to respond to questions put to her: SZMSA v Minister for Immigration & Citizenship [2010] FCA 345 cited by Keane CJ in Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 (“SZNVW”) at [20]. In SZNVW, the review applicant’s memory and capacity to recall detail and to engage in discussion were affected by a mental impairment. At first instance, this was found sufficient to base a conclusion that s.425 of the Act had not been complied with. On appeal however, the Full Court found that the applicant had had an opportunity to adduce evidence as to his psychological state, even though he did not run his case as well as he might have.
In NAMJ, in a passage referred to by Keane CJ in SZNVW, Branson J observed at [52], that:
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [207]-[208] recognizes that determinations of refugee status may need to be made in respect of individuals suffering mental and emotional disturbances. The legislature may also be presumed to have been aware of this need. For this reason it seems unlikely that the legislature would have intended to set a jurisdictional standard of ‘fitness’ that might prevent a significant number of individuals seeking asylum in Australia from being able to progress applications before the Tribunal to the stage of a hearing when the Tribunal is not able to decide the applications ‘on the papers’. That is, it seems likely that the legislature intended that a Tribunal hearing should be able to proceed notwithstanding some measure of psychological stress and disorder in the applicant. The decision in MIMIA v SCAR establishes, however, that there is a point at which an applicant's psychological state renders a Tribunal hearing a nullity.
The point referred to by her Honour was more definitively stated by Tracey J in Minister for Immigration & Citizenship v SZNCR [2011] FCA 369 where his Honour said at [30]:
… an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.
The question that arises is essentially one of fact: SZQUM v Minister for Immigration & Citizenship [2012] FCA 493 at [38] (Jacobson J).
The applicant relied on Dr Naidoo’s opinion that he was not fit to attend a hearing. However, that was not because the applicant would be unable to understand and answer questions, or to make submissions but rather, because it “might seriously endanger [the applicant’s] health”. Thus, even if I were to accept Dr Naidoo’s opinion, it would not establish a breach of s.425 of the Act. Further, the transcript shows very clearly that the applicant was able to take part in the hearing. He answered questions in a manner that revealed a clear understanding of those questions and, in answer to a direct question from the Tribunal, indicated that, apart from exhaustion, he was fit and able to attend the hearing[2].
[2] Transcript of Tribunal hearing p.8.
The applicant also relied on the fact that his agent had advised him not to attend the hearing. That fact takes the matter no further. There is no evidence of the entirety of that advice or why that advice was given. Even if I were to infer that it was given on the agent’s opinion that the applicant would be unable to participate in the hearing (which I do not), that inference is outweighed by what occurred at the hearing. Further, I would give the opinion of the agent no weight without knowing whether it was based on relevant experience or training.
For those reasons, the applicant has not established that he was not given a meaningful opportunity to attend a hearing to give evidence and to present arguments as required by s.425 of the Act.
Illogical and irrational decision
The applicant argued that the Tribunal’s decision was illogical or irrational on two bases: first, because the Tribunal accepted the opinion of Dr Naidoo but not the symptoms on which that opinion was based; and secondly, because it proceeded on an understanding of that opinion that was not open.
The first of these relies on the decision of Logan J in SZSFS. As already noted, that case concerned the Tribunal’s first decision. Dr Naidoo’s report was not before the Tribunal at the time the Tribunal made its first decision; however, there were two earlier reports by clinical psychologists that were: one by Mary Higson and the other by Emad Girgis.
Ms Higson recorded an observation that at times the applicant’s “thought form was very tangential and he had difficulty in providing a coherent historical narrative”. She expressed an opinion that he appeared to meet the criteria for Adjustment Disorder.
In his report, Mr Girgis wrote:
On assessment [the applicant] presented with symptoms of Depressive mood, anxiety, irritability, insomnia and sleep disturbance, anhedonia, fatigue, lack of self-confidence, decreased appetite, ear (sic) of restriction and fear of suffocation, and deteriorated cognitive functions with severe lack of concentration and memory. [He] satisfies the full DSM-IV (Diagnostic and Statistical Manual of Mental Disorder) criteria for a diagnosis of Adjustment Disorder with Anxiety and Depression.
The Tribunal referred to these reports at some length in a statement of reasons that covered 88 closely typed pages. The following were the critical passages for present purposes:
[343]From the contents of the reports, it was clear that the psychologist was aware that he was involved in presenting his case to the Tribunal. She did not suggest that he was unable to give evidence or understand the proceedings, the interview with the delegate, or the application form. None of the medical/psychological reports made this suggestion. The applicant did not suggest that he could not understand the Tribunal proceedings although he claimed not to understand that he had to present all of his case to the delegate or in the application form. The Tribunal finds that the applicant was able to understand the proceedings at each of the hearings and was able to participate in the same, and that he was able to understand the application form and the purpose of the interview with the delegate and participate in the latter.
[344]The reports suggest that the applicant can sometimes get excited and not provide coherent information, that when he is distressed his thought form can be tangential, he can have difficulty in providing a coherent narrative, and that he demonstrated insight that his conversation could jump from topic to topic. The reports also said that he was able to speak English fluently and his attention and concentration appeared to be intact.
[345]The Tribunal has also had regard to other medical/psychological evidence provided in relation to the applicant. The Tribunal notes that the applicant provided evidence that he was under psychiatric care in Malaysia as a result of stressful events in Malaysia and the Tribunal accepts that he was under such care before he came to Australia. He has also provided evidence from his GP (Dr Sanaa Guirguis in January 2012) that he was suffering from severe anxiety and depression due to a lot of family problems and his worries about returning to Egypt; that in March 2012 he was depressed and anxious (Vicky Staunton); and that his GP had referred him to a (different) psychologist (Emad Girgis who provided a letter dated 1 May 2012) who he had seen the applicant (on an unknown date) and that the applicant satisfies the DSM-IV criteria for a diagnosis of Adjustment Disorder with Anxiety and Depression. The Tribunal accepts this diagnosis as it appears to have been based on psychological tools and it is consistent with the other diagnoses provided. The report says that the applicant has experienced “severe lack of concentration and memory”, claustrophobia, and a fear of being in the presence of an authority figure. The psychologist does not indicate how he came to these conclusions other than what the applicant has told him. The Tribunal notes that the letter provided by this psychologist for the wife contains information relating to another person (Ms Khalil) and the letter for the applicant refers to the applicant’s fear of being prosecuted if he returns to Egypt which is not a claim the applicant has made during the process. Thus although the Tribunal is prepared to accept the diagnosis made by the psychologist, it is not prepared to accept that the report is independent corroborative evidence that the applicant has experienced “severe lack of concentration and memory”, claustrophobia, and a fear of being in the presence of an authority figure as it appears based only on what the applicant told the psychologist.
[346]Accordingly, on the basis of the above evidence the Tribunal accepts that the applicant has suffered mental health issues before he came to Australia, Adjustment Disorder in 2011, and Adjustment Disorder with Anxiety and Depression in 2012. The Tribunal appreciates that the applicant has been anxious about his wife’s pregnancy, the family’s financial circumstances in Australia, and the outcome of the protection visa application process from the start and that he continues to be anxious. The Tribunal has also considered vague references in the 10 June 2012 submission possibly suggesting that there was a lack of communication/understanding in the Tribunal hearings. However, the Tribunal has had a significant opportunity to take evidence from the applicant and the Tribunal considers that he was eloquent, intelligent, articulate, able to express himself and to tell the Tribunal when he did not understand a question. The Tribunal provides significant weight to the diagnoses and has considered the references in the submission however the Tribunal does not accept that the reports provide a satisfactory explanation for the applicant to omit significant part(s) of his claims or inconsistent and contradictory evidence given by the applicant.
The applicant argued on the appeal, as he does in these proceedings, that the Tribunal’s decision was illogical and irrational because the Tribunal accepted the diagnosis in the reports but rejected the symptoms upon which it was based as a possible explanation for the adverse credibility findings.
One plank of the applicant’s argument was that, if one accepted the diagnosis, one necessarily accepted that the applicant had the symptoms of the condition: see [34]. It was further argued that, either the Tribunal had to discount the opinions on the basis that they depended on a factual foundation completely inconsistent with those observations, or if it accepted them, it ought to have found in them an explanation for the applicant’s evidence: [36]. Logan J concluded, at [40] in SZSFS:
… the manner in which the Tribunal has dealt with the evidence of Ms Higgins and Mr Girgis, with all due respect to the Tribunal member concerned, as an irrational basis for the discounting of the credibility of the [applicant] and his wife, for just the reasons developed by the appellants in submissions. Had the Tribunal discounted the opinions of Ms Higgins and Mr Girgis because they were based on self-reported conditions quite inconsistent with the appellants’ observed demeanour when giving evidence that would have been rational. That is not what the Tribunal did.
It is not clear whether the Minister argued in SZSFS that the Tribunal’s own observations of the applicant at the hearing might have provided a rational basis for its conclusion concerning the effect of the applicant’s condition on the evidence he gave at the hearing, a matter which was not the subject of either of the reports. In any event, in order to determine the issues in the present proceedings, it is necessary to consider the report of Dr Naidoo in a little more detail and the way in which the Tribunal dealt with it.
The applicant relied on the following parts of Dr Naidoo’s report:
·The patient gave a four year history of being always distracted;
·With regard to past psychiatric history the patient appears to have been treated with two types of anti-depressant … for at least two years. He saw a psychiatrist approximately three years ago. He was diagnosed as suffering with Psychotic Depression by the psychiatrist and treated accordingly;
·During 2011 he had contemplated suicide and was admitted to Liverpool Hospital as an involuntary patient;
·With regard to the present he (sic) patient is currently on an antidepressant. He apparently stopped the antipsychotic Zyprexa a few months ago.
·[the second named applicant] has been diagnosed as having an adjustment disorder with depressed mood because of the difficulties that her husband and her have been facing.
·[the first named applicant] was vague at times at giving detailed historical information.
·However he was oriented in time and place and there was no clouding of consciousness. He appeared to retain some insight into his difficulties.
·[according to the second named applicant, the first named applicant] was increasingly forgetful. … He felt that there were supernatural people living in the walls. He believed that the phone calls were being recorded and he would often misinterpret events as somehow being against him.
·[the second named applicant] felt that the Zyprexa had stopped working for him about four months ago and was not calming him down anymore.
·With regard to his symptoms over the last four years or so these include marked depression, anxiety, constant ruminatory negative thought patterns and persistent paranoid ideation combined on occasion with frank delusional ideation and auditory hallucinations. Together with these symptoms a recurrent symptom has been the patient’s inability to concentrate due to a preoccupation with his own thoughts. Taken together with his other symptoms one would have to consider whether his though (sic) difficulty represents a reflection of formal thought disorder which is a common accompaniment to psychotic disorders such as schizophrenia.
·From a formal diagnostic point of view there is little doubt that the patient suffers with a Major Depressive Disorder. He also has clearly had a Psychotic component to his illness which probably indicates the extreme level of stress that he has been experiencing in relation to the difficulties with his visa application combined with his fears for the safety of his daughters.
·The other issue in his case is the fact that he does appear not to have been optimally treated for his illness and there is the suggestion in the report from the psychiatrist involved that he may have not been entirely compliant with the medication being prescribed. In the case of psychotic illnesses this is unfortunately a very common phenomenon.
·He is going to need treatment for his depression and psychosis in the form of medication and psychotherapy over a minimum period of 18 months. He is definitely not fit to work at the present time and clearly has been unable to do so for an extended period. I do not believe he is likely to be fit to entertain the idea of serious work prior to the psychiatric treatment above being completed. With optimal treatment I don’t expect therefore he will be fit for work within a twelve to eighteen month period.
·He is not able to work and his financial situation seems unviable. It seems inconceivable that he would be able to access appropriate psychiatric care in Egypt.
·Given the patient’s present mental state and his adverse response to stressors I believe he is not fit to attend a hearing before the tribunal as it might seriously endanger his health.
·However, I do believe that the delay in processing his application is exacerbating his psychiatric disorder and if that could be expedited that would be of substantial benefit to the patient.
The Tribunal referred to Dr Naidoo’s report and the medical condition of the first and second applicants in several places in its statement of reasons. First, at [52] and [53] it considered the report and the applicant’s medical condition in the context of the applicant’s ability to give evidence at the hearing. Relevantly, the Tribunal stated:
[53] … I am satisfied that the measures put in place by the Tribunal to ameliorate the stress felt by the applicants was sufficient to ensure that their evidence could be given in a coherent manner that took into account the medical advice proffered. I am also satisfied that the diagnosed conditions with which they presented at the Tribunal were not wholly explanatory of the inconsistencies apparent during the hearing.
Next, the Tribunal stated at [75]:
While some inconsistencies (such as the year of the first-named applicant’s conversion or where the second-named applicant went to church) can be explained by medical conditions, there were inconsistencies in the applicants’ evidence of a nature that I do not accept were the result of medical conditions.
At [85] the Tribunal stated that it accepted that the applicant’s mental health condition would preclude him from practising as a dentist for some time but did not accept that that constituted serious harm.
Finally, it considered the question of treatment referred to by Dr Naidoo:
[86]… I have taken into account the letter from the consultant psychologist dated 7 September 2015 (folio 44) and note that the first-named applicant would not be fit to work for another 12 to 18 months. I am satisfied that this means that with treatment the first-named applicant would be able to return to work in Egypt in the reasonably foreseeable future.
[87]I also note the psychiatrist’s claim that ‘it seems inconceivable that he (the first-named applicant) would be able to access appropriate psychiatric care in Egypt’ however note that he has not indicated the basis on which he has made this finding. Independent country information indicates that, while it is not as good as the mental health system in Australia, facilities for addressing the first-named applicant’s mental health issues are available.
The Tribunal’s reasons in the present proceedings show that, contrary to the applicant’s argument, the Tribunal did not repeat the error identified by Logan J. Specifically the Tribunal did not reject any of the symptoms upon which Dr Naidoo’s diagnosis was based. With one exception, none of the Tribunal’s findings or reasons was inconsistent with any matter referred to by Dr Naidoo relevant to the applicant’s mental health. The exception concerned the availability of medical facilities in Egypt. In effect, the Tribunal rejected Dr Naidoo’s opinion on that matter in light of country information which it set out in its reasons. It was open to the Tribunal to do that. As the Tribunal noted, Dr Naidoo did not give any basis for his opinion about medical facilities in Egypt and that basis could not be inferred from any training or experience referred to in the report.
The second basis on which it was said that the Tribunal’s decision was illogical was that the Tribunal acted on Dr Naidoo’s report in a way that was not open to it. As already noted, Dr Naidoo expressed his view that the applicant’s health would be endangered by attending a hearing and then stated:
…
However I do believe that the delay in processing his application is exacerbating his psychiatric disorder and if that could be expedited that would be of substantial benefit to the patient.
…
The Tribunal referred to Dr Naidoo’s opinion about the hearing at [52] of its reasons and then said:
…
I note that in the following paragraph however, the psychiatrist also stated that the delay in processing the application was exacerbating his psychiatric disorder and that expediting his application would be of substantial benefit to the patient. It is not apparent from the context whether he meant by the term ‘expediting’ approving, or conducting the hearing. The applicant’s adviser also stated that the applicant’s appearance was against his advice, although a letter from the same legal firm on 19 September 2015 (folio 43) referenced the psychiatrist’s report and requested that the matter be processed as soon as possible.
The applicant argued that the only way in which the relevant part of Dr Naidoo’s report could be read, was that he was urging that the applicant be granted a visa as soon as possible. I disagree. The Tribunal was correct to say that there was some ambiguity in the psychiatrist’s statement. Dr Naidoo did not expressly say, “The applicant will only improve if he is given a visa” or anything like that. That could be inferred from the statement that Egypt did not have sufficient facilities to treat the applicant, but that was not so directly connected to this aspect of the report as to compel the inference.
In any event, any mistake in this respect was immaterial. First, an opinion that a visa applicant’s health will improve if they are given a visa has no logical impact on the duty of the Tribunal to review the delegate’s decision. Secondly, as the Tribunal noted, the applicant’s agent urged that the matter “be processed as soon as possible”. She did not say that the applicant should be granted a visa “as soon as possible”. Thirdly, the Tribunal’s consideration of this aspect of the report was in the context of its explanation of how the hearing was conducted. I have rejected the contention that the hearing was not in accordance with s.425 of the Act. The Tribunal’s explanation of the way in which it conducted the hearing does not affect that conclusion.
There is no illogicality or irrationality that affects the Tribunal’s decision.
Denial of procedural fairness
Finally, the applicant argues that he was denied the opportunity to have his evidence considered in light of his mental condition. The applicant’s medical condition and the potential for it to impact on his credibility as a witness, were both clearly issues on the review. The first Tribunal decision dealt with those issues (see [34] above) and they formed the basis of a successful appeal to the Federal Court of Australia. In submissions dated 23 October 2015, the applicant’s agent directly addressed the issues and sought to avoid them by focussing on the FGM claims. That way, it was said, the issues of “personal credibility or panic or other distress need not be considered in these proceedings.” That attempt was short-lived, as the applicant maintained his other claims at the hearing and, as a consequence, the Tribunal had to deal with them. The applicant’s adviser was present at the hearing.
In short, this argument is rejected because the applicant had every reasonable opportunity to address the issues of his mental condition and credibility.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 November 2016
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