Fatehi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 31
•14 January 2022
Fatehi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 31 (14 January 2022)
Division:GENERAL DIVISION
File Number: 2019/7403
Re:Alireza Fatehi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:14 January 2022
Place:Sydney
The applicant’s objection to the inspection orders is refused. The respondent is granted access to the documents produced by Dr Pishyar in full.
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Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – summons to produce documents issued to the applicant’s treating psychologist – objection to inspection orders by the applicant – legal professional privilege claimed – purpose of the third party communications – applicant’s objection refused – respondent granted full access
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Clifford v Vegas Enterprises Pty Ltd (No 3) [2010] FCA 287
Dingwall v Commonwealth of Australia (1992) 39 FCR 521
Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; (2007) 97 ALD 788
Trade Practices Commission v Sterling [1979] 36 FLR 244
SECONDARY MATERIALS
Heydon, J D, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017)
REASONS FOR DECISION
Senior Member A Poljak
14 January 2022
By application dated 13 November 2019, Alireza Fatehi, the applicant, seeks review of the decision of a delegate of the respondent made on 8 November 2019 to refuse to grant his application for Australian citizenship by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (Act). The delegate was not satisfied that the applicant was a person of good character as required by s 21(2)(h) of the Act and found that the applicant had provided false and/or misleading information to the Department on multiple occasions and that there were unanswered questions relating to his criminal history (substantive matter).
A significant issue in the substantive proceedings is whether the applicant’s medical conditions have impacted on his mental capacity and if so, to what extent. As such, the applicant underwent a psychological assessment by Dr Banks on 14 April 2021 and on 21 May 2021, Dr Banks provided a psychological evaluation report of the applicant.
The applicant’s clinical psychologist, Dr Reza Pishyar, provided a report in these proceedings dated 2 September 2021.
On 19 October 2021, summons to produce documents were issued to Dr Reza Pishyar. Documents were produced in accordance with the summons on 2 November 2021 and on 3 November 2021, inspection orders were made.
These interlocutory proceedings concern the applicant’s objection to the inspection orders as he has claimed legal professional privilege in relation to aspects of a document provided by Dr Pishyar entitled “Client Summary Report” (Document). The Document appears to record the applicant’s consultations with Dr Pishyar. The applicant states that he does not waive legal professional privilege.
The respondent has pressed his application to inspect the Document in full.
The applicant contends that proceedings before the Tribunal attract common law legal professional privilege, namely communications made in relation to seeking or receiving legal advice; and communications made in relation to pending or anticipated proceedings (see Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; (2007) 97 ALD 788).
The applicant also relies on Dingwall v Commonwealth of Australia (1992) 39 FCR 521 (Dingwall), in which a subpoena was issued to a clinical psychologist who was retained by the respondent to give expert evidence. Foster J held that source material provided to the psychologist and used in the preparation of evidence tendered in the proceedings attracted litigation privilege which had not been waived.
In these proceedings, litigation privilege is not established on the evidence.
In Trade Practices Commission v Sterling [1979] 36 FLR 244 (Sterling), Lockhart J identifies various classes of documents in which legal professional privilege extends. Relevantly, third party communications which attract such a privilege are said to include:
“(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action.” [Emphasis added]
Unlike the communications in Dingwall, in these proceedings, the Document does not fall within the categories of third party communications identified in Sterling. The unredacted parts of the Document shed some light on the redacted notes. In context, the communications record the applicant’s feelings, the provision of education and supportive counselling, and his focus on health and weight loss.
Much depends on the purpose of the communications. It is not clear from the clinical notes contained in the redacted Document that the communication was made for another purpose other than for the applicant to obtain medical services from Dr Pishyar, who is the applicant’s treating psychologist. I am not satisfied that the redacted communications contained in the Document include sensitive or privileged material for the dominant purpose of litigation.
In any event, privilege claimed over Dr Pishyar’s clinical notes has been impliedly waived. The applicant has filed and served the report of Dr Pishyar in which he refers to records which he relied upon when making his report (see: Heydon, J D, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017 at [25010]).
Additionally, it would be unfair to the respondent for the applicant to only disclose part of the documents going to this issue (Clifford v Vegas Enterprises Pty Ltd (No 3) [2010] FCA 287 at [10]). The significant issue in the substantive proceedings relates to the applicant’s mental capacity and whether he had any impairment at the time he made relevant applications to the respondent. Communications between the applicant and Dr Pishyar for the purpose of obtaining medical treatment and care is plainly relevant, particularly when Dr Pishyar expressly considered these notes when making his report produced in these proceedings.
For these reasons, the applicant’s objection to the inspection orders is refused. The respondent is granted access to the documents produced by Dr Pishyar in full.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 14 January 2022
Date of interlocutory hearing: 16 December 2021 Counsel for the Applicant: R Chia Counsel for the Respondent: B Kaplan Solicitors for the Respondent: C Burke, Sparke Helmore Lawyers
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