FHN17 v Minister for Immigration - [2018] FCCA 3639

FEDERAL CIRCUIT COURT OF AUSTRALIA

FHN17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3639

Catchwords:
MIGRATION – Protection visa – tribunal failed to properly consider a neuropsychological report in respect of applicant – tribunal erroneously concluded applicant was competent to give evidence – treated applicant as a vulnerable witness – applicant’s intellect such that answers to any but the most basic questions likely to be suspect – constitutional writs issued.

Legislation:

Migration Act 1958, sub‑ss.36(2)(a), (aa)

Cases cited:
BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49
Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
MZAQB v Minister for Immigration and Border Protection [2017] FCCA 161
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant:

FHN17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2633 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

16 November 2018

Date of Last Submission:

16 November 2018

Delivered at:

Melbourne

Delivered on:

12 December 2018

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the First Respondent:

Mr C McDermott

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

A writ in the nature of certiorari issue directed to the second respondent quashing its decision dated 30 October 2017 (in case number 1714613).
A writ in the nature of prohibition issue directed to the first respondent restraining him by himself, his employees, officers, delegates or agents, from acting upon or giving effect to the decision made by the second respondent on 30 October 2017.
A writ in the nature of mandamus issue directed to the second respondent requiring it to rehear and determine according to law the application for review the decision of the delegate of the first respondent.
The first respondent pay the applicant’s costs as agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2633 of 2017

FHN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

The issue in this case is whether the Administrative Appeals Tribunal erred in considering the merits review that it undertook, having regard to the applicant’s impaired mental condition. The tribunal addressed this case recognising the applicant’s impairment yet the tribunal did not consider that the applicant’s mental fabric in any way compromised his participation in the hearing.
Before me the applicant said he was impaired to such a degree that he was unable to meaningfully participate in the hearing. He relied on certain medical evidence to support that contention. The minister recognised the applicant’s intellectual issues but said they did not impair him in the manner the authorities observed so as to render him unable to meaningfully participate in the hearing. The minister said the facts of this case were wholly different to those in my decision in MZAQB v Minister for Immigration and Border Protection[1] such that the result should likewise be different.
[1] [2017] FCCA 161

Synopsis

For the reasons that follow, in my judgment the tribunal did in fact fall into error with the consequence that this application for judicial review succeeds and, to the extent that the applicant has incurred any, the minister must pay his costs.

Some relevant details

The applicant is a citizen of Italy. Until 2014 the applicant held a class BF transitional (permanent) visa. On 9 June 2016 the applicant applied for the protection visa in issue in this case. The applicant’s protection claims were recorded in a statutory declaration he made on 9 June 2017. On 4 July 2017 the minister’s delegate refused the applicant the protection visa he sought. In essence, the minister’s delegate refused to grant the applicant a protection visa because the applicant was a citizen of Italy. The delegate concluded that there was no evidence that the applicant would be pursued by his identified persecutors within the European Union or that he would be denied effective medical treatment, in Italy or throughout the European Union as he claimed.
The applicant applied to the tribunal for a merits review of the delegate’s decision. He was represented by his authorised representative. On 11 August 2017 the tribunal invited the applicant to appear before it on 23 August 2017. On 21 August 2017 the applicant’s representative requested by email an adjournment of the hearing scheduled for 23 August 2017 on the basis that the applicant intended to obtain an up‑to‑date psychiatric report and that such report would not be available for up to eight weeks from that date. On 22 August 2017 the tribunal told the applicant’s representative that the hearing would proceed the following day. No reasons were given at that time. However, in the tribunal’s reasons for affirming the delegate’s decision the tribunal stated at paragraph 15 that the issue of providing additional time for the provision of the report could be canvassed at the hearing.
Also on 22 August 2017 the applicant’s representative provided the response to hearing invitation completed by the applicant on 16 August 2018 in which the applicant’s mother and father were identified as witnesses for the applicant. By separate letter on the same day the applicant’s representative wrote to the tribunal asking for the tribunal’s permission for the applicant to appear in person so he could explain his position face to face rather than by video link.
The hearing proceeded by video link on 23 August 2017. Ultimately, the tribunal affirmed the delegate’s decision. It is instructive to examine the more important findings of the tribunal, those being set out below.
Between paragraphs 10 and 12 of its reasons the tribunal identified the central elements of the applicant’s claims to engage Australia’s protection obligations. It said that the Calabrian mafia would try to harm him because his paternal family owed them money from several decades ago and because he would be particularly vulnerable upon return to Italy due to his mental health conditions (to the extent of being unable to survive without appropriate family and state support).
Between paragraphs 13 and 20 of its reasons the tribunal set out the evidence it had regard to in conducting the review.
At paragraph 17 of its reasons the tribunal elected to treat the applicant as a vulnerable witness and made several observations about the applicant’s responses during the course of the hearing. The tribunal’s observations about the applicant’s responses led it to conclude at paragraph 17 of its reasons that the applicant was competent to give evidence at the hearing and he had a full opportunity to put forward his story and arguments.
Under the heading credibility and the sub‑heading the applicant’s mental health, between paragraphs 23 and 26 of its reasons the tribunal had regard to what it said were the key features of the report. Having considered what it called those key features at paragraph 27 of its reasons the tribunal accepted that the applicant has “major psychological problems” and –
significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance to be able to manage the demands of living in an unfamiliar community in Calabria, Italy.
The tribunal also accepted at paragraph 27 of its reasons that the applicant would need regular psychiatric treatment and medication essentially for the rest of his life. Contrary to the applicant’s claim, for the reasons it gave at paragraph 28 the tribunal did not accept that the applicant would be isolated in Calabria with no Italian language skills. It did not accept that the applicant would be excluded from accessing Italian government assistance and services at paragraph 29 of its reasons. It had regard to country information that it canvassed with the applicant at the hearing apropos the Italian health system as it potentially related to the applicant’s circumstances at paragraph 30 of its reasons. The tribunal relevantly concluded at paragraph 31 of its reasons as follows –
The Italian health and mental health system is national, comprehensive and although it is considered to have some problems is well regarded. Based on the material before the Tribunal, the applicant who is an Italian national who has not lived in Italy since 1990 will be able to access health and mental health services and medication in Calabria and Italy. Despite not having lived in Italy since 1990 he will have the same access to Italian government services including mental health services as other Italian nationals. As well, the applicant has not claimed despite ample opportunity, and there is no material before the Tribunal to suggest, that the applicant’s cognitive impairments and psychological problems and treatment will attract the adverse attention of the Italian authorities or of the Calabrian community such that they would seek to persecute him.
Under the heading credibility and the sub‑heading relating to the applicant’s fear of the mafia in Italy, the tribunal set out the applicant’s responses and the responses of his parents to various issues canvassed by the tribunal relating to the credibility of the applicant’s claims to fear harm on this basis. Relevantly –
a)the tribunal noted that the applicant had no personal experience of harm arising from the mafia as he was relaying the story that his parents had told him;[2]
b)the tribunal found it difficult to accept that the applicant had only been informed by his parents of the murders and surrounding circumstances of several of his close relatives until recent years and the tribunal also found it difficult to accept that, if the applicant was at risk of harm from the mafia, his parents would have kept him in the dark about all of this throughout his life until recent years;[3]
c)the applicant’s vague evidence and claimed lack of knowledge about what had occurred in Calabria raised concerns for the tribunal about his story and credibility as a witness;[4]
d)the tribunal considered that a different account existed between the applicant and his father as to who had borrowed money from the mafia and, while taking into account the applicant’s mental health issues, the tribunal considered that the difference about such a significant and memorable element of the story led it to have strong concerns with the applicant’s narrative and evidence;[5] and
e)the applicant’s father’s and mother’s claimed lack of interest in the mafia in Australia and lack of any attempts to inform themselves as to whether the mafia were in Australia was not credible, and was not consistent with and did not support their claims to have had a very great fear of mafia retribution against the whole family[6] and similarly the tribunal found it difficult to accept (and therefore it was not credible) that the applicant’s father and mother had a lack of knowledge or suspicion of the mafia being in Australia at all.[7]
[2] Ibid 122-23 [32]
[3] Ibid 123 [33]
[4] Ibid [34]
[5] Ibid [35]
[6] Ibid 124 [37]
[7] Ibid 124-25 [39]
Under the heading conclusion – credibility, at paragraphs 40 and 41 the tribunal concluded that the applicant’s evidence about the long‑standing enmity of the mafia and how it came about was not convincing and that the applicant’s parents were not credible witnesses (thereby rejecting their evidence about what had occurred in Calabria and about the long‑standing enmity of the mafia). The tribunal therefore did not accept that the applicant’s family had fled Italy in 1990 because they feared mafia retribution or that close relatives had been murdered for the reasons claimed or that the applicant would be targeted by the mafia or that he would need state protection.[8] The tribunal then set out the specific aspects of the applicant’s factual claims that it accepted and those that it rejected.[9]
[8] Ibid 125 [42]
[9] Ibid 125-26 [43]-[44]
Between paragraphs 45 and 52 the tribunal reiterated several of its earlier conclusions about the applicant’s claims. It concluded that the applicant did not meet the requirements under the rubric of the Refugees Convention. In particular, the tribunal concluded that the applicant would not attract any adverse attention arising from his personal circumstances[10] and would not be targeted by the mafia or similar group or their agents.[11] The tribunal concluded[12] –
I do not accept that in Calabria or anywhere in Italy in the reasonably foreseeable future there is a real chance he will suffer serious harm for any reason he has claimed, or for reason of his past conduct in Australia, or identity as a Calabrian man returning from Australia after a long residence, or for reason of his cognitive impairments and psychological problems and treatment- either when these things are considered individually or cumulatively.
[10] Ibid 126-27 [48]
[11] Ibid 127 [49]
[12] Ibid
At paragraph 50 of its reasons the tribunal found it unnecessary to consider whether the applicant could relocate within Italy or live somewhere else within the European Union.
Under the rubric of complementary protection the tribunal found that the applicant would not be without family if he returned to Calabria[13] and made observations about the applicant’s likely capacity to work.[14]
[13] Ibid [54]
[14] Ibid 127-28 [55]
At paragraph 56 of its reasons the tribunal concluded that the applicant would be able to receive the treatment and medication he required in Italy and that the Italian health system was appropriate and accessible for the applicant. The tribunal also reiterated its conclusion that the applicant would not be the subject of any adverse attention arising from his personal circumstances[15] including from the mafia.[16]
[15] Ibid 128 [56]
[16] Ibid [57]
The tribunal found that the applicant did not face a real risk of significant harm as defined.[17]
[17] Ibid [58]
The tribunal concluded that the applicant was not eligible for the grant of a protection visa on the basis of s 36(2)(a) or s 36(2)(aa) of the Migration Act[18] and therefore affirmed the minister’s delegate’s decision.[19]
[18] Ibid 129 [62]-[64]
[19] Ibid [65]
Between paragraphs 59 and 61 of its reasons the tribunal explained why it did not propose to refer the applicant’s circumstances to the minister for potential consideration of an intervention power.

In this court

The applicant relied on one ground only in his application to this court. It was as follows –
The Second Respondent constructively failed to exercise jurisdiction by not properly taking into account a relevant consideration, namely the effect of the findings of the report of the neuropsychologist, which stated that the Applicant was intellectually disabled.
The Applicant would not have the capacity to avail himself of any services that were available to him in Italy, and would be at risk.
The report of the neuropsychologist stated that the Applicant had, inter alia, an intellectual disability. This disability, together with his severe mental illnesses, an inability to speak Italian and a lack of any sort of familial support, would make it near impossible for him to avail himself of any sort of assistance. The drug regime that has stabilized his schizophrenia here in Australia would be at risk if there were not continuity of care.
The Applicant’s intellectual disability and sever mental illness would also make him more vulnerable to harm due to the blood feud that caused his parents to leave Italy.
The minister said the applicant’s ground was without merit.
Before me I permitted the applicant’s mother to speak for her son. Her son, the applicant, conducted himself properly it seemed to me. On behalf of the minister Mr McDermott of counsel allowed a degree of latitude, quite properly, to the mother. However, when the mother’s submissions addressed factual matters on what will happen if the applicant were removed to Italy Mr McDermott interjected, arguing that the expression of fact about a future inevitability went beyond the role of a McKenzie friend. He was correct so I brought the mother’s submissions to a point within permissible boundaries. It was the applicant who told me that the mafia would kill him if the applicant were to be removed from Australia.
The question for me was whether the tribunal’s finding about the applicant’s mental state was open having regard to the report from Dr Louise Bannister dated 13 October 2017.
In short, in my view it was not.
Let me explain why.
Dr Bannister’s report did not attach a curriculum vitae yet the author signed the report above her description as a clinical neuropsychologist. She gave her qualifications as a doctor of clinical neuropsychology. The applicant asked me to read Dr Bannister’s report. The tribunal’s reasons at paragraph 13 revealed that the report was before the tribunal. Mr McDermott did not complain about my reading the report. The more important issues that emerged from the report were as follows (with citations omitted) –
Assessment Results:
[The applicant’s] overall intellectual functioning fell in the ‘Extremely Low’, or ‘Intellectually Disabled’ range (Full Scale IQ =55, 0.1 percentile). With regards to verbal intellectual skills, these fell within the ‘Extremely Low’ range overall, primarily due to extremely poor performance on a verbal abstract reasoning task. He performed in the ‘Borderline’ range on measures of vocabulary (knowledge of word meanings) and general knowledge.
[The applicant’s] basic auditory attention capacity was at ‘Extremely Low’ levels, and he was able to mentally hold between 3 to 4 units of information (a series of numbers) in his mind at once. Working memory capacity was at similar levels, with [the applicant] able to mentally reverse at most 3 digits, and mentally sequence 4 to 5 digits. His speed of information processing on a number of timed tasks also fell at ‘Extremely Low’ levels.
With regards to learning and memory, [the applicant’s] new learning of information was also ‘Extremely Low’. On tasks involving learning a list of words, or short stories, which had been read to him, he exhibited extremely poor immediate recall of the information. He also showed a tendency to produce “intrusion errors”, in other words providing extra incorrect information that had not actually been presented. …
…
… [the applicant’s] planning and organisation skills were – as noted above – poor. … Idea generation or verbal fluency (quickly producing different words beginning with a given letter or within a given category) was at ‘Borderline’ levels and again he made a number of uncorrected errors. Verbal abstract reasoning was at ‘Extremely Low’ levels and [the applicant] exhibited a very concrete response style, having great difficulty identifying and articulating connections between various objects or concepts. On a divided attention task involving sequencing and set-shifting, he again performed at ‘Extremely Low’ levels and made one error.
With regards to basic literacy and numeracy, [the applicant’s] single-word reading skills were at ‘Extremely Low’ levels …
…
Summary and Recommendations:
[The applicant] is a 34-year-old man who participated in neuropsychological assessment on 5/10/2017 at Maribyrnong Immigration Detention Centre. The assessment revealed that his overall intellectual functioning fell within the ‘Extremely Low’ or ‘Intellectually Disabled’ range, in other words below the 1^st percentile for his age group. …
… [The applicant] has a long-standing history of learning difficulties, limited educational and occupational achievement, and difficulty managing more complex aspects of day-to-day functioning when living in the community. …
…
Overall the current assessment revealed that [the applicant] has significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance to be able to manage the demands of living in a familiar community (i.e. Melbourne, Australia), let alone in an unfamiliar foreign country.
…
Some potential implications of [the applicant’s] cognitive profile include:
-… significant learning difficulties and poor literacy in English [and] extreme difficulty learning a second language to any useful degree.
-… a concrete and unsophisticated approach to reasoning and problem‑solving. In new situations, he would be likely to have great difficulty thinking flexibly and generating solutions to problems. …
-… It would be expected that will continue to need external support in future to manage tasks such as attending appointments, administering medication, and managing complex activities of daily living (e.g. paying bills).
-[The applicant] will have difficulty learning new information and remembering it later on. …
-Due to executive functioning difficulties, he would be expected to have trouble planning, monitoring and adapting his behaviour, identifying and correcting errors, and inhibiting responses (impulse control).
-[The applicant] may be slow to process information, have a limited capacity …
Further recommendations:
-Repeat neuropsychological assessment …
-Occupational therapy …
-… opinion from a neurologist …

The tribunal made reference to the applicant’s psychological circumstances in several places of its reasons. The minister relied on the following –
a)the tribunal’s election to treat the applicant as a vulnerable reference;
b)the tribunal’s comment at paragraph 17 that the applicant’s answers to questions led the tribunal to conclude that the applicant was competent to give evidence;
c)the tribunal’s conclusion that the applicant had a full opportunity to put forward his story and arguments; and
d)the tribunal’s acceptance that the applicant had major psychological problems.
The tribunal went on to address the applicant’s claims to fear harm on the basis of his credibility. In essence, the tribunal did not regard the applicant’s claims to fear as being credible. It assessed his claims as if the applicant was a person of ordinary intellectual competence. In doing that the tribunal found –
a)that the applicant had no personal experience of harm at the hands of the mafia;
b)the applicant’s evidence was vague;
c)differences emerged between the applicant’s version of events and the version of events as given by the applicant’s father; and
d)the applicant’s evidence about his longstanding enmity of the mafia and how it came about, which it said was not convincing.
In short, the tribunal did not believe the applicant in respect of his claims to fearing harm.

The psychological evidence in this case

As mentioned above, the tribunal stated in its reasons that it had specifically considered the 13 October 2017 report from Dr Louise Bannister. A variety of critical issues arose from that report. It is necessary to set them out below.
First, Dr Bannister narrated the applicant’s psychiatric history. She said it involved the applicant’s chronic paranoid schizophrenia characterised by persistent auditory hallucinations and persecutory ideation. Dr Bannister reported that the applicant was a gambling and alcohol addict with a likely overlapping diagnosis of obsessive compulsive disorder as well as having a history of substance abuse including cannabis and alcohol. Dr Bannister stated that the applicant saw a psychiatrist on a monthly basis.
Dr Bannister addressed the applicant’s developmental, education and employment history. So far as his education was concerned Dr Bannister said on page two of her report that the applicant reported that he achieved an ENTER score of 11 for his year 12 examinations and at school that the applicant needed an aid for spelling, reading and maths.
Dr Bannister addressed the applicant’s functioning and that the applicant told her that he had difficulty concentrating, that his short-term memory was defective and that his motivation was low.
So far as the applicant’s presentation to Dr Bannister was concerned Dr Bannister referred to the applicant’s difficulties for him when his auditory hallucinations talked directly at the applicant rather than the voices he heard talking to one another. Dr Bannister said the applicant was able to understand simple task instructions but he had difficulty understanding tasks that involved several rules. She said that on testing the applicant did not check his own performance or identify his own mistakes.
After administering 10 separate tests and collating the results of those tests Dr Bannister provided an assessment of those test results. The assessment was recorded on pages four and five of Dr Bannister’s report. In essence, Dr Bannister reported as follows –
a)the applicant’s overall intellectual functioning fell in the category of extremely low or intellectually disabled;
b)the applicant’s verbal intellectual skills fell in the range of extremely low;
c)the applicant’s measures of vocabulary was borderline;
d)his auditory attention capacity was extremely low;
e)his spread of information processing on a number of timed tasks was extremely low;
f)the applicant’s learning and memory were extremely low, he had extremely poor immediate recall of learning of list words with the result that he produced intrusion errors and when he was presented with a visual problem solving task he had significant difficulty understanding the task requirement and he performed in the extremely low range;
g)the applicant’s skills in planning, organising and regulating complex behaviour were poor with verbal abstract reasoning being at an extremely low level and in respect of a divided attention task he performed at levels that were extremely low; and
h)his literacy and numeracy skills were at extremely low levels.
Dr Bannister singled out for mention the applicant’s longstanding history of learning difficulties, his limited education and his occupational achievements and difficulties in managing more complex aspects of day‑to‑day functioning when living in the community. Dr Bannister said on page six of her report that the applicant’s current assessment revealed that he had significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance to be able to manage the demands of living in a familiar community in Melbourne Australia let alone in a foreign country. That was, so Dr Bannister reported, in addition to his well‑documented history of chronic schizophrenia for which he would be expected to need regular and ongoing psychiatric treatment and monitoring. And even when that was provided the applicant continued to experience residual psychotic symptoms.
Dr Bannister addressed the implications of the applicant’s cognitive profile. Those implications included the following –
a)the applicant had significant literacy issues in his primary language, English, that he spoke no Italian and would likely have extreme difficulty learning a second language to any useful degree;
b)based on his current assessment the applicant would be likely to encounter great difficulty thinking flexibly in reasoning and in problem solving;
c)he would continue to need external support to manage tasks such as attending appointments, administering medication and paying bills;
d)he would encounter difficulty learning new information and remembering it;
e)he would be expected to have trouble planning, monitoring and adapting his behaviour, identifying and correcting errors and controlling impulses; and
f)he will have limited capacity to focus on more than one task at once.
Dr Bannister recommended repeat neuropsychological assessments, undertaking occupational therapy and the obtaining of a neurologist’s opinion.
Against that backdrop the tribunal heard the applicant’s application for merits review. The tribunal treated the applicant as a vulnerable witness. The tribunal member asked the applicant whether the applicant was able to talk about his story to which the applicant answered saying that he was. The tribunal member recorded in paragraph 17 of the tribunal’s reasons that the applicant appeared to focus on what he was asked and “on the whole he gave coherent answers and explanations” (the tribunal’s words).
For reasons I was unable to comprehend the tribunal member put country information to the applicant (although the tribunal member did not say precisely what country information he put to the applicant) to which, so the tribunal member said, the applicant “appeared to take in what I had said and then gave relevant comments” (the member’s words). Based on the way events unfolded to that limited extent, the tribunal member said that the member assessed the applicant as being competent to give evidence at the hearing and that the applicant had a full opportunity to put forward his story and argument.
Pausing there, and before assessing the propriety of the tribunal member making credibility findings based on the applicant’s answers to questions put to him, it is relevant to examine the consequence of the tribunal adopting the procedure to that point in the way it did.
The starting point is the chronological manner in which the tribunal permitted the hearing before it to unfold.
Dr Bannister’s report was before the tribunal. The member said as much at paragraph 13 of its reasons. The tribunal’s reasons did not reveal that the member read the report prior to conducting the hearing or during the hearing itself. In terms of dates, the hearing was conducted on 23 August 2017 and the tribunal produced its reasons on 30 October 2017.
While there was no specific basis to so conclude, given the absence of any reporting in its reasons of the member putting specific passages of Dr Bannister’s report to the applicant, on the balance of probabilities it is more likely than not that the member read and digested the considerable details of Dr Bannister’s report after the hearing and during a period when the tribunal’s decision was reserved. That is the most likely scenario. Otherwise, it made no sense for the tribunal to put matters of country information to the applicant in circumstances where Dr Bannister stated that the applicant’s comprehension skills were extremely poor.
At all events, the tribunal proceeded upon being told that the applicant had what the tribunal recorded at paragraph 17 of its reasons as mental illnesses, the upshot of which was the tribunal’s treatment of the applicant as a vulnerable witness. No details of the mental illnesses were given or recorded, nor was the reason for the tribunal’s willingness to so readily treat the applicant as a vulnerable witness upon being told in very general and imprecise terms that he had mental illnesses.
Be that as it may, the tribunal seemed to be satisfied the applicant was competent to give evidence. The member appeared to reach that conclusion because the applicant –
a)was able to talk about his story;
b)appeared to focus on what he was asked and, to use the words in paragraph 17, gave coherent answers and explanations;
c)appeared to take in what was asked, what the member said was in respect of country information and the applicant then gave relevant comments; and
d)answered affirmatively whether he understood the proceedings and what was being asked of him.
Importantly, the tribunal’s reasons did not descend to the detail of Dr Bannister’s report. That was the case notwithstanding that the tribunal had Dr Bannister’s report before it. Specifically, the tribunal did not refer to the applicant’s history of chronic paranoid schizophrenia or his auditory hallucinations (described by Dr Bannister as “hearing voices”). The tribunal did not mention, question, probe or even recognise that Dr Bannister’s report revealed that the applicant’s intellectual functioning overall was extremely low or that he was in the range of being intellectually disabled.
Nor did the tribunal recognise Dr Bannister’s conclusions that the applicant’s basic literacy and numeracy skills were extremely low. The tribunal nevertheless asked the single question of whether the applicant was able to talk about his story to which the tribunal recorded the applicant as saying that he was. That was one matter on which the tribunal relied in support of the tribunal’s conclusion that the applicant was competent to give evidence.
The tribunal put country information to the applicant. That was a standard task when addressing a protection visa application. Yet in respect of this applicant, Dr Bannister had reported that the applicant had a tendency to produce intrusion errors by providing extra incorrect information that had not actually been presented. The tribunal did not describe the country information with which the applicant was presented. However, in view of the applicant’s tendency to produce intrusion errors, the utility or even validity of the applicant’s responses to whatever country information was put to him was of dubious value. The tribunal made no mention of that.
The tribunal made no reference to the applicant’s verbal abstract reasoning being extremely low and that he had a concrete response style illustrating a great difficulty identifying and articulating connections between concepts.
More generally, the tribunal failed to address Dr Bannister’s conclusions that the applicant’s performances across most cognitive domains fell. Dr Bannister mentioned in several places in her report that the applicant’s cognitive functioning was poor. Dr Bannister’s report used wording such as the applicant’s “longstanding learning/intellectual disabilities”.
Had the tribunal properly understood the impact and ramifications of the material in Dr Bannister’s report, the tribunal should not have concluded that the applicant was competent to give evidence, still less that he was to be critically assessed for errors and inconsistencies in the answers he gave. The applicant’s intellect was such that his answers to anything but the most basic question were likely to be suspect. Where he gave a response to a question predicated on the processing of information in a flexible manner he was most likely to encounter great difficulty, to use Dr Bannister’s words. To the extent that he gave answers that were unstructured or unconnected to other evidence or which were inconsistent with other evidence, his mental circumstances of which Dr Bannister wrote were most likely to be the basis of those answers.
In my view the tribunal erred in analysing the applicant’s evidence on the basis that the applicant was a person of ordinary competent intellectual capacity. He was very far from that. In my view the tribunal fell into error in this case.
In reaching that conclusion I have carefully examined the reasoning of decisions that bind me. They include Minister for Immigration and Multicultural and Indigenous Affairs v SCAR,[20] Minister for Immigration and Citizenship v SZNVW[21] and SZFDE v Minister for Immigration and Citizenship[22] plus the recent decisions of the High Court in Minister for Immigration and Border Protection v SZVFW[23] as well as the decision of the Full Court of the Federal Court of Australia in BJB16 v Minister for Immigration and Border Protection.[24] In my own decision in MZAQB I drew the learning together as it stood in February 2017.
[20] (2003) 128 FCR 553
[21] (2010) 183 FCR 575
[22] (2007) 232 CLR 189
[23] (2018) 92 ALJR 713
[24] [2018] FCAFC 49
On behalf of the minister, Mr Christopher McDermott of counsel conducted his client’s case with commendable care, recognising the sensitivity of the case and the need to treat the applicant in a particular manner. May I say that Mr McDermott discharged his obligations as counsel with precision and great skill for which I record my gratitude.
I do not agree that the applicant sought to agitate an impermissible merits review in this case as the minister contended. At its core in this case was the applicant’s capacity. In SCAR, the court held that jurisdictional error is demonstrated when an applicant is unable to understand the proceeding before the tribunal. In this case, by reason of the matters on which Dr Bannister reported, I am satisfied that the applicant had no real appreciation of the matters undertaken before the tribunal. It follows, applying the reasoning in SCAR, the tribunal fell into jurisdictional error.
Constitutional writs must issue. The minister must pay the applicant’s costs as agreed.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date: 12 December 2018

Corrections

The judgment has been amended to comply with section 91X of the Migration Act 1958.