Gjonej v Minister for Immigration
[2017] FCCA 154
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GJONEJ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 154 |
| Catchwords: MIGRATION – Application for judicial review following cancellation of bridging visa pursuant to section 116(1) Migration Act – conviction for cultivating cannabis – applicant suffers from mental illness –whether applicant had real and meaningful opportunity to take part in Tribunal hearing – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pts.5, 7 ss.116, 360, 363, 425, 427, 474 Migration Regulations 1994 (Cth), reg.2.43 |
| Cases cited: Gjonej v Minister for Immigration and Border Protection [2015] FCA 159 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | ERVIS GJONEJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 95 of 2016 |
| Judgment of: | Judge Young |
| Hearing date: | 27 September 2016 |
| Date of Last Submission: | 5 October 2016 |
| Delivered at: | Darwin |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| Counsel for the Applicant by videolink: | Mr Leyden |
| Solicitors for the Applicant: | Leyden Law & Migration |
| Counsel for the Respondents by videolink: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 1 April 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 95 of 2016
| ERVIS GJONEJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application arises out of a decision of the Minister’s delegate made on 19 October 2015 to cancel the applicant’s Class WE Subclass 050 Bridging (general) visa. The visa was cancelled pursuant to section 116(1)(g) of the Migration Act 1958 (the Act) after the applicant was charged with cultivating cannabis and other offences[1].
[1] According to regulation 2.43(1)(p) of the Migration Regulations 1994 being charged with or convicted of an offence against a law of the Commonwealth, a State, a Territory or another country is a ground for visa cancellation under section 116 (1)(g) of the Act. See Tribunal reasons, paragraph [46], Court book page 149
The applicant subsequently pleaded guilty to a charge of cultivating cannabis in the Adelaide Magistrates Court on 7 March 2016. According to the magistrate’s sentencing remarks the applicant cultivated 19 cannabis plants in a hydroponic setup in a suburban house. He was convicted of the offence and, after the magistrate had regard to the 5 months the applicant had spent in custody, fined $10. Items seized by police including money and a mobile phone were ordered forfeited to the Crown.
The Administrative Appeals Tribunal (the Tribunal) affirmed the delegate’s decision on 30 March 2016. The applicant now seeks judicial review of the Tribunal’s decision.
It was not in issue that the relevant decision is a privative clause decision under section 474 of the Act and may only be reviewed on the ground of jurisdictional error.
I should note that the lawyers who represented the applicant at the Tribunal hearing ceased to represent the applicant in May 2016 and filed a notice of withdrawal. When the matter came on for hearing on 14 September 2016 Mr Leyden, who had been very recently instructed on behalf of the applicant, sought an adjournment to properly prepare his submissions. Mr Leyden told me that he would be ready in a relatively short time and, over the first respondent’s objection, I allowed an adjournment to 27 September 2016 when the hearing resumed.
Background
The history of this matter is relatively complex and it is useful to set out some parts of it. The cancelled visa was a bridging visa. The requirements of this visa are met, relevantly, where an applicant has applied for a substantive visa and the applicant has applied for judicial review of a decision to refuse to grant the visa and the proceedings (including any proceedings on appeal) have not been completed.
The relevant substantive visa sought by the applicant was a partner or spouse visa. That application was refused by the Migration Review Tribunal on 14 November 2013, an application for review of that decision was dismissed by this court on 24 October 2014, an appeal against that decision was dismissed by the Federal Court on 4 March 2015 and special leave to appeal was refused by the High Court on 17 December 2015.
In general terms, the relevant factual issues before the Migration Review Tribunal in those proceedings were about the length and genuineness of the applicant’s claimed de facto relationship. The issues raised on appeal included whether by reason of his mental illness Mr Gjonej was given a proper hearing.
It would appear that the requirements of the bridging visa which is the subject of the present proceedings are no longer met and were not met at the time of the Tribunal hearing. The Tribunal recognized this and said that the applicant’s “… options for remaining in Australia are very narrow (and depend on a Ministerial intervention request).” It might be thought that the present application for judicial review is moot but the Minister took no particular point about this and the applicant did not address it.
The applicant is an Albanian citizen. He has made various applications under the Act. Allsop CJ summarised them as follows[2]:
Mr Gjonej has some history of migration applications. He had arrived in Australia in June 2009 on a false Italian passport. He lodged a spouse visa application in 2009 on the basis of relationship with a woman whom he met at Rome airport. This was later withdrawn. He applied in February 2010 for a protection visa, which was refused. He sought intervention of the Minister which was also refused. On 21 June 2011, he lodged the visa application that is the subject of this appeal.
[2] Gjonej v Minister for Immigration and Border Protection [2015] FCA 159 at [7]
As noted above, the proceedings in relation to the visa referred to by Allsop CJ were completed on the refusal of special leave by the High Court.
The applicant has a history of mental illness. A psychiatrist who treated him, Dr Stephan, described the illness in a letter to the applicant’s solicitors dated 1 September 2015:
Mr Gjonej has a provisional diagnosis of Bipolar Affective Disorder which has resulted in two episodes of manic psychosis requiring a period of hospital admission in an intensive psychiatric facility under involuntary orders. The prescription of medication for the treatment of his mental illness has at times been fraught by erratic compliance which has always resulted in a degree of risk of relapse of the illness. At the present time he is self-administering the antipsychotic medication olanzapine 5 mg daily and the antidepressant medication escitalopram 5 mg daily but my view is that these doses are probably inadequate as a prophylactic long term treatment.
On 26 October 2015, following the visa cancellation, the applicant was detained by the authorities in Adelaide and later transferred to Christmas Island.
The grounds of judicial review are as follows:
1. The Second Respondent committed jurisdictional error in that it did not provide the Applicant with a hearing as required under section 425 of the Migration Act 1958.
Particulars
1.1Having accepted that the visa applicant suffered from a severe mental health condition the Second Respondent failed to arrange an independent assessment of the Applicant.
1.2The Tribunal should not have found (decision paragraph 36) that the application was not one in which it required any, or any significant, evidence from the Applicant. The Tribunal should have provided the Applicant with an opportunity to respond on this and other issues and should also have arranged for a medical assessment to be undertaken in relation to the Applicant’s fitness to give evidence to the Second Respondent.
2. The Second Respondent committed jurisdictional error in that it asked itself the wrong question.
Particulars
2.1 The Second Respondent found (decision paragraph 36) that this is not a case which required any significant evidence from the Applicant. The Second Respondent should have asked itself whether the Applicant could participate in the hearing conducted before the Second Respondent, not whether evidence was required for the Second Respondent to proceed to a decision.
It was submitted by the Minister that the reference should have been to section 360 rather than section 425 of the Act because the decision was a Part 5 – reviewable decision rather than a Part 7 – reviewable decision (concerning protection visas). That submission appears to be correct. In any event, the sections are in substantially identical terms.
In oral submissions counsel for the applicant developed a further argument that there had been a denial of procedural fairness to the applicant in the sense considered by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[4] because the delegate had described the offences with which the applicant was charged as “very low-level drug offence” and said “the charges are of a relatively low level of seriousness”[5]. It was said that the Tribunal’s finding that the “Tribunal regards the offences as not insignificant in the context of [Direction 63] for immigration purposes”[6] was a reassessment of the significance of the offence and, because it was a dispositive factor in the Tribunal’s decision to affirm the visa cancellation, that reassessment ought to have been brought to the attention of the applicant and an opportunity given to him to comment.
[4] (2006) 228 CLR 152. Although that decision concerned section 425 of the Act.
[5] Court book page 29
[6] Court book page 155
The lead up to the Tribunal hearing
The application to the Tribunal for review of the delegate’s decision was filed on 21 October 2015. On 4 November 2015 the applicant’s lawyer, Mr Simmons of McDonald Steed McGrath Lawyers, wrote to the Tribunal seeking priority for the application because the applicant was in detention[7]. The applicant was invited to attend a hearing on 19 November 2015 by video link, with the Tribunal and the interpreter to be in Adelaide[8]. Ms McGrath, another lawyer from McDonald Steed McGrath Lawyers, wrote to the Tribunal on 12 November 2015 saying that the applicant had been removed to Christmas Island. She said that the applicant suffered from a severe mental illness. She also said she did not believe he was taking his medication or that he was receiving psychiatric treatment. She said she did not believe he would be well enough to attend the hearing on 19 November 2015 and sought an adjournment of the hearing[9].
[7] Court book page 36
[8] Court book page 38
[9] Court book page 43
On 18 November 2015 the Tribunal agreed to reschedule the hearing and said that a new hearing date would be advised in the future[10].
[10] Court book page 45
On 20 November 2015 Ms McGrath wrote to the Tribunal again and repeated the information about the applicant’s mental illness and said that he intended to apply for a Medical Treatment visa. She also referred to the difficulties that his partner, Ms Minicozzi, was having telephoning him on Christmas Island. Ms McGrath also said that she had difficulty contacting the applicant[11].
[11] Court book page 46
On 26 November 2015 the Tribunal wrote to the applicant’s lawyers asking for confirmation that the applicant wished the application to proceed[12].
[12] Court book page 48
It appears that the Tribunal then caused enquiries to be made to the Department about the applicant’s circumstances. On 11 December 2015 the Tribunal wrote to Mr Simmons and said that, according to the information from the Department, the applicant was “currently well and that he is taking medications and engaging with IHMS [International Health and Medical Services] at this time [as at 7 December 2015]”[13]. The Tribunal said it was mindful that the fitness of the applicant to participate in the hearing had been raised. It said that if it was to be submitted that the applicant was unfit to participate in the hearing it invited the provision of any relevant medical evidence. It said that it would also consider requiring the Secretary of the Department to arrange a medical examination pursuant to section 363(1)(d) of the Act “relative to the applicant’s fitness to participate in the hearing”.
[13] Court book page 60
The applicant’s lawyers responded on 15 December 2015 by e-mail referring to the diagnosis of Bipolar Affective Disorder by the applicant’s former treating psychiatrist, Dr Stephan, and referring to an attached medical report. That report does not appear in the Court book as an attachment to the letter or otherwise. The Tribunal’s reasons refer to a report of Dr Stephan dated 20 November 2015 (that is, in addition to the report of 1 September 2015) and I take it that the report attached to the letter was the report of 20 November 2015[14].
[14] Exhibit R1. That report was provided by the Minister in response to a request from me after I reserved judgment.
The e-mail, written on the authority of Ms McGrath, took issue with the assertion that the applicant was well and engaging with IHMS, apparently on the basis of a recent telephone call to him. The letter asserted that Dr Stephan was best placed to assess him and that the applicant should be brought to Australia to permit that to happen. The letter asserted that the Department had demonstrated “considerable mala fides in this case” and that “we are unwilling to accede to an order made by the AAT that the Secretary provide a report”.
The e-mail also addressed the issue of telephone communication with the applicant and said that:
We are aware that Mr Gjonej has access to phone cards and phones within their (sic) compounds to contact their legal representatives, and that teleconferences can be arranged by the Christmas Island authorities. However, in all the circumstances, we submit that such a telephone access is not desirable or appropriate at this time because of Mr Gjonej’s likely state.
The reference to the applicant’s “likely state” refers back to a comment in the e-mail that Dr Stephan’s view was that the applicant “is very unlikely to be well at this time”. The basis for that comment is unclear. The report from Dr Stephan dated 1 September 2015 says that she had not interviewed the applicant in the “immediate past or present”. She went on to say that she would have grave concerns for him if he were to be “incarcerated for an indefinite period” and this would be “grossly exacerbated were he not to be receiving ongoing treatment”. In the report of 20 November 2015 Dr Stephan said that she had last seen the applicant on 5 August 2015 when he was “in remission”. The report did not say the applicant was unlikely to be well at that time although she repeated her concern about the effect of incarceration on the applicant.
The Tribunal also asked about the current status of the criminal proceedings which were the reason for the cancellation decision. Ms McGrath advised that they had still not resolved but the Tribunal would be advised when there was information to hand.
The Tribunal observed that if the applicant was not fit to participate in the hearing and if his unfitness was not of a short or temporary nature he may wish to consider whether to consent to the Tribunal deciding the review without the applicant appearing before it, as permitted by section 360(2)(b) of the Act. Ms McGrath responded to that invitation by saying that the applicant had given evidence before the Tribunal on another occasion which was “not lucid or coherent”. She went on to say that she was not able to obtain instructions from the applicant and she did not consider that he was currently able to provide coherent instructions. She went on to assert that a warning against self-incrimination would:
not be meaningful in this situation where Mr Gjonej’s mental health, based on previous experience and his treating psychiatrist’s expert opinion, is not likely to lead to a proper participation in a hearing.
If the reference to “his treating psychiatrist’s expert opinion” is a reference to Dr Stephan’s opinion then that claim would not appear to be supported by her report of 1 September 2015. In response to a question (presumably from Mr Simmons in a letter seeking a medical report) Dr Stephan said:
Whether Mr Gjonej’s mental health issues prevent him from responding to questioning in circumstances such as the upcoming interview when he will be under extreme pressure …
It is difficult for me to answer this question as I have not interviewed Mr Gjonej in the immediate past or present. Certainly in my interactions with him over a very long period of time Mr Gjonej has been able to articulate himself, understand my instructions, organise his attendance for follow-up and express his concerns regarding specifics of his situation, most recently associated with a crisis involving the police. Barriers to engagement on a one-to-one level or in an interview process may include such factors as restrictions due to language, some difficulties in registration of information provided to him and some difficulties and challenges due to attitudinal problems. However, in the context of an interview process that may involve “extreme pressure” I have no basis on which to speculate upon his reaction to that as I categorically state that at the present time his mental illness has been stable and well contained. There are no features to suggest that he is psychotic or disturbed by pathology of his mood.
Dr Stephan’s subsequent report of 20 November 2015 did not materially change her earlier expression of opinion. As noted, the report stated that the last time Mr Gjonej had consulted her was on 5 August 2015.
On 17 December 2015 the High Court refused the applicant special leave to appeal against his substantive visa refusal. Thereafter the applicant’s only avenue to remain in Australia depended on the Minister’s intervention.
Meanwhile, the review process continued in the Tribunal. Further enquiries were made of the Department by the Tribunal about the applicant’s condition. The Department was asked to provide further information from the most senior medical or other practitioner who had been involved in Mr Gjonej’s medical care. On 25 January 2016 a Ms Streng, identified as “Case Manager” wrote to the Tribunal saying that:
Mr Gjonej is generally physically well. He does have some long standing mental health issues and is currently having regular sessions with a psychologist. He also regularly attends mental health outreach groups in his compound.
In answer to a question about what medication had been prescribed she replied “Mr Gjonej is prescribed Escitalopram (antidepressant) and Olanzapine (antipsychotic)”. In answer to the question whether Mr Gjonej “is compliant with medication?” she replied “Mr Gjonej is generally compliant and has taken his medications this morning (22/12)”. In answer to the question “based on interactions with Mr Gjonej, whether he appears to understand questions asked of him and answer them appropriately?” she responded:
Yes. Mr Gjonej’s most recent full Mental Health Assessment was on 23/11/15. He presented as neat, tidy, settled, pleasant, coherent, happy and reactive with no evidence of formal thought disorder or perceptual disturbances.
On 4 February 2016 the Tribunal wrote to the applicant advising him that his hearing had been rescheduled for 26 February 2016. The hearing was to be conducted by video link from Christmas Island with the Tribunal member and interpreter to be present in Adelaide.
On 11 February 2016 Ms McGrath wrote to the Tribunal on behalf of the applicant. She recited some of the history of the matter. She also complained that she had been unable to contact the Christmas Island Immigration Detention Facility and had not received any meaningful response to numerous emails. She said the matter had been very frustrating and the Department’s approach was of great concern to her. She called on the Tribunal to “require” the transfer of Mr Gjonej to Australia for the hearing. The Tribunal responded on 12 February 2016 by saying that it would consider the issue of the applicant’s fitness to participate in the hearing at the hearing. It said it had no power to require the transfer of the applicant from detention on Christmas Island.
On 23 February 2016 Ms McGrath wrote to the Tribunal advising that she had spoken to her client by telephone on 22 February 2016. He indicated that he wished to be present at the hearing. She asked the Tribunal to reschedule the hearing to a date after 26 February 2016. She said that he would be transferred back to Australia for his criminal matter in early March in any event. The Tribunal responded that it would consider the request for postponement at the time of the hearing.
On 26 February 2016 Ms McGrath sent the Tribunal copies of the applicant’s medical clinical notes from Christmas Island. These notes run over 50 pages[15]. It is not necessary to summarise them all but the records are of obvious importance. I propose to deal with some of the most significant.
[15] Court book pages 78 to 128
The notes in each case are pro forma and have a box describing the reason for contact, the diagnosis, if any, the name of the person making the note, the date the note was made and the specialty of the person making the note. In each case the name of the person making the note has been redacted.
The first note is dated 30 October 2015 when the applicant saw a mental health nurse. The note referred to his history of depression and psychiatric admissions, treatment with anti-psychotics and anti-depressants. The applicant was complaining of lowered mood, derogatory auditory hallucinations, lack of energy and excessive tiredness. He was most insistent that this information be relayed to “BF” [Border Force?] in order to persuade them to release him.
The next note is dated 31 October 2015. The mental health nurse noted that the applicant attended:
clinic as offered – he was on a cell phone talking to a friend …. client dressed casually, clean and tidy – appeared fully alert – speech was clear and coherent during conversation with his friend and of normal T F V.
The note recorded that the applicant continued to “experience derogatory voices” and he reported feeling “suicidal frequently”. The note went on:
Client presented with mildly irritable mood settling – his affect was congruent with mood and showed appropriate improvement as interview progress (sic) – his thoughts; expressed; (sic) were organised and lucid – client was fully oriented to time place and persons – cognitively nil overt impairment evident or distraction – client concerned of (sic) ongoing lethargy – client experiencing TOSH and suicide unable to ensure his safety – given Hx …
On 1 November 2015 a further note was made by the mental health nurse. It was noted that:
Client attended appointment late – relaxed in interview – mood and affect normal, very changeable if challenged – client expressing feeling depressed and suicidal – did not describe any other s/s very inconsistent reporting – vague reference to psychotic phenomena. Client expressed concerns in a very organised manner and thoughts while lucid – his mood and intention was very manipulative – expressions inconsistent with observed behaviour, and casualness – Client becoming abrupt and requesting his medication to return to zones.
Client report very inconsistent – nil evidence of psychosis or overt depression – while client vague as to plans or intent too (sic) self-harm, client polite at end of interview.
Client will require full psychiatric review.
Notes were made on further reviews on 2 November 2015 and 3 November 2015. The notes made on 3 November 2015 include the observation that:
Affect and mannerisms not matching symptoms and complaints his (sic) is voicing. Relaxed manner. Good eye contact. Able to communicate in English with ease. Nil FTD evident. Nil overt psychotic phenomena evident. Focused on getting out of detention. Unable to guarantee safety, states he will ‘do something with a knife’.
Plan
to remain on high SME currently for review by psychiatrist tomorrow
A further note was made by the mental health nurse the following day on 4 November 2015 in similar terms. On 5 November 2015 it was noted that the “client no longer in facility”.
On 17 November 2015 it was noted that the applicant had returned and he was seen by a primary health nurse for a suspected fungal infection. Further notes were made by a primary health nurse on 20 and 23 November 2015. He was seen by a general practitioner on 2 December 2015 in relation to dietary requirements. He was seen by a counsellor on 9 December 2015 participating in a “relaxation group”. The note said “No significant mental health issues were noted”.
On 9 December 2015 the applicant was seen by a psychologist. The note records the applicant’s history and goes on to record:
He maintained good eye contact, willing to engage and rapport was easily gained. He presented clean and well groomed, just having a haircut and shower prior to consult. He is polite and cooperative. He was clear in thought. He spoke without agitation, anger or tearfulness. Nor is he overly euphoric. He showed no impairment in concentration and his speech had normal rate and volume. His conversation was coherent and logical. He interacted in an appropriate manner. He has a good daily routine. He looks fit and healthy. Affect anxious. Interpreter not used his English is good.
Assessment: symptoms of anxiety and history of depression. Arrived at CIIDC 5 November 2015 from MIDC, on High SME due to suicidal ideation, discontinued on 13 November. Risk of harm to self or others is currently low.
Plan: Schedule regular psychological support sessions. Goals agreed with the Client are self-help techniques to reduce anxiety and ventilate his concerns. Referral to psychiatrist completed. Next consult is Thursday 17 December at 2 PM.
On 14 December 2015 it was noted that the applicant had missed his appointment with a psychiatrist because he was “sleeping”. He sought another appointment but was told the psychiatrist had left the island. He was told of an appointment with a psychologist for 17 December 2015.
The applicant was seen again by a counsellor on 15 December, 21 December and 23 December 2015. The notes on the 15 and 23 December record that “No mental health issues were noted”.
He was seen by a psychologist on 17 December 2015. The consultation note was in similar terms to the note made on 9 December 2015.
He was seen by a primary health nurse on 28 and 30 December 2015 about a rash. He was seen by a general practitioner on 31 December 2015 about the rash.
He was seen by a psychologist on 24 December and 31 December 2015. The observations made were similar to those recorded in the notes made on 9 December and 17 December 2015.
He was seen by a general practitioner on 11 January 2016 stating that he “Thinks the olanzapine dose is too heavy”. He was observed to be “Lucid, fully awake … Good eye contact, normal affect. …Seems stable psychologically: Oversedated on the major tranquilliser… Reduce olanzapine dose”.
On 15 January 2016 he did not attend his appointment with a psychologist and it was reported that “he does not wish to attend”.
On 21 January 2016 he attended an appointment with a psychologist. The notes of the psychologist’s observations were in similar terms to previous observations.
On 25 January 2016 he saw a general practitioner who noted that the applicant “Wonders whether he could see psychiatrist with a view to supporting his application for a ‘health visa’, also to discuss sleep, medication and anxiety/depression.”
On 27 January 2016 a note was made by an unidentified psychiatrist[16]. The reason for the contact was said to be “mental health consultation” and the diagnosis as “bipolar affective disorder, currently depressed, mild (disorder)”. The note recites some part of the applicant’s history including the diagnosis by Dr Stefan. It refers to the criminal charges and the fact that the applicant “vehemently denies cultivating cannabis”. It refers to “His Italian wife Bruna who is a psychologist is his protective factor” [17]. The note continues:
[16] Court book page 81
[17] In Gjonej v Minister for Immigration and Border Protection [2014] FCCA 2113 at [86] Judge Brown noted that the applicant wrongly asserted that he and Ms Minicozzi were married. It may also be observed that there is no evidence that Ms Minicozzi is a psychologist.
On MSE Ervis is a 30 year old Albanian man of stated age, dressed casually with neatly combed hair and maintained good eye contact and managed to establish a good rapport. He reported his mood is depressed and his aspect is restricted, congruent and decreased in range. No formal thought disorder and he denied active suicidal thoughts or plans. He is optimistic about upcoming court case as he is adamant that he never smoked or cultivated cannabis. He has good insight and prefers not to be on any mood stabilisers at this moment and wants to continue escitalopram.
Impression
Bipolar affective disorder current episode depression
Plan
Continue escitalopram 20 mg OD
Restart olanzapine 2.5 mg nocte if needed if there are any signs of hypomania or mania.
Being in detention centre will be detrimental for his mental health and he is better off being close to his wife who is his only support in Australia.
He is a low risk of self-harm and suicide in his current mental state but remains a moderate risk of self-harm and suicide in the medium to long term if he remains in detention.
On 1 February 2016 he was seen by general practitioner. Under the heading “Assessment” the applicant was noted to be:
alert
active
appropriate
no cough
no suicidal or homicidal ideation
very mildly depressed mood
no psychosis
judgement sound
cognitively intact
He was seen by a general practitioner on 4 February 2016 about toothache. On 19 February 2016 he saw a general practitioner asking to restart olanzapine because he was having trouble sleeping.
On 19 February 2016 a clinical note was made by a mental health nurse following a request from “immigration case management earlier this afternoon”. The note does not specifically refer to previous consultations but under a heading “Impression” the author notes “30 year old Albanian male with a history of bipolar affective disorder, currently on escitalopram 20 mg nocte. Recently seen by Visiting Psychiatrist whose impression was current episodic depression”.
The note referred to a discussion about the possibility of commencement of mood stabilisers to assist the applicant’s mental state. It is noted that the “client declined at this stage”. It was noted that he stopped olanzapine “due to sedation” but “would like to recommence”. The note went on to refer to:
MSE
Appearance and behaviour: tall, slightly overweight male of stated age. Was wearing a long gym pants and T-shirt: good level of personal hygiene observed. Good level of eye contact. Easy to engage and establish rapport. Pleasant and appropriate. Client has lost weight since the last time author engaged with him in early November 2015.
Mood: “very sad, cry sometimes” and “7 out of 10” (with 0 being the worse (sic) he has ever felt and 10 the best he has ever felt)
Affect: congruent, slightly restricted and decreased in range.
Speech: Good quantity and quality. Appropriate tone, rate and volume for interaction.
Thought form: sequential and logical, nil formal thought disorder observed.
Perception: nil overt perceptual disturbances observed.
Thought content: Nil overt concerns voiced.
Cognition: oriented to time, place and person. Not formally tested. Recalled engaging with author when first arrived to CI.
Insight/Judgement: displayed limited level of insight and judgement into current situation.
On 4 March 2016 the applicant was advised that the hearing would resume on 11 March 2016 by video link at Maribyrnong IDC with the Tribunal and interpreter to be in Adelaide. A document headed “MRD Hearing Record”[18] that the applicant, Mr Simmons and Ms McGrath, each of whom was described as “representative”, and Ms Minicozzi were “in attendance”. An interpreter was apparently available by telephone from Melbourne.
[18] Court book page 132
The hearing took place on 11 March 2016. According to the Tribunal’s reasons the applicant was in Melbourne and the Tribunal member, the applicant’s “representative” and Ms Minicozzi were present in Adelaide. An interpreter was available but the applicant chose to speak without the aid of an interpreter[19]. There is no transcript of the hearing. The “MRD Hearing Record” indicates that hearing commenced at 12.28 pm, adjourned at 3.30 pm, resumed at 3.50 pm and concluded at 4.00 pm.
[19] Tribunal's reasons paragraph [26], Court book, page 146
On 18 March 2016 the Tribunal wrote to Mr Simmons “as the authorised recipient of the applicant”. The letter[20] was headed “Invitation to comment on or respond to information – Mr Ervis Gjonej”. The letter enclosed the transcript of the sentencing remarks made by Magistrate Duncan in the Adelaide Magistrates Court. The letter did not indicate any particular aspect of the sentencing remarks on which the Tribunal sought comment.
[20] Court book page 135
In the hearing in this court the applicant was given leave to file a supplementary document. He subsequently filed a letter, also dated 18 March 2016, from the Tribunal that appears to have accompanied the letter referred to in the preceding paragraph. That letter was addressed to Mr Gjonej and specifically invited him to comment on “certain information which it considers would, subject to your comments or response, be the reason, or part of the reason, for affirming the decision under review.” The letter then went on to refer specifically to paragraphs 1, 2, 5, 6, 7 and 8 of the sentencing remarks made by Magistrate Duncan.
On 29 March 2016 Ms McGrath responded to the letter from the Tribunal on behalf of the applicant. A submission was made about the applicant’s mental health and it was asserted that “We are unable to indicate to the Tribunal that Mr Gjonej is fit to represent himself or make any statements in relation to this matter. The letter went on to say that the applicant appeared to Ms McGrath to “be aggressive and grandiose in his statements” in the hearing and that “Last time he behaved in a similar way he was subsequently detained at Glenside Mental Institute for psychiatric treatment for a period of six weeks”.
The letter referred to the applicant’s relationship with Ms Minicozzi and submitted that he suffers from a “severe mental condition” and would not be properly treated if he departed Australia.
The letter concluded by referring to the Tribunal’s invitation to comment about the sentencing remarks. Ms McGrath said she had no instructions in relation to the police matter but the information appeared to be consistent with the information she had received about the criminal charge.
The Tribunal’s reasons
The Tribunal dealt with the history of the matter in some detail. It referred to the correspondence between the applicant and the Tribunal and the medical and other evidence about the applicant referred to above[21]. It then dealt with the question of the “competency” of the applicant to participate in the hearing, again in some detail[22]. The Tribunal regarded itself as required to make its own assessment of the applicant’s ability to participate in the hearing.
[21] Tribunal's reasons, paragraphs [4] to [26], Court book pages 141 to 146
[22] Tribunal's reasons, paragraphs [27] to [37], Court book pages 146 to 148
It took into account material provided by the applicant’s representative to the Tribunal. It took particular note of the report of Dr Stephan dated 20 November 2015. It noted the history provided by Dr Stephan, including a period of involuntary hospitalisation in 2013 and a consequent diagnosis by hospital clinicians of schizophrenia. She indicated that, in her opinion, the applicant’s correct diagnosis was Bipolar Affective Disorder. She indicated that this condition was in remission when he last consulted her on 5 August 2015. She reiterated that it was absolutely critical that the applicant receive “medication treatment under professional supervision”. She expressed the opinion that if the applicant were unable to have access to such treatment it would be “inevitab[le] that he will experience a relapse of his illness and become mentally unwell.” She expressed the opinion that if the applicant had been unable to be treated for a substantial period of time he would “require the expertise of a qualified psychiatrist to assess, monitor and treat with medication[23].”
[23] Tribunal's reasons paragraphs [31], [32], Court book page 147
The Tribunal referred to the applicant’s medical notes made during his detention at Christmas Island. It noted the records of the consultation between the applicant and a psychiatrist on 27 January 2016. It noted that there was no indication of any “formal thought disorder and the applicant denied active suicidal thoughts or plans.” The Tribunal also noted that the records indicated the applicant had “good insight and prefers not to be on mood stabilisers.” It also noted the observation that prolonged detention would be detrimental to the applicant’s mental health and that he was better off being close to his “wife” in Australia.
The Tribunal accepted that the medical evidence indicated the applicant suffered from a long standing mental health condition. However, the Tribunal was not persuaded that the applicant was incapable of participating in the hearing. It said it was mindful that Dr Stephan had not seen the applicant since August 2015. It also took into account the Tribunal’s earlier intimation that it would consider requiring the Secretary of the Department to arrange a medical examination about the applicant’s fitness to participate in the hearing and that the applicant’s representative had refused to agree to such an examination unless the applicant was brought to Australia and assessed by Dr Stephan.
The Tribunal also made an observation at paragraph [36] of its reasons that:
In considering this matter and the competency of the applicant to appear, the Tribunal was mindful that the nature of the application is not one in which it required any, or any significant evidence, from the applicant. The information could be obtained from other sources. The Tribunal also notes that the mental health condition is of a long-standing nature.
The Tribunal also had regard to the fact that the applicant had pleaded guilty to a criminal charge in the Adelaide Magistrates Court on 7 March 2016 and the fact that he was apparently “fit to plead” on that occasion.
The Tribunal concluded its discussion of the applicant’s “fitness” to participate in the hearing by observing that he responded in a way which “suggested that he understood the questions in the hearing process”. The Tribunal noted the applicant’s representative’s submission that the applicant “appeared agitated and aggressive” at the hearing and that he did “not have insight into his mental health problems”. The Tribunal acknowledged that “some of his interactions were grandiose” and went on to observe that “ultimately, the Tribunal has not relied to any degree on evidence from Mr Gjonej”. The Tribunal concluded its consideration of the issue by observing that it was “in a difficult position in appropriately dealing with this application for review in light of the applicant’s detention and his long-standing mental health condition”.
The Tribunal then went on to consider the substantive issue of the visa cancellation. It found that ground for cancellation of the visa existed, based on the fact of either the charge or conviction of cultivating cannabis. In considering its discretion it was required to have regard to Ministerial Direction No. 63 which required the Tribunal to take into account primary and secondary considerations. The primary considerations were, first, that the Direction required that visa cancellation based on a charge or conviction for an offence should be applied rigorously and, second, consideration of the best interests of any children under the age of 18 in Australia who would be affected by the cancellation. The secondary considerations were the impact of a decision to cancel the visa on the family unit, the degree of hardship that may be experienced by the visa holder if the visa is cancelled, the circumstances in which the ground for cancellation arose, the possible consequences of cancellation and any other relevant matter.
In relation to the primary considerations the Tribunal noted the principle that the Australian government has a low tolerance for criminal behaviour, of any nature, by non-citizens who are in the Australian community on a temporary basis and who do not hold a substantive visa. The Tribunal noted that the applicant did not have any children in Australia and while Ms Minicozzi had children and grandchildren and the applicant had some interaction with them the Tribunal did not consider that of any weight in the application.
In relation to the secondary considerations the Tribunal said the impact on the family unit of the decision to cancel the visa had to be considered in the context that the applicant’s attempts to obtain a partner visa had ultimately been dismissed by the High Court in December 2015. In considering the degree of hardship experienced by the applicant on cancellation of his visa the Tribunal took into account his long-standing mental health condition and his complaints of neglect on Christmas Island. The Tribunal took into account his claim that he should be with his family in order to obtain medical treatment but said that claim should be seen in the context that his bridging visa would have been cancelled, in any event, 28 days after the dismissal of his High Court special leave application. The Tribunal also considered the circumstances in which the ground for cancellation of the visa arose, that is, the commission of the offence of cultivating cannabis. The Tribunal noted the sentencing remarks of Magistrate Duncan which appeared to accept that the applicant cultivated cannabis for others and was rewarded by way of cannabis for his own use and his use of cannabis was to alleviate anxiety symptoms. The Tribunal also noted the time the applicant spent in custody and the fine of $10, along with the forfeiture of money and a mobile phone seized by police. The Tribunal noted that the possible consequences of the visa cancellation included the applicant’s removal or deportation from Australia. The Tribunal also noted submissions on other matters from the applicant’s representative including that he is in a committed relationship with an Australian citizen, that he suffers from a severe medical condition which would not be properly treated if he departed Australia and that his condition is best managed at home by his partner, family members and friends under medical supervision.
In conclusion, the Tribunal noted that the circumstances of the offence, including a hydroponic setup for the cultivation of cannabis in three bedrooms of a house where the applicant’s DNA was found in the house and he was to be paid in kind, were not insignificant in the context of Ministerial Direction No. 63. The Tribunal also noted that the applicant had no substantive visa application on foot and his options for remaining in Australia depended on a Ministerial intervention request.
Consideration
The starting point for consideration is section 360(1) of the Act which provides:
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.
An applicant need not be legally “competent” to appear before the Tribunal. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[24] Gummow and Hayne JJ, with whom Gleeson CJ agreed, said of a hearing before the Tribunal under the Act:
The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the Tribunal must be convinced before and applicant can take part or continue to take part in proceedings before the Tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead. … (citations omitted)
[24] (2004) 78 ALJR 992 at [45]
In Gjonej v Minister for Immigration and Border Protection[25] Allsop CJ said:
There was no debate as to the proper test to be applied. The standard required by s 360 of the Act (or its equivalent provision, s 425 in the context of the Refugee Review Tribunal) has been addressed in a number of cases such as Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[26]; SZQBN v Minister for Immigration and Border Protection[27] and cases there cited. There must be proven to have been the lack of a real and meaningful opportunity to take part in the hearing before the Tribunal….
[25] [2015] FCA 159 at [17]
[26] (2003) 128 FCR 553
[27] [2014] FCA 686
Counsel for the Minister made a blanket submission in response to the applicant’s assertion that he was not given a real and meaningful opportunity to take part in the hearing by pointing out that the applicant had not provided any transcript of the hearing. He said that in the absence of transcript any assessment of the applicant’s assertions about the nature and quality of his participation in the hearing is impossible. I accept that there is a good deal of merit in this criticism, particularly where it appears that the applicant attended the hearing by video link, the hearing continued over some hours and the applicant’s legal representatives and Ms Minicozzi were present. In reply to that submission it might be said, although it was not said in these terms by the applicant, that it may be possible to draw an inference from contemporaneous independent and objective evidence, such as psychiatric and medical evidence, that the applicant’s mental health was so poor that his participation in the hearing was unlikely to have been real or meaningful. That is, in substance, the question raised by the applicant although the grounds of the application obscure rather than illuminate this issue. I will return to this later.
Consistently with particular 1.1 of Ground 1 the applicant submitted that the Tribunal should have arranged an independent medical assessment of the applicant or provided the applicant with an opportunity “to seek a medical assessment … be undertaken”.
There are two answers to this point. First, the Tribunal was not under any duty to arrange a medical examination of the applicant. Speaking of section 427 in Part 7 of the Act, the equivalent of section 363(1)(d) in Part 5, Gummow and Hayne JJ said in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[28]:
… Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 [the equivalent in Part 5 is section 361] provides that, even if an applicant requests that the Tribunal take oral or written evidence from the witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
[28] [2004] HCA 32, 78 ALJR 992 at [45]
Secondly, the Tribunal intimated to the applicant’s representative a willingness to consider requiring the Secretary of the Department to arrange a medical examination. The applicant’s representatives refused to agree to such a course and asked the Tribunal to arrange for the applicant to be returned to Australia and assessed by Dr Stephan. The Tribunal replied that it did not have the power to require the Department to do this.
In my view, the Tribunal was not required to obtain a medical examination of the applicant, whether by Dr Stephan or any other medical practitioner. Further, the applicant’s refusal to countenance a medical examination arranged pursuant to section 363(1)(d) deprives his complaint of any real substance.
Particular 1.2 of Ground 1 repeats the allegation about medical assessment and further alleges that the Tribunal found, wrongly, in paragraph [36] of its reasons that the application did not require any or any significant evidence from the applicant and did not provide an opportunity to respond on “this and other issues”.
In his written submissions counsel for the applicant appeared to go further. He submitted that the Tribunal’s statement in paragraph [37] of its reasons that “In any event, ultimately the Tribunal has not relied to any degree on evidence from Mr Gjonej” was “extraordinary and unreasonable”.
The statement of the Tribunal appears at the conclusion of the paragraphs of the Tribunal’s reasons discussing the applicant’s mental health. These paragraphs appeared under the subheading “Competency of the applicant to participate in the hearing”. The relevant paragraphs are:
[36] In considering this matter and the competency of the applicant to appear, the Tribunal was mindful that the nature of the application is not one in which it required any, or any significant evidence, from the applicant. The information could be obtained from other sources. The Tribunal also notes that the mental health condition (sic) of a long-standing nature. The Tribunal was influenced by the fact that the applicant has very recently appeared in the Adelaide Magistrates Court on 7 March 2016, in relation to his criminal charges. The Tribunal as had regard to the fact that the applicant has pleaded guilty to the first of those charges and the second and third charges had been withdrawn. The Tribunal places some reliance on the fact that the applicant was apparently fit to plead in the criminal Court.
[37] The information before the Tribunal and the behaviour of the applicant does not establish that the applicant was unfit to participate in the Tribunal hearing. In the course of the hearing on 11 March 2016 the applicant responded to issues asked of him in a way which suggested that he understood the questions in the hearing process. At the hearing his representative submitted that he appeared agitated and aggressive. She remarked that he did not have insight into his mental health problems. The Tribunal acknowledges that some of his interactions were grandiose. In any event, ultimately, the Tribunal has not relied to any degree on evidence from Mr Gjonej. The Tribunal is in a difficult position in appropriately dealing with this application for review in light of the applicant’s detention and his long-standing mental health condition.
In my view, the Tribunal, in saying that it had not relied on evidence from Mr Gjonej, was making the obvious point that it’s assessment of his mental health was necessarily substantially, perhaps exclusively, reliant on independent medical evidence. There was very little Mr Gjonej could usefully add. The Tribunal made its own observations of Mr Gjonej’s ability to participate and noted that he responded to issues and appeared to understand questions.
In discussing the cancellation of visa the Tribunal was also making the point that most, if not all, of the relevant matters could be or could only be established by reference to other sources. The conviction for an offence and the circumstances behind it were a matter of record. The applicant’s mental health history, diagnosis and current medical condition were the subject of evidence from Dr Stephan and other medical practitioners. The nature of the applicant’s relationship with Ms Minicozzi could be (perhaps most appropriately) the subject of evidence from her. There was, in any event, extensive information about that relationship from the other proceedings. It is difficult to see, against this background, that any substantial or detailed evidence was required from the applicant. Nevertheless, he attended the hearing by video link and responded to the issues and questions raised by the Tribunal. The Tribunal’s remarks are unexceptional.
The additional suggestion in the submissions of counsel for the applicant that the Tribunal “made a decision to hear the matter in the absence of the applicant” [29] is perplexing. If this is a complaint that the applicant ought to have been permitted to attend the hearing in person in Adelaide it is not one made to the Tribunal at the time. More importantly, there is no evidence that attending the hearing by video link, as distinct from in person, disadvantaged the applicant.
[29] Applicant's outline of submissions filed 23 September 2016, paragraph [3], page 4
The applicant’s submissions in relation to Ground 1 go on to complain about the weight given to the conviction by the delegate and the Tribunal and to assert that it was of “a minor nature” and did not reflect Direction No. 63. No particulars were given of the alleged failure to reflect Direction No. 63 and the meaning of the submission is not apparent to me. Ministerial Direction No. 63 appears to require a rigorous approach to the applicant in his situation, as was noted by both the delegate and the Tribunal.
Questions of weight are matters for the Tribunal and there was a logical and probative basis for the Tribunal’s conclusions.
The applicant’s submissions in relation to Ground 1 conclude by asserting that “the Tribunal did not give the applicant a reasonable opportunity to attend the hearing and present evidence about relevant supplementary facts at the hearing”. Given that the applicant did attend the hearing by video link, was legally represented and answered questions I do not understand this submission. Any relevant “supplementary facts” are not identified in the submission.
This ground does not identify a jurisdictional error.
Ground 2 alleges that the Tribunal committed jurisdictional error because it asked itself the wrong question. The particulars of the ground repeat the particulars of Ground 1 to a certain extent and are difficult to understand. It is alleged that the Tribunal found that the case did not require any or any significant evidence from the applicant. This has been dealt with above. The particulars go on to say that the Tribunal “should have asked itself whether the Applicant could participate in the hearing conducted before the [Tribunal], not whether evidence was required for the [Tribunal] to proceed to a decision.”
In my view, the Tribunal did ask itself whether the applicant could participate in the hearing. The Tribunal gave consideration to the medical history and diagnosis of the applicant. It had regard to that material, including two reports from the applicant’s treating psychiatrist, Dr Stephan, and was not persuaded that the applicant was incapable of participating in the hearing. According to Dr Stephan, the applicant was in remission with his bipolar disorder, although she expressed grave concerns about the effect of incarceration and the possible effect if the applicant did not take prescribed medication under psychiatric supervision. The medical records from IHMS indicated that the applicant was receiving medical treatment, including psychiatric treatment, and was more or less compliant with his medication regime. There were observations in the notes, for example in the psychiatric examination of 27 January 2016, that “No formal thought disorder was observed” and that the applicant “has good insight”. That latter observation was qualified by the observations made on 19 February 2016 by a mental health nurse but the overall impression is that the applicant was well enough to take part in the hearing.
The test is not legal competency. Although the Tribunal’s focus on “competency” and “fitness” was, having regard to SGLB, possibly misplaced there was nothing in those records or the course of the hearing as recorded in the Tribunal’s reasons to indicate that the applicant was deprived “of a real and meaningful opportunity to take part in the hearing before the Tribunal.” ….
If attention is redirected from the issue of “competency” it seems to me that the question of whether an applicant has a real and meaningful opportunity to take part in a Tribunal hearing is not an abstract question. It must be assessed in context having regard to the issues before the Tribunal, the available evidence and, in this case, the nature and severity of the applicant’s mental health problems and the importance or otherwise of any diminished level of comprehension demonstrated by him. Here the applicant may have had limited insight into his mental health problems but he was legally represented before the Tribunal which, one must assume, increased his opportunity for real and meaningful participation. The issues were clear and, as I have described above, the evidence about those issues came mostly from sources other than the applicant himself.
The Tribunal was correct, in my view, to have regard to the nature of the issues and the evidence in deciding whether the applicant had a real and meaningful opportunity to take part in the hearing.
This ground discloses no jurisdictional error.
As mentioned, the applicant’s counsel raised a further argument during the hearing based on SZBEL, as I interpreted the submission, and I permitted the applicant to file a supplementary document and a supplementary written submission. The applicant filed correspondence from the Tribunal to the applicant dated 18 March 2016, that is, after the hearing, addressed to his lawyers, where the Tribunal asked the applicant to comment on the sentencing remarks made by Magistrate Duncan in the Adelaide Magistrates Court. The correspondence indicated that they may be the reason or part of the reason for affirming the delegate’s decision[30]. In my view this disposes of any argument that the applicant was not given procedural fairness in relation to the Tribunal’s assessment of the seriousness of the cannabis charge and conviction. By the time the Tribunal considered the matter the applicant had pleaded guilty to cultivating cannabis and the Tribunal indicated that may be a reason for affirming the delegate’s decision which had been based, at that stage, on unproven charges. Against that background any difference in the language used by the delegate to describe the charges: “very low-level drug offences” and “of a relatively low level of seriousness”, compared to that used by the Tribunal to describe the conviction: “… not insignificant in the context of [Direction 63] for immigration purposes”, is immaterial. The applicant cannot have been in any doubt that the conviction, along with the admitted facts, was considered by the Tribunal as a reason for affirming the delegate’s decision and he was invited to comment.
[30] Not all of this correspondence was in the Court book. See paragraph [61]. I am grateful to Mr Leyden for bringing to my attention this material which was relevant but not favourable to his client.
The applicant’s supplementary submission, however, made a different point. It complained that the correspondence sent from the Tribunal on 18 March 2016 was addressed to Mr Simmons rather than Ms McGrath, who was said to be the authorised recipient. It was submitted that the “letter may have wrongfully been deemed to have been received by the MARA agent Ms Jane McGrath”. In fact, the reply, dated 29 March 2016, was from Ms McGrath. That is not surprising because both worked in the same firm. There is no merit in this point.
The applicant also repeated submissions complaining about the weight given to the conviction by the Tribunal. As noted above questions of weight are matters for the Tribunal and, as noted above, there was a logical and probative basis for the Tribunal’s conclusions.
The application will be dismissed with costs. I will also make an order that the applicant pay the Minister’s costs in accordance with Schedule 1, Part 3, Division 1, Item 3 of the Federal Circuit Court Rules 2001. The amount is $7,206.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 1 February 2017
CORRECTION
Matter number on coversheet and first page of reasons changed from “ADC 95 of 2016” to “ADG 95 of 2016”
[3] The report appears at Court book page 23.
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