McHugh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 2405
•4 August 2023
McHugh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2405 (4 August 2023)
Division:GENERAL DIVISION
File Number(s): 2022/6181
Re:Kylee McHugh
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:4 August 2023
Place:Canberra
Request for directions refused.
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Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – application for conferral of Australian citizenship by descent – character test – criminal record – applicability of policy requirement for holistic assessment – alleged extenuating circumstances – alleged psychiatric, neurological and intellectual impairments – impecuniosity – request for preliminary acceptance of impairments by the Tribunal – request for order to compel Respondent to arrange and fund independent medical and psychological examinations – statutory duties and inquisitorial function of the Tribunal – duty to ensure each party has a reasonable opportunity to prepare case – duty to make obvious inquiry about critical facts – no power to compel Applicant to undergo a medical or psychiatric examination against her will – no duty to obtain further medical or psychiatric evidence – request refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33, 39, 43
Australian Citizenship Act 2007 ss 3, 16, 17
Cases
Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Ellison v Comcare [2022] FCA 95
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24
Ruykys v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 433
R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Walker v Military Rehabilitation and Compensation Commission [2017] FCA 386Other materials
CPI 15 - Assessing Good Character under the Citizenship Act, Department of Home Affairs, 26 February 2021
REASONS FOR DECISION
Mr S. Webb, Member
4 August 2023
Kylee McHugh is a citizen of New Zealand. She applied for conferral of Australian citizenship by descent. A delegate of the Minister refused her application on character grounds (refusal decision). Ms McHugh lodged an application for review of this decision by the Tribunal.
In the course of the proceedings, counsel for Ms McHugh, Mr Allan Anforth, requested:
(a)the Minister to arrange and fund independent medical examinations of Ms McHugh, namely:
(i)a psychological report on the Applicant's intelligence level;
(ii)a neurological report on the Applicants level of brain damage from drug use or otherwise;
(iii)a psychiatric report on the Applicant's history of traumas; and
(b)concessions by the Minister and acceptance by the Tribunal of psychiatric, neurological and intellectual impairments Ms McHugh allegedly suffers; and, if this is not agreed
(c)an order by the Tribunal requiring the Minister to obtain the requested reports.
The Minister does not agree to these matters and opposes the issuing of an order by the Tribunal.
On 14 October 2022 and 31 May 2023, I heard the parties and issued directions. As the matters Mr Anforth raised have not been agreed and Ms McHugh presses for the Tribunal to order the Minister to obtain the reports sought on her behalf, further written submissions have been provided by each party.
In Mr Anforth’s submission, Ms McHugh’s psychiatric, neurological and intellectual impairments are extenuating circumstances which mitigate her record of criminal conduct and raise questions about the applicability of provisions in the Citizenship Procedural Instructions 15 (CPI 15). He contends these are matters the Tribunal must consider when adopting the holistic approach to character considerations CPI 15 requires for the purposes of s 16(2)(c) of the Australian Citizenship Act 2007 (Citizenship Act).
Mr Anforth submits there may be sufficient materials, some of which were obtained under Tribunal summons, to satisfy the Tribunal and the Minister Ms McHugh has psychiatric and neurological impairments and, if so, it may not be necessary for the Minister to obtain further neurological and psychiatric reports.
Mr Anforth asserts the available materials may not be sufficient to support detailed factual findings in respect of Ms McHugh’s intellectual capacities. Mr Anforth argues the Tribunal has a statutory duty to inquire into such matters, and it has sufficient power under relevant provisions of the Administrative Appeals Tribunal Act 1975 (AAT Act) to order the Minister to obtain relevant information in an expert report. As Ms McHugh is impecunious and intellectually impaired, she is unable to pay for such an expert report and, as evidence about her intellectual capacities will be crucial to assist the Tribunal to make the preferable decision, so the argument goes, the Tribunal should carry out its inquisitorial duty and exercise its powers under s 33 to require the Minister to obtain such evidence.
The Minister submits, in consideration of the materials which are currently available, the reports requested by Ms McHugh would be of limited additional assistance to the Tribunal. The Minister accepts Ms McHugh’s complex social background, as well as her mental health and drug use, are relevant to the Tribunal’s assessment of mitigating factors under CPI 15 for the purposes of s 16(2)(c) of the Citizenship Act. The Minister contends the available materials detail Ms McHugh’s social background and mental health issues.
The Minister argues, even if the additional reports would assist the Tribunal, the Tribunal cannot compel the Minister to arrange and fund medical examinations at Ms McHugh’s request. In the Minister’s submission, the Tribunal’s power to regulate procedure under s 33 does not empower the Tribunal to direct Ms McHugh to attend and participate in a medical examination or to provide information to a medical examiner or a psychiatrist.
The Minister contends CPI 15 does not compel the Tribunal to undertake further investigations or to obtain further materials in circumstances where it considers the available information in respect of a particular matter is insufficient. The Minister asserts, in such circumstances, the Tribunal does not have a duty to require that further medical information is obtained for the purposes of assessing mitigating factors in Part 14 of CPI 15. Even if the Tribunal has sufficient power to direct the Minister to obtain the reports requested on Ms McHugh’s behalf, which the Minister does not concede, the Tribunal is not duty-bound to exercise the power. The Minister maintains the Tribunal is entitled to come to its own conclusions on the evidence placed before it (including drawing conclusions about the insufficiency of the evidence) and, in doing so, it would not fail to exercise its jurisdiction or fall into error by deciding the application without requiring the Minister to obtain the reports requested on Ms McHugh’s behalf.
The Matter is to be decided in reference to s 33(1) of the AAT Act:
In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
As can be seen, the Tribunal is vested with discretionary power to determine procedure in a proceeding. Even though the Tribunal may inform itself on any matter in such manner as it thinks appropriate, the inquisitorial function is not at large. Necessarily, it is subject to considerations of reasonableness in the context and the circumstances of any particular proceedings.
I should say immediately, the request made on Ms McHugh’s behalf for the Tribunal to accept Ms McHugh’s alleged impairments on the present materials is premature. While it may be appropriate at this stage of the proceedings for the parties to explore the possibility of agreement about relevant facts, or to limit contested facts, absent agreement and without the parties being given an opportunity to test related evidence, it is not appropriate for the Tribunal to make preliminary findings about factual matters which are relevant to statutory questions the Tribunal must subsequently decide should the application proceed to a hearing.
On the larger issue advanced on Ms McHugh’s behalf, even if the Tribunal has the power (which is doubtful), I am not persuaded or satisfied it is appropriate in the particular circumstances to grant the request for directions to compel the Minister to obtain the medical reports Mr Anforth is seeking.
It is possible the Tribunal’s power to regulate procedure under s 33(1) of the AAT Act might permit a direction of the kind requested. The possibility is rather narrower than Mr Anforth contends, however. The Tribunal does not have power under s 33 to compel Ms McHugh to submit to a medical, psychological or psychiatric examination against her will as to do so would interfere with her common law freedoms without express statutory authority.[1] Presently, it is not clearly established by the evidence that Ms McHugh willingly consents to submit herself to the medical, psychiatric and psychological examinations proposed and, furthermore, that she would willingly disclose the personal, private information such examinations would necessarily require. In this context, I note the contents of the 6 June 2023 letter provided by Jessica Price of Toora Women Inc.
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24 at [71] and [81]-[85].
Even if Ms McHugh satisfied the Tribunal she would willingly submit to the proposed examinations and all they entail, and it was to be accepted the Tribunal’s procedural power under s 33(1) is sufficient to make the direction sought (which is not resolved), there is a related question about the appropriateness of exercising the discretion in the particular circumstances. In that context, it is necessary to consider the statutory scheme under which the refusal decision was made and is presently subject of review.
There is no provision in the Citizenship Act which requires the Minister or the Tribunal to obtain information or expert opinion to support an application for conferral of Australian citizenship. Provision is made in s 46 of the Citizenship Act for an applicant to provide relevant supporting materials. The Minister’s decision to approve or to refuse an application under s 17(1) is conditioned by succeeding subsections. Subsections 17(1A) and (2) refer to the eligibility criteria set out in s 16(2) or (3), which essentially require, inter alia, the Minister to be satisfied the person is of good character at the time. This requires consideration and evaluation of relevant probative material, as well as any materials, arguments or reasons advanced by or for the applicant. Whether or not additional probative material is required is a matter for judgment having regard to the requirements of procedural fairness in the particular circumstances.
On review, the Tribunal must make a fresh decision on the materials and evidence before it.[2] In a case of the present kind, involving an application for conferral of Australian citizenship by descent under s 16 of the Citizenship Act and a decision under s 17 refusing to grant the application, the Tribunal must address the same statutory questions, and may exercise the same powers for the purposes of review (subject to the limits in s 52(3) of the Citizenship Act), as the person who made the refusal decision. [3] The key issue in this case requires the Tribunal to determine if it is satisfied Ms McHugh is of good character. The state of satisfaction is to be achieved according to law and reason, rationally considering relevant probative evidence, noting that:
When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]
[2] DRAKE AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS [1979] AATA 179 (21 NOVEMBER 1979).
[3] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 per Keifel CJ, Nettle and Keane JJ at [14]-[15] and Per Bell, Gageler, Gordon And Edelman JJ at [51].
[4] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, per Flick and Perry JJ at [120].
It has often been said, despite appearances, proceedings in the Tribunal are not strictly adversarial and there is no onus of proof on either party. Under s 33(1AA) the Minister must use his best endeavours to assist the Tribunal to make its decision in the proceedings. Under s 33(1AB) of the AAT Act, the parties must use their best endeavours to assist the Tribunal to fulfil the statutory objectives set out in s 2A:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
Even though the Tribunal is not bound by the rules of evidence, it must make findings in a logically probative manner on the relevant materials placed before it according to substantial justice and the merits of the case.
Furthermore, under s 39(1) of the AAT Act, the Tribunal must ensure that each party has a reasonable opportunity to present their case, including inspecting and making submissions about relevant documents:
Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
Of these sections, Flick and Perry JJ observed in Sullivan v Civil Aviation Safety Authority[5] at [91]:
Sections 2A, 33 and 39 are to be read and applied in context. Sub-sections 33(1)(a), (b) and (c), in particular, are to be read together and subject to the requirement to ensure that a party has a “reasonable opportunity” to present his or her case: s 39. “Understood in that context”, it has been said, “s 33(1)(c) is not a grant of power occasionally to depart from the strict application of the rules of evidence; rather it presupposes and establishes a scheme for the Tribunal to inform itself of relevant matters in which, notwithstanding that the procedure of the Tribunal always remains within the Tribunal's independent control, ... the Tribunal, subject to the rules of natural justice, properly may rely on any probative materials relevant to its function”.
[Citations removed.]
[5] [2014] FCAFC 93.
Even though the Tribunal is not bound by the rules of evidence, it is not free to depart from the rules of procedural fairness or to proceed in a manner which advantages one party over another.[6] The Tribunal is required to respond to the case each party advances before it.[7] That said, the Tribunal has an inquisitorial role in which it must decide the issues on the material placed before it without the issues being restricted to the case as articulated by a party.[8] Reference to the Tribunal’s inquisitorial role is to be understood in the context of review: the Tribunal’s core function is that of review, not inquisition.[9]
[6] R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, per Evatt J at 256.
[7] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, per Kirby J at [78].
[8] ELLISON V COMCARE [2022] FCA 95 AT [104]-[105]; RUYKYS V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS [2003] FCA 433 AT [47].
[9] Walker v Military Rehabilitation and Compensation Commission [2017] FCA 386 at [21].
Whatever the extent of the Tribunal’s inquisitorial role might be, the Tribunal is not under a statutory duty to obtain information which Mr Anforth considers necessary, or at least desirable, to support Ms McHugh’s application or in order to make the correct or preferable decision. The Tribunal has a duty to ensure each party has a reasonable opportunity to present their case. This includes providing each party a reasonable opportunity to bring forward any materials on which they intend to rely and to advance any submissions they care to make. The Tribunal has a duty to consider, properly comprehend and address all relevant matters raised by the evidence or in the submissions and contentions of the parties in order to make the correct or preferable decision.
Under s 52 of the Citizenship Act and s 25 of the AAT Act, the Tribunal’s duty is to review the Minister’s refusal decision. It is for Ms McHugh to advance whatever evidence or argument she chooses in support of her application for conferral of Australian citizenship. It is for the Tribunal to consider the evidence and the submissions advanced when deciding the issues raised. In so doing, certainly, the Tribunal should make any obvious inquiry about a critical fact or about factual matters which can readily be determined and are of critical significance to the statutory questions it must decide.[10] Making such an inquiry in the proceedings does not mean the Tribunal is bound to embark upon an inquiry to obtain evidence in support of a particular case.
[10] Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50 at [56].
In the circumstances of Ms McHugh’s case as presently articulated, there is an issue whether her past offending conduct is attended by mitigating circumstances of relevance when deciding if she is of good character for the purposes of s 16 of the Citizenship Act. There may be obvious inquiries which should be made about related factual matters in order to elicit relevant probative evidence. Commonly, inquiries of this kind would be directed to the parties or to a witness in the proceedings. Where such inquiry is made of the parties, it is for the parties to respond, noting their respective obligations under s 33(1A) and (1B) of the AAT Act.
The request for directions pressed by Mr Anforth turns, in part, on Ms McHugh’s circumstances. The extenuating circumstances alluded to involve mental health and cognitive issues which allegedly bear upon her past offending conduct, and impecuniosity in consequence of which Ms McHugh is unable to afford to pay for the reports which have been requested on her behalf. I understand from submissions there may be other materials, including materials produced under Tribunal summons, which may be relevant to Mr Anforth’s assertion of mitigating circumstances in relation to Ms McHugh’s offending conduct and her character. If that is correct, there may be sufficient material to support factual findings in respect of issues relating to Ms McHugh’s mental health, neurological impairment and intellectual capacity which Mr Anforth argues amount to extenuating circumstances. In these circumstances, it is desirable for the parties to engage in further discussions about such matters in order to ensure all relevant probative materials are placed before the Tribunal.
It is for Ms McHugh to decide if it is desirable for additional material to be obtained to support the case contended for, addressing her intellectual capability for example. The Tribunal is obligated to provide her with a reasonable opportunity to present her case. The conception of reasonable opportunity in the context of s 39(1) of the AAT Act is sufficiently broad to allow flexibility in the way in which a person’s case might be presented without offending principles of procedural fairness. Commonly, medical evidence, particularly expert medical evidence, is led in documentary form, usually a report provided well ahead of a hearing, which is subsequently tested in oral evidence. Where, in the circumstances of any case, there is a good reason to depart from the common practice, the Tribunal has flexibility to do so in a manner which is procedurally fair.
Considering these matters, the request for directions is not made out. Even if there is power under s 33(1) to direct the Minister to obtain the reports requested on Ms McHugh’s behalf, I am not satisfied it would be appropriate or necessary to exercise the discretion to do so.
Interlocutory decision
Request for directions refused.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
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Associate
Dated: 4 August 2023
Interlocutory Application heard on the papers
Date final submissions received
29 June 2023
Counsel for Applicant:
Mr A Anforth
Solicitor for Respondent:
Ms G Ho, Clayton Utz
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