McHugh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

This matter concerned an application for the conferral of Australian citizenship by descent by Ms Kylee McHugh, a New Zealand citizen. A delegate of the Minister had refused her application on character grounds. Ms McHugh sought review of this decision by the Administrative Appeals Tribunal (AAT). In the course of the proceedings, Ms McHugh's counsel requested that the Minister arrange and fund independent medical and psychological examinations to assess her intelligence, neurological condition, and history of trauma, and sought concessions or orders for the Tribunal to accept these alleged impairments as extenuating circumstances mitigating her criminal record.

The primary legal issues before the Tribunal were whether it had the power to compel the Minister to arrange and fund independent medical and psychological examinations of Ms McHugh, and whether it had a duty to obtain further medical or psychiatric evidence concerning her alleged impairments. Ms McHugh's counsel argued that these impairments constituted extenuating circumstances relevant to the holistic character assessment required by the Citizenship Procedural Instructions, and that the Tribunal's inquisitorial function and statutory duties under the Administrative Appeals Tribunal Act 1975 (AAT Act) necessitated ordering the Minister to obtain this evidence, particularly given Ms McHugh's impecuniosity and alleged intellectual impairment.

The Tribunal reasoned that on review, it must make a fresh decision based on the materials before it and address the same statutory questions as the original decision-maker, including whether it is satisfied Ms McHugh is of good character. While the Tribunal must act rationally and consider probative evidence, particularly when findings have serious consequences, and has a duty to ensure parties have a reasonable opportunity to present their case, it does not have the power to compel an applicant to undergo medical or psychiatric examinations against their will. Furthermore, the Tribunal held that it does not have a duty to obtain further medical or psychiatric evidence itself, nor can it compel the Minister to do so. The Tribunal noted that while the Minister must use best endeavours to assist the Tribunal, and parties must assist in fulfilling the Tribunal's objectives of providing accessible, fair, just, economical, informal, and quick review, these duties do not extend to compelling the Minister to obtain expert reports at the applicant's request.

The Tribunal refused Ms McHugh's request for the Minister to arrange and fund independent medical and psychological examinations, and consequently refused to order the Minister to obtain these reports. The Tribunal indicated that it would consider the existing materials regarding Ms McHugh's social background, mental health, and drug use as mitigating factors, but would not compel the Minister to obtain further evidence.