MIMIA v SGLB

[2003] HCATrans 296

[2003] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A186 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

SGLB

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 11.40 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR S.B. LLOYD for the applicant.  (instructed by Sparke Helmore)

MR S. WALSH, QC:   If the Court pleases, I appear with my learned friend, MR S.C. CHURCHES, for the respondent.  (instructed by Refugee Advocacy Service of South Australia Inc)

GLEESON CJ:   Mr Walsh, we thought we would like to hear from you.

MR WALSH:   Thank you, your Honours.  If the Court pleases, it is our submission that the special leave points raised by my learned friend do not truly arise in the case so far, but that if they do, then this is not a suitable vehicle.  The reason we say that, in short, is that this is, in truth, a case about procedural unfairness, not an issue, but it gives rise to the issues raised by my learned friend, the “no evidence” rule or the “Wednesbury reasonable” test in another guise, or the other issues raised.

It can be tested in this way initially.  Let us assume that a person has a judgment cast upon him or her and they are not there at all.  That is procedural unfairness in a classical form.  Let us assume, as an alternative, that the person is there but that the person is drugged, in other words, incapable of understanding what it is before the Tribunal.  Again, that is a classical case of procedural fairness.

Let us assume then that a person has a psychiatric disorder and that that person does not understand the quality of evidence or questioning that is being put, or is disorientated in some way.  Again, that is a classical case of procedural unfairness.  Now, in our respectful submission, whatever might have been said in terms of the words used by his Honour Justice Selway, when one looks behind the reasons of the learned judge, that is the issue that arises here, because the Tribunal, as we know from the
Tribunal reasons, made a determination that there was something very wrong with this man, and made a finding of fact that he suffered post‑traumatic stress disorder.

GLEESON CJ:   The Tribunal just accepted a submission that was put by the applicant’s representative.

MR WALSH:   Precisely, but what the Tribunal also did was to reject an application that evidence be obtained from an appropriate expert to determine what that then meant to the applicant himself.  Can I take your Honours to the judgment of his Honour Justice Selway to explore the issue?  I take your Honours to page 67.  In short, if one follows down the reasoning of his Honour Justice Selway, he refers at point 7 of the transcript to the Tribunal hearing.  He noted at point 10:

When asked by the Tribunal member “what problems he might have if he went back to Iran now” he responded that he would rather take his own life –

and so forth.  I will not take you through all that is read there, but if one goes to the foot of that page, one can see that in a quote from the transcript in the decision of the Tribunal they say this, in the last two lines:

We are not attempting to impugn the Woomera camp psychologist’s ability, but contend that a further, more independent and expert assessment be undertaken to determine [the applicant’s] state of mind and whether there can be justified links to his past claims of trauma and persecution –

in other words, an expert assessment to determine the source of such behaviour.

GLEESON CJ:   Just before you pass from that, on page 28, at line 20 in the reasons of the Tribunal member, the Tribunal member, rightly or wrongly, appears to have understood the request for an assessment to be made for the purpose of confirming something and the Tribunal declined the request, because the Tribunal was prepared to accept that which was sought to be confirmed.  Is that an indication that the Tribunal misunderstood the nature of the request?

MR WALSH:   The Tribunal misunderstood the nature of what it ought to do as a result of the request.  Once the Tribunal ‑ ‑ ‑

GLEESON CJ:   Well, was it merely a request in order to confirm something?  You see the sentence that reads:

I have not agreed to his adviser’s request that he be assessed by a psychologist in order to confirm this.

Was that some kind of misrepresentation or misunderstanding by the Tribunal?

MR WALSH:   No, we are not suggesting that, your Honour, but we say that something flows from the decision that then flowed.  That was actually quoted by his Honour Justice Selway, that passage, at the foot of page 68 also.

GLEESON CJ:   Where do we find what exactly the adviser requested?

MR WALSH:   There is a document that my learned friend has attached to his documents provided to the Court.  Just before we turn to that, if we must, can I put this to the Court.  Our proposition is that once the Tribunal had found, at the foot of page 68, as it is quoted by his Honour Justice Selway, that they had not agreed to the “adviser’s request that he be assessed by a psychologist in order to confirm” the post‑traumatic stress disorder, they then concluded they did not need to do it, because:

That is because I consider it highly likely that [the applicant] is suffering from –

that condition.  But what that ignored, at that point having accepted that fact, was that there was no proper evidence, we say, that the Tribunal then had before it to determine how it related or affected this man, other than the report of Gracie, the psychologist.

CALLINAN J:   But the psychologist could not give evidence whether the applicant was telling the truth or not, or whether the applicant’s story was true or not.

MR WALSH:   Of course not.

CALLINAN J:   All that the psychologist could say is that possibly, or probably, the applicant’s claim and evidence may have been or were affected by his mental state, and the Tribunal was prepared to assume that there was such an effect on his mental state.

MR WALSH:   Yes, but they did not have, then, information from an appropriate expert to explain what the condition then meant.  You see, the psychologist impliedly assumed that there was not a condition.  They said that he had these problems.  Gracie, the psychologist, acknowledged that he had problems, but thought that there was no effect upon him – he could think rationally and there was not any difficulty. 

Implicit in what the Tribunal did, in finding that he had post‑traumatic stress disorder as a matter of fact, is that it was an implied rejection of the psychologist’s evidence.  But then, having done so, with no evidence before it to say what the effect of post‑traumatic stress disorder meant – which was the diagnosis that it was accepting – went on to assume, because of something said in that psychologist’s report, that he could make a rational decision and answer correctly.

GLEESON CJ:   Now, what exactly did the representative of your client request?

MR WALSH:   If one turns to page 67 at the foot, there is another quote and it refers, at point 20, to what the representative provided:

“We address the very worrying and complex issue of our client’s psychological and emotional condition.  Considering that [the applicant’s] self‑harming has been happening over an extended period of time, we believe, may indicate considerably deeper trauma than reported by the Woomera camp psychologist –

that is Gracie –

In our view, it seems extreme to suggest that a person would continue to seriously attempt to take his life as a result of anger and self‑focus.  It is imperative that the source of this anger is assessed thoroughly by an expert in the field of psychology or psychiatry to enable the Tribunal to know its true source.  We also question the camp psychologist’s statement that he has no remorse or reflection on his behaviour.  From a layman’s observation, our client’s behaviour does not have a rational basis and his Barrister Mark Cox has observed that [the applicant] sometimes does not even remember what he has done.  We are not attempting to impugn the Woomera camp psychologist’s ability, but contend that a further, more independent and expert assessment be undertaken to determine [the applicant’s] state of mind and whether there can be justified links to his past claims of trauma and persecution.

CALLINAN J:   Mr Walsh, can I just draw your attention to what Justice Selway said on page 69, at about line 11, that:

the Tribunal was not entitled to diagnose the appellant as suffering from –

post‑traumatic stress.  The Tribunal did not do that, for a start.  The Tribunal was prepared to make that assumption in the applicant’s favour.  So it seems to me, with respect, that his Honour is wrong when he says that, and then for his Honour to go on to say: 

To do so was an error as to jurisdiction –

seems to me to be equally wrong.  How can that possibly be an error of jurisdiction?  The Tribunal – she took a view of the facts.  The nature of that view is, with all due respect to Justice Selway, misstated by his Honour, but even if his Honour had correctly stated what the Tribunal did, how can that possibly be an error of jurisdiction?

MR WALSH:   Your Honour, we put the proposition a little differently.  In response to your Honour’s question, we said at the beginning that we say that, underlying the reasoning of the judge as a whole, there is an issue of procedural unfairness.

CALLINAN J:   Do you accept that his Honour is in error when he says that that “was an error as to jurisdiction”?

MR WALSH:   We accept that that may be.  It is arguable.

CALLINAN J:   How can it be arguable whether it was an error of jurisdiction?

MR WALSH:   In the light of what follows, your Honour, because the two go together, we say.  What he said then, at page 69, was that:

The second problem is that, even if the appellant is suffering from PTSD there was no evidence before the Tribunal, other than the quotations from the Turner report referred to above, which would enable the court to assess the effects of PTSD on the creditability of the appellant.

That is the critical issue.  Now, what has happened, if I may just pause, is this, that the Tribunal has obviously been impressed, upon observing this man, that there was something apparently – from a layman’s point of view ‑ very wrong with him.  The Tribunal had a psychologist’s report which suggested that on the face of it, although he was exhibiting some unusual symptoms, there was not really anything that would prevent him from continuing with the ‑ ‑ ‑

CALLINAN J:   Mr Walsh, in a trial, rather than proceedings of this kind, no court is ever fully equipped with all of the ways, means and materials of verifying where the truth lies.  Courts and tribunals do the best they can on the materials before them.  Justice Selway has held, and it seems to me, correctly, with respect, that the Tribunal was under no duty to obtain any further report.

MR WALSH:   Quite, but once the Tribunal ‑ ‑ ‑

CALLINAN J:   That is at page 69.

MR WALSH:   Yes, he did say that, your Honour, and that is why that issue does not arise, contrary to the submissions of my learned friend.  But focusing back on the point that your Honour raises at the moment, the issue is a little more complex than it appears, because once the Tribunal made its own decision that this man had, in fact, what is understood to be a psychiatric disorder – apparently accepting that because of the way he presented – once they decided that, they had no way in which they could then proceed forward to undertake the function that they had as a decision‑maker, which became the Minister’s decision under the Act.  They had no way to proceed forward until they understood the consequences of that condition.

GLEESON CJ:   Is this a procedural unfairness point?

MR WALSH:   It is, indeed, your Honour.

GLEESON CJ:   Was that the way Justice Selway decided it?

MR WALSH:   Your Honour, the way he has argued it, it permeates, we say, in truth, his reasoning process.  Initially, it appeared on first blush.  The way Justice Selway was articulating it was on the basis that it was just errors of law – three problems which were an error of law.  But when one goes behind the reasoning process, understands what it was that he thought was important from the quotations that he has put in his judgment, and then stands back to say, well, what is really the issue in this case, it must be that what his Honour is saying is that because there was no evidence about the effect of post‑traumatic stress disorder on this person, the hearing has miscarried, because until you know what the effect is – having accepted that he has it – then you cannot make a rational decision about anything.  You cannot decide.

So if one looks at paragraph 16 at page 69, that is what his Honour is, in truth, saying, but even if his Honour has not precisely articulated that point, it is clear that that is what he must be saying.  One can understand that that must be so.  How can it possibly be said that if a Tribunal makes a decision without any evidence from, for example, a psychiatrist or an expert about post‑traumatic stress disorder, “Yes, we accept that he’s got that” and they do so, presumably, on some evidence before them, because of the way he was behaving – and much was said about that – they cannot then, having no knowledge of what that then means in terms of the applicant, say that this man has had a hearing, when they do not know what his appreciation of the process is and whether his credibility or otherwise is tainted by his disorder.  How can it possibly have said otherwise?

If that is true, then this is a classic case of a denial of natural justice, a classic case of procedural unfairness.  It has nothing to do with the “no evidence” rule, it has nothing to do with the “Wednesbury reasonable” test and the reference to that issue in Eshetu’s Case and other cases, Chan, and more recently in this Court, only months ago.  That is not an issue that, in truth, arises here.

So whatever might be said in relation to this case, whether there is something lurking behind that might be said to involve some issue of fact in addition to the issue that we say is the principal issue of one of procedural fairness, this is hardly a suitable vehicle to ventilate the issues that my learned friend seeks to ventilate as special leave points. 

How could it be said, in our respectful submission, that this case raises the important issue of the question of the “no evidence” issue?  How can it be said that it raises the important issue of duty to inquire in the context that that is being put, because Justice Selway acknowledged there is no question of saying that this Tribunal had a duty to inquire about something or to make the applicant’s case, as it were.

What happened was that the Tribunal made its own decision that he had post‑traumatic stress disorder and thereby rendered itself incapable of making a decision as it was required to do under the statute.  So, in our respectful submission, when one looks at it from that point, those issues do not arise.

The competency issue is no more than this, that Justice Selway was acknowledging that this man, on the assumption that he had post‑traumatic stress disorder, may not have been competent to give evidence.  There is not a competency issue higher than that.  It is a simple evidentiary issue and capacity to give evidence and take part in the hearing, in that sense.

The final issue that is raised against us is, well, there should have been some process of reconciliation, the reconciliation that is said to arise as a result of the decisions of this Court.  But where there is an obvious case, as in the present, that there is an issue of procedural unfairness, the fact that that may be necessary in some cases is not so.  But even if it were, when one looks at this case, we do not need to worry about that issue, because one can clearly see what the principal issue is and it is a jurisdictional error that is relied upon.

So, if the Court pleases, they are our submissions and, in our respectful submission, the application should be dismissed.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Gageler.  In this matter there will be a grant of special leave to appeal.

MR WALSH:   Your Honour, can I raise one matter?  In the application, my learned friend said that, if it was to be granted, there was an agreement or, at least, there was an undertaking that costs would be paid in any event to the respondent.

GLEESON CJ:   Which costs are we talking about?

MR WALSH:   We are talking about costs of the appeal, if special leave was granted. 

GLEESON CJ:   What about costs of today?

MR WALSH:   We would understand that to be costs of today, as well.

GLEESON CJ:   That is what I wanted to understand.  Is that the position, Mr Gageler? 

MR GAGELER:   Yes, your Honour. 

GLEESON CJ:   Leave is granted on terms that the applicant must pay the respondent’s costs of today’s proceedings and of the appeal in any event.  Is there anything about the order for costs made by Justice Selway?

MR GAGELER:   We can leave that undisturbed, your Honour.

GLEESON CJ:   And the applicant undertakes that he will not seek to disturb the order for costs made by Justice Selway.

MR WALSH:   Thank you, your Honour.

GLEESON CJ:   We are going to adjourn for a couple of minutes to reconstitute.

AT 12.01 PM THE MATTER WAS CONCLUDED