MZAQB v Minister for Immigration
[2017] FCCA 161
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAQB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 161 |
| Catchwords: MIGRATION – Mental capacity of applicant to participate in Tribunal hearing – medical evidence showing applicant with mental infirmity – jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 425 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 |
| First Applicant: | MZAQB |
| Second Applicant: | MZAQC |
| Third Applicant: | MZAQD |
| Fourth Applicant: | MZAQE |
| Fifth Applicant: | MZAQF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 9 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 7 September 2016 |
| Date of Last Submission: | 14 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| First Applicant in person |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondents: | Clayton Utz |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 8 December 2014.
An order in the nature of a writ of mandamus issue directing the
second respondent to hear and determine the application for review according to law.
The first respondent pay the applicants’ costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 9 of 2015
| MZAQB |
First Applicant
| MZAQC |
Second Applicant
| MZAQD |
Third Applicant
| MZAQE |
Fourth Applicant
| MZAQF |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The question in this application for judicial review was whether the second applicant was competent to participate in the proceeding before the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), by reason of her mental health. If she was not, the Tribunal fell into jurisdictional error.
Synopsis
For the reasons that follow, in my judgment the second applicant did not possess the requisite capacity to participate in the hearing before the Tribunal.
These reasons will make more sense when the relevant legal principles are set out ahead of a consideration of the factual scenario in the case.
Relevant legal principles
Three important decisions bear upon the outcome of this case, two of the Full Court of the Federal Court of Australia and one of the
High Court of Australia. The two Full Court of the Federal Court decisions are Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[1] (“SCAR”) and Minister for Immigration and Citizenship v SZNVW[2] (“SZNVW”). The decision of the High Court of Australia is SZFDE v Minister for Immigration and Citizenship[3] (“SZFDE”).
[1] [2003] FCAFC 126.
[2] [2010] FCAFC 41.
[3] [2007] HCA 35.
It is important to point out at once that the learning in SCAR remains good law. The Full Court in SZNVW said as much at [73].
In SCAR, the issue of importance related to the ability of the visa applicant to properly take part in the hearing before the Tribunal by reason of his mental capacity. The primary judge concluded that the visa applicant “was not in a fit state to represent himself when the Tribunal considered the application”.[4] The Full Court addressed the elements of s.425 of the Migration Act 1958 (Cth) (“the Act”), agreeing with the observations in Liu v Minister for Immigration and Multicultural Affairs[5] and stated that the statutory obligation under s.425 of the Act to provide a real and meaningful invitation exists whether or not the Tribunal is aware of the actual circumstances that would defeat that obligation. The Full Court said those circumstances include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. The Full Court said failure to comply with the requirements of s.425 of the Act involved jurisdictional error.
[4] [2007] HCA 35 at [22].
[5] [2001] FCA 1362.
In SCAR, psychological evidence existed to the effect that on the day of the Tribunal hearing, the visa applicant was in “no condition to handle this interview”[6] at the Tribunal. The judge at first instance held that the applicant was treated (albeit innocently) unfairly by reason of the applicant’s emotional and medical condition. The judge at first instance took the view that the Tribunal did not make a bona fide attempt to exercise its power by reason of the unfair treatment the applicant received. The Full Court did not necessarily embrace the concept of bona fides.
[6] [2003] FCAFC 126 at [12].
In SCAR, the Full Court pointed out that under Australian law, judicial review is limited to jurisdictional error and that courts,
when determining whether a particular error of fact or law amounts to jurisdictional error, must consider the relevant statutory context, citing Project Blue Sky Inc v Australian Broadcasting Authority.[7] Under the particular statutory regime of the Act, the Full Court held that the invitation under s.425 of the Act for a visa applicant to attend the hearing “must not be a hollow shell or an empty gesture”,[8] citing Mazhar v Minister for Immigration and Multicultural Affairs.[9]
[7] [1998] HCA 28.
[8] [2003] FCAFC 126 at [33].
[9] [2000] FCA 1759.
The Full Court referred to the concession by the parties that the Tribunal had fallen into jurisdictional error if it proceeded in circumstances where the visa applicant had been unable to understand the proceeding.
Ultimately, the Full Court held as follows –
Given the findings of fact made by the primary judge that the respondent was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s425 of the Act was not a meaningful one. Through no fault of the Tribunal it was not aware of this. Even so, the Tribunal did not comply with s425 of the Act. It did not extend a meaningful invitation to the respondent. The respondent did not receive the fair hearing required by the Act. Consequently the Tribunal made a 'jurisdictional error.'[10]
[10] [2003] FCAFC 126 at [41].
The Full Court held that the Tribunal’s decision was invalid.
The decision in SCAR was analysed in 2010 by a differently constituted Full Court in SZNVW (Keane CJ, Emmett and Perram JJ). It is fair to say that the decision in SCAR has not enjoyed universal acclaim.
The reason for that was identified by Perram J where his Honour said that SCAR had been a running source of debate by reason of the fact that an invitation may not be “real, meaningful and not merely formalistic”[11] if the ensuing hearing was frustrated by a visa applicant’s lack of fitness to represent himself or herself even when that lack of fitness was not known to the Tribunal. Perram J said that some judges of the Federal Court of Australia have wondered how the Tribunal can breach its duty to issue an invitation under s.425 of the Act by reason of a state of affairs of which it is ignorant. His Honour held as follows –
There is no doubt, however, that SCAR presently represents the established jurisprudence of this court. It has not been reversed and continues in force.[12]
[11] [2010] FCAFC 41 at [73].
[12] Ibid.
“Unfairness” that so heavily influenced the judge at first instance and the Full Court in SCAR, ultimately bearing upon the outcome in that litigation, was of lesser importance in SZNVW and also in SZFDE. Perram J in SZNVW drew together the threads of learning between paragraphs 78 and 88 of his Honour’s reasons. His Honour referred to the decision of French J (as the Chief Justice then was) when dissenting as a member of the Full Court of the Federal Court in SZFDE. There, in dissent, French J said the following –
What emerges from the authorities referred to above is that procedural unfairness, not attributable to a decision-maker, may arise in connection with the making of a decision when a person’s exercise of the right to be heard before the decision is made,
is compromised or lost through no fault of that person.That circumstance does not however establish a sufficient condition for a finding of procedural unfairness.[13][13] [2010] FCAFC 41 at [78].
That statement was approved by the High Court in SZFDE.
Subversion of the operation of s.425 of the Act also subverts the observance by the Tribunal of its obligation to afford procedural fairness to an applicant for review. That much was held by the
High Court in SZFDE at paragraph 32 of its reasons.
Returning to SZNVW, at paragraph 82 of the Court’s reasons Perram J identified that the subversion of the intended operation of s.425 of the Act meant that the Tribunal had not only failed to accord the visa applicant procedural fairness but also that the Tribunal had failed to discharge its imperative statutory functions with respect to the conduct of the review.
His Honour held at paragraph 83 that the question was not whether the applicant had or had not been treated fairly – rather, the question was whether the procedure contemplated by s.425 of the Act had been subverted. His Honour held that the subversion mattered because,
if established, it undermined the due operation of Pt.7 of the Act.
His Honour held that as s.425 is an exhaustive statement of the requirements of natural justice (that much is the tenor of s.422B of the Act) the only issue in a s.425 context is whether the process contemplated by Pt.7 of the Act had been carried into effect and the “fairness – one way or the other - of that process is not germane to that inquiry”.[14]
[14] [2010] FCAFC 41 at [83].
Perram J held that the Tribunal may be held to have conducted no review in a variety of circumstances falling short of complete incapacity on the part of the applicant.
In SZNVW, Keane CJ (as his Honour was prior to appointment to the High Court of Australia) held that nothing in the Act suggested that the Tribunal was duty-bound to press an applicant to call further evidence on a particular issue or to seek an adjournment of the hearing to enable the applicant to do so, or to take upon itself the role of ensuring that all possible lines of argument which might be available to an applicant in any given case were pursued to the applicant’s best advantage.
Keane CJ also held that on the facts of that case, there was no suggestion that the applicant’s capacity to make decisions in his own best interests was impaired by his condition. In SZNVW, the Full Court held that the applicant’s essential complaint, very different to the applicant’s complaint in SCAR, was an error in the presentation of his case.
What emerges from SCAR, SZNVW and SZFDE?
It seems to me that it is possible to identify a collection of principles that appellate courts have stated about the effect of an applicant’s capacity upon the hearing in the Tribunal –
a)first, an invitation under s.425 of the Act to attend a hearing must not be “a hollow shell or an empty gesture”;[15]
b)second, subversion of the operation of s.425 of the Act also subverts the observance by the Tribunal of its obligations to afford procedural fairness to the applicant seeking a review;[16]
c)third, where by subversion of the observance by the Tribunal of its obligation to afford natural justice, the Tribunal fails to discharge its imperative statutory function;[17]
d)fourth, fairness is not germane to the question whether the process contemplated by Pt.7 of the Act has been carried out;[18]
e)fifth, procedural unfairness not attributable to the decision-maker, may arise when a person’s exercise of the right to be heard prior to the making of the decision is compromised or lost through no fault of the applicant;[19] and
f)sixth, jurisdictional error will exist where a visa applicant is unable to understand the proceeding before the Tribunal.[20]
[15] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [33] citing Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759.
[16] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
[17] Ibid.
[18] Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41.
[19] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
[20] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126.
A brief narration of the facts
The first applicant is an Indian citizen. He arrived in Australia on
5 January 2008 holding a Student (Class TU) (subclass 573) visa, initially valid until 14 February 2008 but later extended to
15 March 2010.
The second applicant is also an Indian citizen. She arrived in Australia on 21 January 2008 as dependent on the first applicant’s visa.
Three children, the third, fourth and fifth applicants, were born in Australia to the first and second applicant.
Before the expiration of the first applicant’s visa in March 2010,
the first and second applicants applied for a Student (Class TU) (subclass 572) visa. On 28 May 2010, the delegate of the
first respondent (“the Minister”) refused that visa application.
On 5 March 2012, the Tribunal affirmed the delegate’s decision.
On 2 April 2012, the first and second applicants applied for ministerial intervention. On 17 July 2012 ministerial intervention was refused.
On 21 February 2013, the first and second applicants applied for protection visas.[21]
[21] Court Book filed 2 July 2015 at pp.1-198.
On 6 March 2014, the minister’s delegate found that Australia did not owe either the first or second applicant protection obligations and they did not meet the criteria for complementary protection.[22] The delegate decided to refuse the visa applications. The delegate stated that the
first and second applicants lacked credibility.
[22] Court Book filed 2 July 2015 at pp.315-332.
On 11 April 2014 the first and second applicants applied to the Tribunal for the review of the delegate’s decision.
On 5 November 2014 the applicants filed written submissions through a representative.[23]
[23] Court Book filed 2 July 2015 at pp.393-395.
On 13 November 2014 the first and second applicants gave evidence to the Tribunal and made submissions.
On 1 December 2014, in response to a written invitation by the Tribunal, the first and second applicants provided the Tribunal with written submissions from their representative.[24] The first and second applicants contended that they had a well-founded fear of persecution on Convention grounds and they asserted an entitlement to complementary protection obligations.
[24] Court Book filed 2 July 2015 at pp.414-417.
On 8 December 2014 the Tribunal affirmed the delegate’s decision not to grant the applicants the protection visas for which they applied.[25]
[25] Court Book filed 2 July 2015 at pp.421-452.
Being dissatisfied with the Tribunal’s decision, the first and second applicants applied to this Court for judicial review of the Tribunal’s decision dated 8 December 2014.[26]
[26] Application filed 5 January 2015.
This case came before Registrar Caporale on 15 April 2015 at which time the Registrar ordered the applicants to file and serve written submissions 42 days prior the final hearing listed on 7 September 2016.
The applicants did not comply with the Registrar’s orders in that they did not file any documents, whether 42 days prior to the hearing or at all.
As result, the written submissions of the Minister[27] stated that the Minister responded directly to the initiating application by which this proceeding was commenced. Counsel for the Minister, Mr Brown,
did a creditable job in formulating submissions that responded directly to the application. The grounds of review were well-nigh unintelligible. They read as follows –
At issue in this application is need to be review because we not happy of this decision Tribunal member not asking any question about my case he just ask did you went to China, did you went to South Africa UAE non of these question related to my case in my point of view he just putting more pressure on my minde and I already had a problem to recall my remarks and high blood pressure problem and I can’t even remember my kids birthdays I want request to member of FEDRAL CIRCUIT CURT to please give me Right decision of my case. Thanks[28]
[27] The First Respondent’s Outline of Submissions filed 24 August 2016.
[28] Application filed 5 January 2015 at p.3.
Anticipating a debate about ill health, Mr Brown’s written submissions contained paragraph 26 in the following terms –
It is also possible that the applicants seek to impugn the Tribunal’s decision because the ill health of one or more of the applicants meant they did not obtain a “real and meaningful” hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 533 [37]. However, there is no evidence before the Court that any of the applicants were unable to obtain a fair hearing for health or medical reasons.[29]
[29] The First Respondent’s Outline of Submissions filed 24 August 2016.
In the hearing before me, the first applicant appeared unrepresented but with an interpreter. Mr Brown appeared for the Minister. In accordance with my usual practice in migration cases where an applicant is unrepresented and the Minister is a model litigant, I requested
Mr Brown to outline in neutral terms the facts giving rise to the application and the basis of the application for judicial review.
Mr Brown helpfully complied.
Prior to my hearing from the first applicant, Mr Brown perfectly properly and candidly pointed out that the Tribunal can, innocently but unwittingly, commit jurisdictional error where an applicant’s mental health is such that he or she does not receive a fair hearing, even if the Tribunal is unaware of the applicant’s mental health. Mr Brown added that I would need evidence about the mental health of the applicant during the hearing in order to know whether a real and meaningful hearing was in fact conducted by the Tribunal. Mr Brown pointed out that no such evidence was before me on 7 September 2016.
The following exchange took place –
HIS HONOUR: So on that analysis you would imagine that there would not be any evidence before the tribunal but possibly behaviour or a non-responsive attitude by the applicant might be evident; who knows. The evidence of mental health issues would emerge for the first time before me. Is that right?
MR BROWN: Yes, that’s right.
HIS HONOUR: But how would the applicant be permitted to adduce that evidence?
MR BROWN: It goes to the jurisdiction. So if the hearing in fact was abuse – I will be colloquial – was not fair because of the applicant’s mental health at the time, the only way that can be introduced is through fresh evidence before your Honour. There are some exceptions when fresh evidence can be introduced. This is one of them.
HIS HONOUR: But at the very least you would expect there to be something, preferably medical evidence?
MR BROWN: Yes.
HIS HONOUR: But something to indicate a want of capacity.
MR BROWN: Yes. Correct.
HIS HONOUR: None before me …[30]
[30] Transcript of Proceedings, 7 September 2016 at p.14.
In response to my invitation for the first applicant to tell me what he wanted me to consider, the first applicant, through the interpreter, embarked upon an excursus into factual matters. I required him to enter the witness box and to tell me about those things on oath, which he did. He told me that his wife, the second applicant, suffered a mental health issue three years ago following which she was admitted to Footscray Hospital and at that stage, she was not recognising the
first applicant. I asked him whether any medical practitioner diagnosed his wife’s mental condition and if so, what that diagnosis was. He said she was seen by a specialist and stayed 10 days in the hospital.
The first applicant said he told the Tribunal that his wife was affected by mental health issues. He said he told the Tribunal that the nature of his wife’s mental health issues was such that she could not meaningfully participate in the Tribunal hearing. The first applicant said his wife was consulting a counsellor every fortnight.
As result of that information, Mr Brown said that it raised the possibility of the second applicant suffering from mental ill health. Precisely when she suffered from any such mental health issue became important. I gave the first and second applicants leave to adduce further medical evidence about the second applicant’s mental capacity so as to participate in the Tribunal’s hearing.
The medical condition referred to by the Tribunal
The Tribunal’s reasons did in fact disclose certain evidence the
second applicant gave that bore upon the issue of the
second applicant’s mental health. It seems that the Tribunal gave no or little weight to that evidence in view of the Tribunal’s overall assessment of her veracity, finding as it did that she was not a credible witness.
Two things must be said about the Tribunal’s conclusions in relation to the first and second applicants’ credibility –
a)
first, the Tribunal’s reasons were provided on 8 December 2014. Since then, the Full Court of the Federal Court of Australia has extensively considered the issue of witness credibility in
CQG15 v Minister for Immigration and Border Protection[31](“CQG15”). In view of the observations of the Full Court in that case, the Tribunal’s observations about witness credibility in this case may not survive close scrutiny. That said, I make no definitive conclusion on that point; and
b)second, jurisdictional error along the lines of SCAR, SZNVW and SZFDE will, if established, render unimportant credit findings by the Tribunal or findings about credibility. If established, jurisdictional error is precisely that – jurisdictional error.
[31] [2016] FCAFC 146.
The Tribunal referred to the second applicant’s evidence bearing upon mental health issues in its reasons at paragraphs 59, 60, 70, 75, 80 and 84. In none of those paragraphs did the Tribunal give any consideration, let alone consideration to the requisite degree, of the second applicant’s mental health issues. In paragraph 59, the Tribunal used the following phrase but moved on to another topic –
She replied that she had been admitted to hospital in 2010 because of mental health problems.[32]
[32] Court Book filed 2 July 2015 at p.433.
In paragraph 84 of its reasons, the Tribunal referred to the
second applicant’s depression and migraines then found that the evidence the second applicant gave was an attempt to address inconsistencies in her evidence.
Nowhere did the Tribunal embark upon any examination of the
second applicant’s capacity. Instead, the Tribunal focused (in my view unduly and erroneously) on witness veracity and credibility.
The additional medical evidence
In compliance with the orders I made on 7 September 2016, the
first and second applicant did in fact adduce further medical evidence.[33] Mr Brown submitted that such evidence did not demonstrate as at the date of the Tribunal hearing that the second applicant was not given a meaningful hearing.
[33] Affidavit filed 7 October 2016.
I disagree.
It is necessary for me to go to a significant portion of the medical evidence to make good that point.
The first applicant gave evidence in an affidavit sworn 4 October 2016, purportedly in pursuance of the orders I made on 7 September 2016.
I was not assisted by that evidence as I was particularly keen to learn of the medical aspects of the second applicant’s mental condition that impacted upon her capacity to participate in the Tribunal’s hearing.
The first applicant’s affidavit did not assist in that regard.
The second applicant relied on a report dated 26 February 2015 from consultant psychiatrist, Dr Manjula O’Connor.[34] It is important to bear in mind that the Tribunal hearing was 13 November 2014, a small number of weeks earlier. In Dr O’Connor’s report, she stated that the second applicant had been suffering a “severe depressed mood, and suicidal thoughts for two years”.[35] Dr O’Connor reported that the second applicant told Dr O’Connor that she (the second applicant) felt that “life [was] not worth living. It [was] all too hard; she feels it would be easier if she died”.[36] In terms of the second applicant’s mental state examination, Dr O’Connor reported that the second applicant’s mood was “[s]evere sadness, depressed mood. She is suicidal”.[37] Dr O’Connor diagnosed the second applicant with a severe depressive illness of two years duration and a high anxiety disorder, also of two years duration.
[34] Affidavit filed 7 October 2016 at exhibit “MZAQB-2”.
[35] Affidavit filed 7 October 2016 at exhibit “MZAQB-2”.
[36] Ibid.
[37] Ibid.
In a report dated 5 July 2015 from Western Health,[38] reporting on a pregnancy care visit on 6 March 2015, the report writer stated that the second applicant was feeling suicidal at times, feeling “like killing her children”.[39]
[38] Affidavit filed 7 October 2016 at exhibit “MZAQB-3”.
[39] Ibid.
In a report dated 26 March 2015,[40] Dr Carolyn Breadon, psychiatrist of the Perinatal Emotional Health Program, Mid West Area Mental Health, Sunshine Hospital reported that the second applicant suffered symptoms of severe depression and anxiety.
[40] Affidavit filed 7 October 2016 at exhibit “MZAQB-4”.
In notes produced by Northwest Mental Health dated 20 October 2015,[41] the report writer stated that the second applicant was referred from Mid West Mental Health Service in March 2015 with partial paralysis and later with high distress to the extent she was not able to remember who she was or that she had a family.
[41] Affidavit filed 7 October 2016 at exhibit “MZAQB-5”.
In a report dated 23 April 2015 from Department of Health and Human Services,[42] the report writer stated as follows –
At the time of the Protection Application, [the second applicant’s] mental health was of serious concern and she has admitted to hitting the children with a fry pan, and also did acknowledge that she had made threats to kill the children.[43]
[42] Affidavit filed 7 October 2016 at exhibit “MZAQB-6”.
[43] Affidavit filed 7 October 2016 at exhibit “MZAQB-6”.
Other information was proffered by the second applicant but it was either too remote to the date of the Tribunal’s hearing or it was information that was not of a sufficiently probative medical nature to be useful to me.
It may fairly be stated that no evidence was adduced that linked the second applicant’s mental health issues to the specific date of the Tribunal’s hearing, 13 November 2014. While that may be true,
the medical evidence that was adduced did show that as at the date of the relevant report, the second respondent was suffering from a significant mental infirmity. Severe depression and suicidal tendencies were among them. As a matter of common human experience,
those matters do not materialise overnight. The first of those was reported among the evidence on 26 February 2015 in Dr O’Connor’s report. In that report, the second applicant had exhibited suicidal thoughts for two years, that is to say, when the Tribunal hearing was conducted.
In July 2015 the applicant was reported as feeling, as at 6 March 2015, “like killing her children”.[44]
[44] Affidavit filed 7 October 2016 at exhibit “MZAQB-3”.
It seems to me to be more probable than not that the second applicant’s severe depression, her suicidal thoughts and her thoughts of killing her own children were evident by the date of the Tribunal hearing in November 2014.
I accept that there is no direct evidence by which a psychiatrist has said that on the specific date of 13 November 2014 the second applicant’s mental condition was such that she was unable to meaningfully participate in the Tribunal’s hearing. That is undeniably true. But other evidence existed on which I was able to rationally and reasonably find that as at 13 November 2014, on the balance of probabilities,
the second applicant’s mental condition was such that she was unable to meaningfully participate in the Tribunal’s hearing. She had suffered severe depression for an extended time by then. The second applicant had formed suicidal thoughts by then. She had even formed an intention to kill her own children.
In over 35 years of practice in the law, I have not previously encountered a person who was severely depressed, who was herself suicidal and who wanted to kill own children, all supported by independent expert medical evidence. In the face of that state
of affairs, it seems to me to be more probable than not that on
13 November 2014, the second applicant was not of sound mind when giving evidence to the Tribunal.
What the Tribunal knew
It seems apparent enough that the Tribunal was not appraised of all or any of the medical evidence that was adduced in the 4 October 2016 affidavit of the first applicant. Mr Brown was correct when he submitted in writing that none of the material that was the subject of the 4 October 2016 affidavit was before the Tribunal.
However, for reasons set out above, an applicant’s mental health may, or may not have been known to the Tribunal when the Tribunal decided upon the review from the delegate. The point is largely academic as jurisdictional error does not depend on the state of the Tribunal’s actual knowledge, as is revealed by the survey of the authorities above.
It seems to me to be beyond question that in the circumstances of this case, the second applicant was seriously afflicted with very considerable mental health issues on and prior to the date of the Tribunal hearing. Those mental health issues rendered it more likely than not that the second applicant was unable to meaningfully participate in the Tribunal hearing. It must not be forgotten that at or about the date of the Tribunal hearing, the second applicant had formed suicidal thoughts and homicidal thoughts in relation to her own children. To my mind, those pieces of evidence are not consistent with a person of sound mind, or at least, with a person capable of meaningfully participating in the Tribunal hearing.
The outcome
In SCAR, the Full Court of the Federal Court of Australia held that jurisdictional error follows where the applicant is unable to understand the proceeding before the Tribunal. SCAR is still good law as was explained in SZNVW and the principles pronounced by SZFDE.
That proposition remains good law. I propose to follow it.
In my view, the Tribunal fell into jurisdictional error in this case.
It may have done so unwittingly and innocently. But the fact remains that as at the date of the Tribunal’s hearing, the second applicant’s mental condition was extremely poor. At the very least, her own suicidal tendencies and her homicidal intentions towards her children were extraordinarily concerning.
The Tribunal found the second applicant to be a witness of questionable credibility. If that conclusion was open, and in view of the holding of the Full Court in CQG15 such a conclusion may no longer be open, it seems to me that the issue in this case transcended witness credibility. A very significant jurisdictional issue was exposed. I have found that the Tribunal fell into jurisdictional error.
Under those circumstances, constitutional writs must issue.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 2 February 2017
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