MZXQF v Minister for Immigration - [2008] FMCA 177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXQF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 177

MIGRATION – Whether applicant with mental impairment at the hearing was denied a fair hearing – whether jurisdictional error.

Migration Act 1958 (Cth), s.414, 420, 424A, 425, 474
Federal Magistrates Court Rules 2001, r.44.11, 44.12

SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481
SZIWY v Minister for Immigration and Citizenship [2007] FMCA 1641
R v Hickman Ex parte Fox and Clinton (1945) 70 CLR 598
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 193 ALR 449
SZIWY v Minister for Immigration and Citizenship [2007] FMCA 1641

Applicant:

MZXQF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 573 of 2007

Judgment of:

Turner FM

Hearing date:

19 February 2008

Date of Last Submission:

19 February 2008

Delivered at:

Melbourne

Delivered on:

1 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr. J. Gibson

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Ms S. Birchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 11 April 2007 in case number 060929663.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine accordingly to law the application for review of the decision of the delegate of the first respondent dated 13 October 2006.
The First Respondent pay the costs of the Applicant fixed at $5,000.00 within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 573 of 2007

MZXQF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 11 April 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. Pursuant to r.44.11(c) the Court dispensed with a hearing under r.44.12 and proceeded with the final hearing.

Background

On 10 August 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application she claimed to fear persecution from the LTTE and the Sri Lankan Security Forces.
The application was refused by a delegate of the first respondent on

13 October 2006
(CB 65–72) and by the Tribunal on review on

11 April 2007
(CB 171–182).
The matter is now before this Court pursuant to an application for judicial review filed on 8 May 2007, and an amended application filed on 14 November 2007.

Issues for determination

The issues before the Court are as follows:
·Whether the applicant who was mentally impaired at the time of the Tribunal hearing was denied a fair hearing?
·Whether denial of a fair hearing is a jurisdictional error?

The application

In her application, the applicant set out 3 grounds. The application was abandoned at the hearing.
The amended application sets out the following grounds and particulars:
“1. The decision of the Tribunal was in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s.65 to grant or refuse the applications and its powers to conduct a review under s414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction”

Particulars
i) in that it misunderstood and/or misconstrued a criterion under s36 of the Act about which it had to be satisfied for the purposes of s65 and/or failed to consider an issue going directly to the question whether that criterion was satisfied and/or a central element of the applicant’s claim
(a) It failed to deal with an integer and/or element and/or relevant consideration being the applicant’s fear of persecutory repercussions in the future from the LTTE as a composite and/or cumulative claim based on her past conflict with the LTTE (which the Tribunal accepted) and her refusal to assist their cadres in the past and her anticipated refusal to do so on return.
(b) It failed to deal with an integer and/or element of the claim and/or a relevant consideration being the applicant’s fear of harm as a Tamil and a Tamil from Colombo if she were to return to Sri Lanka.

2. The decision of the Tribunal was made in beach of an imperative duty imposed upon it or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 of the Act to grant or refuse the applications and its powers to conduct a review under s414 of the Act.
The Tribunal exceeded its jurisdiction and/or constructively failed to exercise by reason of a breach of the rules of natural justice and/or a denial of procedural fairness in not providing the Applicant with the hearing provided for as a express requirement of Division 4 of part 7 of the Act.”

Only ground 1(i)(a) and 2 were pursued at the hearing.

Findings of the Court in relation to the grounds in the amended application

Ground 1 alleges that the Tribunal failed to exercise its jurisdiction.
Particular (i) alleges that the Tribunal failed to consider the criteria that had to be met by the applicant, by:
(a)failing to deal with an integer of the claim being the applicant’s fear of persecutory repercussions from the LTTE in the future.
Ground 2 largely repeats ground one and then alleges a denial of natural justice and a breach of Division 4 of the Migration Act 1958 (“the Act”). It is alleged that the applicant was mentally impaired at the hearing on 19 December 2006, and that the Tribunal was alerted to the fact but went ahead, and in doing so denied the applicant a fair hearing, and thereby breached s.425 of the Act.
There was information before the Tribunal that the applicant was suffering depression and insomnia (see Response to s.424A Letter (CB 147.9)); Letter to Tribunal (CB 140.5); Referral to Dr Christian (CB 106) and statements in transcript of the Tribunal hearing that indicated the applicant’s confused state of mind) (SCB 5). However, the Tribunal proceeded with the hearing.

The Psychiatrists Report of 6 February 2007

The hearing before the Tribunal took place on 19 December 2006: the decision was signed on 26 March 2007 (CB 171). On 6 February 2007, a psychiatrist’s report was sent to the Tribunal indicating that certain traumatic events had caused deterioration in the mental health of the applicant and that her severe anxiety and sleep disturbance have caused her to have difficulty with concentration and memory (CB 150).

The consultation that led to that conclusion occurred one month after the hearing, and counsel for the applicant asked the Court to infer that the mental conditions referred to, existed at the time of the hearing.
A report by the same psychiatrist was sent to Victoria Legal Aid on

6 December 2007
(SCB 1). That report was not put before the Tribunal. The psychiatrist saw the applicant a number of times including on 3 December 2007. At that time the applicant was “extremely unwell, depressed and anxious, and in pain to the point where she was barely able to speak to the psychiatrist”. (SCB 3.5).

The psychiatrist concluded that “it is my opinion that she was severely depressed prior to her appearance at the RRT on 19 December 2006. It is consistent with the history and presentation that she was cognitively impaired at the time.” (SCB 3.10).
Mr Gibson, counsel for the applicant seeks that the report of

6 December 2007
be received into evidence by the Court. Mr Gibson relied on two cases; SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481 (“SCAR”) and SZIWY v Minister for Immigration and Citizenship [2007] FMCA 1641.
In SCAR the Federal Court considered an application to review a decision of the Refugee Review Tribunal where it was alleged that the applicant’s mental state was effected at the hearing before the Tribunal, and transcript showed a lack of precision in the applicant’s answers and unresponsiveness to questions.
Justice O’Loughlin decided at 26 that “the fact remains that the Tribunal innocently failed to have regard to a most important matter when it conducted its review of the applicant’s case; it innocently failed to have regard to the applicant’s distressed state of mind. If, knowing that an applicant was emotionally distressed and not in a fit state to present his or her case, the Tribunal forged ahead, one could say, arguably, that a consequential adverse decision was not a bona fide attempt by the Tribunal to exercise its power”.
If it is not, it is in breach of the first Hickman Principle. R v Hickman Ex parte Fox and Clinton (1945) 70 CLR 598 at 614–615.

The Hickman Principles are that a decision by a body is not invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority, provided that the decision is a bona fide attempt to exercise its power; the decision relates to the subject matter of the legislation, and the decision is reasonably capable of, and reference to the power given to the body.
In SCAR, Justice O’Loughlin decided at 26 “In my opinion a decision cannot be bona fide if it innocently or knowingly fails to have regard to a material consideration.”
Section 420(1) of the Migration Act requires the hearing by the Tribunal to be fair and just.
Section 420 provides:
“Refugee Review Tribunal's way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.”
However, s.474 excludes the rules of procedural fairness NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 193 ALR 449 (“NAAV”) per Justice Von Doussa at para 648.

This does not overcome the absence of a bona fide attempt by the Tribunal to exercise its relevant power.
“a blatant disregard of statutory directions about a decision making process laid down in the Act ‘(see s.420(1))’ is unlikely to meet the Hickman proviso that the decision be one that is a bona fide attempt to exercise the relevant power. Unless that requirement is met, s.474(1) cannot validate the decision” per Justice von Doussa NAAV ante at para 674.
“As the Tribunal member was aware of the applicant’s medical and mental condition, the Tribunal failed to make an honest attempt to deal with the subject matter before it” (SCAR ante). His Honour O’Loughlin J then decided that it was not necessarily correct to look only at the subjective conduct of the decision maker, and that whether there was a bona fide attempt, should “be assessed by having regard to the personal circumstances of the applicant as much as the personal circumstances of the decision maker”. (SCAR ante at para 29).
His Honour then referred to “unchallenged evidence in the appeal book that the applicant was not in a fit state to represent himself when the Tribunal considered his application”. (SCAR ante at para 30).

This Court does not consider the fact that the present applicant had a migration agent with her at the hearing, means that the decision in SCAR is not binding on it. This decision weighs heavily in favour of concluding that the Tribunal did not make a bona fide attempt to exercise its power.
The other decision relied on by the applicant is SZIWY v Minister for Immigration and Citizenship [2007] FMCA 1641 (“SZIWY”) per Federal Magistrate Smith. In that case it was alleged that:
“the applicant was denied a fair opportunity to present her case to the Tribunal because she was suffering mental impairment when she attended the hearing, or because the Tribunal did not investigate or consider whether that was the situation.”
There “was material before the Tribunal raising serious doubts whether the applicant had the mental capacities which the Tribunal assumed …On the evidence now before the Court, it is probable that the applicant was suffering from mental impairment which affected her ability to present her case. I consider that these circumstance gave rise to jurisdictional error affecting the Tribunal’s decision, arising from the failure of the Tribunal’s procedures to afford the applicant entitlements conferred by s.425(i) of the MigrationAct” (para 7).
Section 425(1) provides:
“Tribunal must invite applicant to appear
(1) 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.”
His Honour concluded that “the applicant was probably suffering from mental illness at the time of her interview before the Tribunal, and that her impairments probably affected her ability to respond normally to the Tribunal’s questions seeking to investigate and assess her claimed history.” (para 28).
His Honour stated in para 30 “recent judgments of the High Court locate within s.425(1) a significant right for an applicant to participate in a real and meaningful hearing, which in fact affords the opportunity described in s.425(1). SZFDE v MIC [2007] HCA 5 at [30-35] and [48-53], Applicant NAFF of 2002 v MIMIA (2004) 221 CLR 1 at [27] and [32], NAIS v MIMIA [2005] HCA 77 at [37], [164] and [171] and SZBEL v MIMIA [2006] HCA 63 at [26-29] and [32-37]. SZFDE confirms the opinion of the Full Court in SCAR (2003) 128 FCR 533 at [37] that a breach of s.425 can occur as a result of circumstances unknown to the Tribunal and beyond its control. It also supports the Full Courts opinion at [38] as to the jurisdictional nature of the requirements implicit in s.425(1).”
In the present matter there was material before the Tribunal that indicated that the applicant was mentally impaired at the time of the hearing. Notwithstanding that material, the Tribunal proceeded with the hearing. The applicant was therefore denied a fair hearing.
Having reached that decision, it is not necessary for the Court to decide whether the psychiatrist’s report of 6 December 2007 should be received into evidence.
There was no bona fide attempt by the Tribunal to exercise power (Hickman Principles). Therefore no hearing occurred as required by the Act.
Therefore the Tribunal has not exercised its duty to review the decision (s.414). Section 414 provides:
“Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).”
The Tribunal must now exercise its power. Having regard to these findings it is not necessary for the Court to decide ground 1(i)(a).
The decision of the Tribunal is infected with jurisdictional error.

The application is granted. Constitutional writs will issue.
The Court orders that a writ of certiorari issue directed to the second respondent, quashing the decision handed down on 11 April 2007 in case number 060929663.
The Court orders that a writ of mandamus issue requiring the second respondent to hear and determine the matter according to law.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:

Date: 1 May 2008