MZXTA v Minister for Immigration & Anor
[2008] FMCA 1201
•3 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXTA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1201 |
| MIGRATION – Applications to Tribunal to reschedule hearings and provide extensions of time – Tribunal required medical evidence of inability to attend or respond – psychologists report provided – not medical evidence – no breach of s.425 – real and meaningful invitation to appear. |
| Migration Act 1958 (Cth), ss.420, 420A, 424, 424A, 425, 426A, 474 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 SHUB v Minister for Immigration and Multiucltural and Indigenous Affairs (2003) 137 FCR 43 SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697 SZKTI v MIC [2008] FCAFC 83 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 65ALR 549 MIMIA v SGLB (2004) 2007 ALR 12 W389/01A v MIMA (2002) FCAFC 432;125 FCR 407 Applicant M164/2002 v MIMIA [2006] FCAFC 16 SZJYV v MIC [2007] FCA 731 SZEEU v MIMIA [2006] FCAFC 2;150 FCR 214 Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Pierre Henri Fuduche v Minster of Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 SZJQP v MIC [2007] FCA 1613 MIC v Le (2007) 242 ALR 455 Yang v MIMA [2003] FCAFC 258 Videto and Anor v MIEA (1985) 69 ALR 342 MIMIA v SCAR (2003) 198 ALR 293; FCAFC 126 SZJBA v MIC [2007] FCA 1592 Applicant NAHF of 2002 v MIMIA [2003] FCA 140 NALQ v MIMIA [2004] FCAFC 121 |
| Applicant: | MZXTA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1591 of 2007 |
| Judgment of: | Turner FM |
| Hearing dates: | 30 May 2008 & 25 June 2008 |
| Date of last submission: | 25 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 3 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Truong |
| Solicitors for the Applicant: | Goz Chambers Lawyers |
| Counsel for the Respondents: | Ms. Symons |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 21 November 2007, amended by application filed on 21 February 2008, and further amended by application filed
30 May 2008 are dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $8,487 .00 within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1591 of 2007
| MZXTA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an application on 21 November 2007, an amended application on 21 February 2008 and a further amended application in Court by leave on 30 May 2008.
The Court ordered the applicant’s Counsel to file and serve an application setting out the Grounds and particulars pursued. This was filed on 26 June 2008. That application set out the following Grounds and particulars:
“1. The Tribunal in arriving at the Tribunal’s decision failed to comply with its obligations under sections 425 and 426A of the Migration Act in that it failed to properly exercise its discretion to reschedule the applicant’s appearance before it, or from delaying its decision on review to enable the applicant’s appearance before it to be rescheduled.
Particulars
(i)On 23 July 2007, the Tribunal sent a letter to the applicant inviting him to attend a hearing on 10 August 2007 to give oral evidence and present arguments [CB 54].
(ii)On 9 August 2007, the applicant sought an adjournment of the oral hearing on the basis that he was medically unfit to attend the hearing, providing a report prepared by psychologist Edwin Kleynhans dated 8 August 2007, a report which concluded that “Given his paralysing fears an (sic;“and”) that he suffers from Generalised Anxiety Disorder, (sic;“and”), I am of the opinion that he will not be able to face a Tribunal at this stage with regards to his application for a protection visa [CB61 – 70]
(iii)On 13 August 2007, the Tribunal resolved a grant the adjournment and wrote a letter to the applicant advising that the hearing was adjourned until 17 August 2007 [CB 72]
(iv)On 16 August 2007, the applicant’s authorised agent sent a fax advising that the applicant’s condition had worsened and that he was now suicidal and in the circumstances, sought to reschedule the hearing [CB 84]
(v)On 17 August 2007, an officer of the Tribunal telephone the authorized agent to advise that the presiding member was not prepared to adjourn the hearing as no medical evidence had been provided in support of the request and the Tribunal would only consider scheduling another hearing if it was provided with detailed evidence from a medical practitioner.
(vi)On 17 August 2007, the Tribunal sent a s.424A letter to the applicant seeking his response in relation to the following issues [CB 86]:
· apparent lack of evidence that any problems the applicant’s father has might give rise to a real change that the applicant will be persecuted for a convention reason in Sri Lanka in the foreseeable future;
· apparent lack of evidence of ongoing threat to the applicant’s family
· apparent delay in departing Sir (sic;“Sri”) Lanka and making protection claims.
(vii)On 31 August 2007, the applicant sought an extension of time within which to respond to the s.424A letter attaching a further report from psychologist Edwin Kleynhans dated 30 August 2007, the report concluding that “I am still of the same opinion as during his assessment on 4/8/07 that he is still not capable and coherent to answer questions in relation to his current immigration matter (application for a protection visa)” [CB 93]
(viii)On 7 September 2007, the Tribunal extended the time for the applicant to respond to the S.424A letter until 5 October 2007 [CB98-98]
(ix)On 7 September 2007, the Tribunal sent a further s.424A letter to the applicant seeking the applicant’s response to the issue of validity of reason for seeking adjournment of hearing and extension of time to reply to s.424A letter seeking a response by 21 September 2007 [CB102-105]
(x)On 19 September 2007, the applicant’s authorised agent sent a fax to the Tribunal referring to the previous psychologist reports provided by the applicant [CB 107]
(xi)On 8 October 2007, the Tribunal wrote to the applicant indicating that it did not agree to extend the time for a response to the s.424A letters and that it would proceed to make a decision [CB 109]
(xii)On 12 October 2007, the applicant’s representative sent the Tribunal a fax attaching a letter from Dr Bernard Crimmins dated 11 October 2007 with a diagnosis of the applicant including medication prescribed by him [CB 111]
(xiii)On 17 October 2007, the Tribunal proceeded to affirm the decision under review without hearing the applicant give oral evidence or granting a further extension of time to respond to the s.424A requests [CB 121-145].
(xiv)The Tribunal acted capriciously in the proceeding to a decision without rescheduling the hearing
(xv)The Tribunal misdirected itself and improperly took into account the following irrelevant considerations:
A. the fact the applicant did not attend either of the scheduled hearings
B. the Tribunal’s experience in dealing with many applicants who have undergone traumatic experiences such as torture or who have psychiatric or psychological conditions.
C. the professional medical status of Mr Kleynhans.
D. the Tribunal’s opinion that Mr Kleynhans’s recommendations in his report dated 30 August 2007 that he seek a General Practitioner for his depressed mood and anxiety not accord with Mr Kleynhan’s conclusion that the applicant was not capable to answer questions in relation to this current immigration matter.
(xvi)The Tribunal’s failed to properly take into account the following relevant considerations:
A. Mr Kleynhan’s expertise as a qualified psychologist.
B. Mr Kleynhan’s reports
C. The contents of the letter dated 11 October 2007 from Dr Bernard Crimmins, the applicant’s General Practitioner.
2. The Tribunal in arriving at the Tribunal’s decision acted so unreasonably in failing to make limited inquiries with
Dr Bernard Crimmins that no reasonable decision maker would have proceeded to make a decision without such information.
Particulars
(i)The applicant refers to and repeats the particulars under Ground 1 above.
(ii)The Tribunal did not grant an adjournment of the scheduled hearing;
(iii)Six days after receiving the letter from Dr Bernard Crimmins, the Tribunal affirmed the decision under review partly on the basis that the medical evidence did not refer to the applicant’s capacity to attend the hearing or respond to a request for information [CB 144];
(iv)This information was readily available to the Tribunal; and
(v)The Tribunal did not contact Dr Bernard Crimmins to ascertain this information.
3. Further or alternatively to Grounds 1 and 2, the Tribunal in arriving at the Tribunal’s decision failed to comply with it obligations under section 424A and 425 of the Migration Act in that it did failed to take such steps so as to provide a real or genuine opportunity to respond to the s.424A letter or to attend a hearing to give evidence and present arguments pursuant to an oral hearing conducted under s.425 of the Migration Act.
Particulars
The applicant refers to and relies on particulars to ground 2 above. Further, the applicant refers to and relies on the Tribunal’s inactions in not making simple inquiries of
Dr Bernard Crimmins following the receipt of his letter dated 11 October 2007 before handing (sic) proceeding to a decision on 17 October 2007.”
Mr Truong for the applicant described the Grounds being pressed by the applicant, as:
a)Ground one – that the tribunal failed properly to exercise its discretion under s.426A of the Migration Act 1958 (Cth) (the “Act”) by failing to reschedule the hearing pursuant to s.425 or from delaying its decision to review the application. This Ground is rejected below.
b)
Ground two – that the Tribunal erred in reasonably (sic; “unreasonably”) failing to make limited enquiries with
Dr B Crimmins. The failure to make enquiries with him was so unreasonable that no reasonable decision (sic; “decision-maker”) would have made a decision without obtaining that information. This Ground is rejected below.
c)Ground three – that the Tribunal breached ss.425 and 424A by failing to take such steps as to provide a real and genuine opportunity to respond to request for information or to attend a hearing. This Ground is rejected below.
The issue that arises from Ground one is whether the Tribunal was required to enquire from Dr Crimmins as to whether the applicant’s medical state meant that he was unable to attend a hearing or respond to s.424A invitations.
Having reviewed the history of requests for extensions of time to respond to s.424A letters, and requests for adjournment of hearings, and having considered the report from Dr Crimmins and the absence in it of a statement that the applicant was unfit to attend a hearing, the Tribunal made a finding of fact that “the applications for extensions of time and rescheduling of hearings were delaying tactics” (CB 144.7).
That finding of fact was properly open to the Tribunal on the material before it and does not fail the Wednesbury test of reasonableness.
The finding of fact is therefore not open to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
And at [29]:
“the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and
“Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.”
The issue the applicant seeks to agitate is no more than an impermissble attack on the factual findings of the Tribunal.
The challenge is no more than an invitation to review the merits.
The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multiucltural and Indigenous Affairs (2003) 137 FCR 43, the Full Court (at [12] quoted a passage from the decision of Selway J at first instance, where his honour had said:“16 I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysising the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 AT [146]:
‘A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadscasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immgration and Multicultural Affairs 160 ALR] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal’.”
Bennett J summarised a number of relevant authorities in SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697:
“31 This ground appears to amount to no more than diasgreement with the outcome of the review by the Tribunal.
The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 596). The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J). The Tribunal may conclude that it is not satisfied of factual matters, even thougth there is no rebutting evidence as to those matters (Selvadurai v Minister for Immgration and Ethnic Affairs (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicutlural [2000] FCA 1536 at [13]). Further, as was helf by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at[14] ‘the want of logic does not, of itself, suffice to constitute an error of law’. No error is established.”That finding of delaying tactics, after having considered Dr Crimmins’ report, justified the Tribunal not enquiring of Dr Crimmins’ whether the applicant’s condition meant that he could not attend the hearings or respond to enquiries. In any event such an enquiry would not have been a simple administrative matter – the Tribunal could not simply have telephoned Dr Crimmins and asked him to disclose confidential privileged information SZKTI post [50]. Further the request to
Dr Crimmins would have had to be in writing SZKTI v MIC [2008] FCAFC 83 at [53]:
“In our opinion, if the tribunal requires additional information to be provided by a person it must follow the procedures that the Parliament has laid down to obtain that information.
One mechanism that the tribunal can use is to invite the applicant or the person to a hearing and obtain evidence from them on oath. It can then invite the applicant to provide further information. The procedure is, after all, inquisitorial. It is not an unusual feature of inquisitorial procedures, that proper enquiry takes time and care. The tribunal will naturally seek to contain the extent of its enquiries, consistently with its performance of its duties having regard to s 420.”
The Tribunal would first have had to ask the applicant to release the doctor from his obligations to keep such matters confidential, and it would then have had to obtain, and presumably arrange for the payment for, a medical report. Alternatively it could have asked the applicant to obtain such a report. But given the lack of responsiveness by the applicant to the Tribunal’s previous requests to provide a medical report, the Tribunal may have been disinclined to make the request. Making an enquiry of Dr Crimmins would not have been a straight forward matter. This is a further fact that may have influenced the Tribunal to decide not to make enquiries after the medical certificate from Dr Crimmins. The actions of the Tribunal were reasonable.
It is well established that an applicant must make out their case to the satisfaction of the Tribunal.
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.”
As stated in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70: “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”.
The Court applies the following submissions in another matter:
“The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.”
There is no obligation on the Tribunal to embark on an open ended inquiry as to the fitness of an applicant to appear.
As stated by the High Court in MIMIA v SGLB (2004) 2007 ALR 12 at [43] per Gummon and Haynes JJ, with whom Gleeson CJ agreed.
“Secondly, whilst s 427 of the act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so, Rather s 426 provides that, even if an applicant requests that the tribunal take oral or written evidence for a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire”
See also W389/01A v MIMA (2002) FCAFC 432; 125 FCR 407 at [78]; Applicant M164/2002 v MIMIA [2006] FCAFC 16 and SZJYV v MIC [2007] FCA 731 per Justice Downes at [6] and SZEEU v MIMIA [2006] FCAFC 2; 150 FCR 214 at [61].
As decided above a medical report from Dr Crimmins was not readily available to the Tribunal. This was not a case with the facts considered by Wilcox J in Prasad v MIEA (1985) 6 FCR 155, where the information was readily available to the Tribunal and was centrally importance to the decision to be made. SZEEU v MIMIA ibid at [60]. The issue of central importance here was that the Tribunal found as a matter of fact that the applicant’s claims were inconsistent with the evidence. That is an independent unimpeachable Ground for the Tribunal affirming the decision of the delegate.
The cases relied on by the applicant do not include the finding here that the applicant’s requests were a delaying tactic – this case is therefore distinguishable.
The conduct that led the Tribunal to refuse the last application for an extension of time was of the applicant’s making, in failing to provide the information that the Tribunal told him would be necessary if he was to be granted an extension. He chose not to comply with the requests.
The Tribunal had explained to the applicant and his advisors in writing specifically what medical evidence was required to support an application for adjournment or extension, including the unfitness of the applicant to give evidence orally or in writing. A report was presented from Mr Kleynhans, who is a psychologist (CB 96). There was no evidence before the Tribunal that Mr Kleynhans was a medical practitioner and he made no claim to be medically qualified (CB 144.4) (see post) that report therefore did not meet the Tribunal’s requirements. The only medical evidence was a letter from
Dr Crimmins dated 11 October 2007 (CB 112). That still did not address the requirements of the Tribunal, as to the applicant’s inability to give evidence orally or in writing (CB 144.7). Mr Truong submitted that when married up with the psychologists report from Dr (sic; “Mr”) Kleynhans, it should have been inferred by the Tribunal that the applicant was not fit to come to the hearing. The Court cannot make that inference as it is just as open to infer that the absence of that statement from Dr Crimmins’s letters, meant that he did not hold that view (Court transcript, page 29 line 25).
The repeated failure to produce the required medical information justified the finding of fact by the Tribunal that the requests for adjournments and time to respond, were delaying tactics (CB 144.7). That finding of fact is not open to challenge. There was therefore no reason to contact Dr Crimmins and no error of law occurred in the Tribunal failing to do so. The Tribunal had already expressed its concerns about the legitimacy of the applicant’s claims generally.
The applicant’s claims were rejected on that basis.
The relevant history of the proceeding is as follows:
a)By letter dated 23 July 2007 the RRT issued an invitation to the applicant to attend a hearing on 10 August 2007 (CB 54).
b)
By facsimile at 15.45 on 9 August 2007 the applicant’s lawyers advised the RRT that the applicant was medically unfit to attend the hearing the next day, and requested an adjournment (CB 61). The applicant’s lawyers sent a copy of the report by
Mr Kleynhans (psychologist) to the Tribunal. Mr Kleynhans concluded that the applicant
“…will not be able to face a tribunal at this stage with regards to his application for a Protection Visa. It would be very difficult for him to be coherent and to answer questions adequately and intelligently. People who suffer from severe anxiety tend to fail in responding to answer questions at any public hearing or tribunal even if it occurs in camera”. (CB 70.6)
That material was put before the Tribunal on 10 August 2007 (the day of the proposed hearing) (CB 72.5).
c)By letter dated 13 August 2007 the RRT advised the applicant’s lawyers that it had agreed to reschedule the hearing to 17 August 2007 to allow the applicant an opportunity to appear (CB 72). The Tribunal advised that:
“In respect of any further requests, the Tribunal refers you to paragraphs 30-54 of the Principal Members Direction 3/2005, a copy of which is attached” (CB 72.9) (the “Direction’).
Section 420A(3) of the Act provides that “the Tribunal should, as far as practicable, comply with the directions. However non-compliance by the Tribunal with any direction does not mean that the Tribunal’s decision on review is an invalid decision.” “Should” is to be contrasted with “may”: the later leaves compliance discretionary. “Should” in this context is directory and means that the Direction shall be complied with as far as is practicable. “Should” is the past tense of the verb “shall” (Short Oxford English Dictionary). There was no reason here why it was not practicable for the Tribunal to comply with the Direction.
The Tribunal did not err in applying it. Clause 52 of the Direction provides:
“52. If a review applicant seeks postponement of a scheduled hearing, the review applicant must contact the Tribunal immediately and state the reasons why the date is unsuitable. If a review applicant seeks a postponement of the hearing on medical grounds, the review applicant must contact the Tribunal as soon as possible and must provide a certificate from a medical practitioner, certifying that the review applicant is unable to attend, before the hearing will be scheduled.” (CB 80)
The applicant’s lawyers were advised that in any further request for adjournment the applicant “must provide a certificate from a medical practitioner, certifying that the review applicant is unable to attend, before the hearing can be rescheduled”.
The provision of such a certificate was a mandatory requirement for the applicant – He could not choose whether or not to comply. A “psychologist” is not a “medical practitioner (ante).
d)
The rescheduled hearing was due to take place at 10 am on
17 August 2007(CB 73). By facsimile transmitted by the applicant’s lawyers to the RRT at 18.05 on 16 August 2007, they advised that the applicant “is now suicidal” and requested that the hearing be rescheduled. A medical certificate was not provided (CB 84). The Tribunal did not agree to an adjournment as medical evidence had not been provided (CB 103.7).
e)The RRT wrote to the applicant’s lawyers on 17 August 2007 pursuant to s.424A (CB 86) requiring a response by 31 August 2007 (CB 88).
f)
At 17.19 on 31 August 2007 (CB 93) the applicant’s lawyers sent a facsimile to the Tribunal attaching a further report by
Mr Kleynhans, which concluded that the applicant:
“is still not capable and coherent to answer questions in relation to his current migration matter.” He recommended that the applicant “see a General Practitioner for his depressed mood and anxiety with a view of perhaps prescribing mediation” (CB 96).
That paragraph evidences that there is a distinction between a psychologist and a medical practitioner (see also post).
g)
The Tribunal responded by letter dated 7 September 2007 extending the time to reply until 5 October 2007 and stated that “the Tribunal is not prepared to extend time indefinitely”
(CB 98.6). It stated that “it expects that any future adjournment requests made on medical grounds are accompanied by detailed evidence from a qualified medical practitioner (preferably a registered psychiatrist in light of the basis of the previous adjournment requests) setting out precisely on what medical basis the applicant is unfit to attend the hearing or respond to a Tribunal request for information, what treatment he is receiving, and what the prognosis is for his recovery to the point where he would be fit to attend a hearing or respond to a Tribunal request for information. In the absence of any such information, the Tribunal is unlikely to accede to any further requests” (CB 98.9).
A psychiatrist is a person who practises the medical treatment of diseases of the mind (Shorter Oxford Dictionary). The Court takes judicial notice of the requirement that a psychiatrist be a registered medical practitioner.
h)The Tribunal sent a further s.424A letter on 7 September 2007 (CB 102) inviting comments on the “validity of reasons for seeking adjournment of hearing and extension of time to reply to s.424A letter”.
i)The Tribunal required a written response by 21 September 2007 (CB 104). The Tribunal set out:
i)
That the applicant had been able to articulate his claims on
9 May 2007(CB 102.7)
ii)That the matter was listed on 10 August 2007 but a request for a adjournment was received on 9 August 2007, enclosing a psychologists’ report, and noted that the applicant had detailed his claims to the psychologist on 4 August 2007 (CB 102.8).
iii)That the Tribunal rescheduled the hearing on 17 August 2007, but a request for an adjournment was received by it at 6.15 pm on 16 August 2006 (sic; “2007”) on the Ground that the applicant’s condition had worsened and he had become suicidal. The Tribunal refused to grant the adjournment, and the Tribunal contacted the applicant’s lawyers on 17 August 2007 and advised that the Tribunal was not prepared to adjourn the hearing as no medical evidence had been provided (CB 103.7).
iv)That the Applicant did not attend the hearing on 17 August 2007 (CB 103.8).
v)
That the Tribunal had sent a s.424A letter on 17 August 2007 stating that any response should be received by
31 August 2007(CB 103.9).
vi)That on 31 August 2007 at 5.19 pm the Tribunal received a facsimile requesting an extension of time in which to reply to the s.424A letter (CB 103.10).
vii)
That it might be inferred that the applicant’s medical condition does not appear to have prevented him explaining his claims to his lawyers and psychologist (CB 104.2).
That he did not appear to have sought or obtained medical treatment (CB 104.3).
viii)
The Tribunal then stated (CB 104.4) that the information is relevant because “…it might cause the Tribunal to question whether your behaviour is in fact symptomatic of the medical condition ascribed to you, or merely a delaying tactic which might reflect adversely on the genuineness of your protection claims because it may appear that you are avoiding having your protection claims scrutinised at a hearing or via requests made under s.424A. This may in turn go towards the Tribunal concluding that your protection claims are not genuine and will not in fact stand up to scrutiny”. The applicant was invited to comment by
21 September 2007(CB 104.7).
j)
The applicant’s lawyers sent a facsimile to the Tribunal on
19 September 2007(CB 107) requesting an extension of time to respond to the s.424A letter, which response was due on
21 September 2007.
k)The Tribunal responded by letter dated 8 October 2007 (CB 109) advising that “as the request was not accompanied by medical evidence of the sort referred to in the Tribunal’s letter of
17 (sic; “7”) September 2007 headed “REQUEST FOR EXTENSION OF PERIOD TO PROVIDE COMMENTS, and nor was there any indication that such evidence might be forthcoming, the Tribunal is not prepared to extend time as requested. The Tribunal will proceed to make a decision.
Any further information received before the decision is handed down will be taken into account”. (CB 109.8)l)The applicant’s lawyers responded by facsimile on 12 October 2007 and attached “a letter from the applicant’s GP” (CB 111 and 112).
The Court put to Mr Truong for the applicant, that the letter from Dr Crimmins did not say that the applicant was not fit to attend the hearing and not fit to respond to a request for information (Court transcript page 20 line 1). Mr Truong agreed that the Doctor did not state that the applicant’s symptoms mean that he cannot attend (Court transcript page 20 line 42). He agreed that “it was open to the Tribunal to conclude from that letter that there is no view expressed that the applicant could not attend the hearing” (Court transcript page 21 line 29).
m)
The letter from Dr Crimmins did not state that the applicant was unable to attend a hearing or respond to a Tribunal request for information. This occurred notwithstanding that on 7 September 2007 the Tribunal had written to the applicant’s lawyers advising “that in the absence of any such information the Tribunal is unlikely to accede to any further adjournment requests”
(CB 98.10).
n)
The applicant failed to respond to the s.424A letter, and the Tribunal handed down its decision on 26 October 2007.
(CB 145), having advised that it would consider any information received up until that time (CB 109.6). The Tribunal considered the psychologists reports and did not accept that the only reason for the 7 year delay in the applicant lodging his protection claims was the applicant’s phlegmatic personality (CB 143.4).
The Tribunal found that the delay was a further indication that the applicant’s claims are not genuine (CB 143.5). Those findings of fact were properly open to the Tribunal on the material before it and are not open to review.
The Tribunal did not find the evidence in Mr Kleyhans’ report to be persuasive of the applicant’s inability to attend a hearing or respond to s.424A letters (CB 143.6). That was a finding of fact that was properly open to the Tribunal.
Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:
“Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [29] as follows:
“the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and…”
The Tribunal considered the psychologist’s second report (CB 143.9) in which the psychologist recommended that the applicant may need to see a General Practitioner. The Tribunal did not accept that that evidence proved that the applicant was “not capable of answering questions in relation to his current immigration matter (CB 143.10). That finding of fact was properly open to the Tribunal on the material before it and is not open to challenge. The Tribunal can accept or reject evidence as it thinks appropriate in all the circumstances.
The Tribunal referred to the decision in Pierre Henri Fuduche v Minster for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 per Justice Burchett at 552 that:
“it may sometimes be open to lay decision maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision”.
The Tribunal noted that “there is no evidence before the Tribunal that Mr Kleynhans is a medical practitioner” (CB 144.4). “Medical” is defined in the Shorter Oxford Dictionary as meaning:
“Pertaining to the healing act or medicine as distinct from …surgery: Requiring medical as distinct from surgical treatment or diagnosis.”
“Psychology” is defined as:
“The science of the nature, functions and phenomena of the human soul or mind” (Ibid)
and a “Psychologist” is “one who is versed in psychology” (Ibid).
Mr Truong stated that he could not say that a psychologists report is a medical report (Court transcript page 5 line 4). He stated that before the letter from Dr Crimmins “there’s certainly no medical evidence from a GP” (Court transcript page 17 line 20). The finding of the Tribunal there was no evidence that Mr Kleynhans is a medical practitioner was a finding of fact that was properly open to it and is not subject to review.
As there was no medical evidence that the applicant was unable to attend a hearing or respond to s.424A invitation the Tribunal bridged the scientific gap and concluded that the reason for the applicant’s non attendance or response was that they have been delaying tactics
(CB 144.7). Having reached that finding of fact, there was no utility in it making enquiries of Dr Crimmins. The failure to make enquiries was not an error of law. The need for an enquiry did not arise.
An error of law has not been shown. This Ground is dismissed.
Mr Truong then alleged that s.425 had been breached as the applicant was not given a proper opportunity to give oral submissions and present arguments. Having regard to the above history of the proceedings it can be seen that:
·The applicant was invited to attend a hearing on 10 August 2007. The application to adjourn that hearing was granted.
·
The applicant then had the opportunity to attend a hearing on
17 August 2007.
·The applicant was invited to respond to two s.424A letters.
In the ultimate, the Tribunal found on a matter of fact that the applicant’s requests for adjournment and extensions of time to respond were delaying tactics. That finding of fact was properly open to the Tribunal and not subject to challenge. It follows from that finding that it was the applicant’s conduct and decisions that prevented him from attending a hearing or responding to the s.424A letters. He failed to produce the medical evidence required by the Tribunal. That was his decision. He was given opportunities but denied them to himself. Notwithstanding that failure the Tribunal granted an adjournment and extension.
A breach of s.425 has not been established. The Tribunal rescheduled a hearing and allowed further time to respond to its s.424A invitation.
A breach of s.425 has not been established. This Ground is dismissed.
Mr Truong submitted (Court transcript page 22 line 44) that the Tribunal had regard to dealings it had had with other applicants who had undergone traumatic experiences such as torture. Such prior experience can be of some relevance SZJQP v MIC [2007] FCA 1613 at [51]. The Tribunal does not state that it relied on those dealings in reaching its decision – it reached its decision having found that the applicant’s claims are not genuine as the evidence is inconsistent with them, and that the applicant engaged in delaying tactics.
Those findings of fact were properly open to the Tribunal and are not subject to review.
Mr Truong then alleged a breach of s.421(A) (sic) because of a failure to grant the adjournment (Court transcript page 24 line 17).
Having regard to the history of the proceedings, it has not been established that the Tribunal did not provide a “mechanism of review that is fair, just economical informal and quick” (s.420(1)). No error of law has been established. The applicant was given adequate opportunity to attend and respond.
Mr Truong agreed “that the finding of fact was properly opened (sic; “open”) at (sic; “by”) the Tribunal” that the reasons stated by the psychologist are not the reason why the applicant sought the adjournment (Court transcript page 24 line 31 and page 25 line 15). The Tribunal acted on that finding of fact in deciding that the requests for an adjournment and extension were delaying tactics.
Mr Truong then addressed Ground two, submitting that the Tribunal should have made limited enquiries with Dr Crimmins. The Court refers to its conclusions above that no error of law has been shown in the Tribunal not making enquiries of Dr Crimmins. The opportunities given to the applicant to attend and respond support the Tribunal exercising its discretion as it did in not making enquiries of
Dr Crimmins.
Mr Truong submits that the Tribunal acted capriciously and unreasonably in failing to make enquiries of Dr Crimmins or rescheduling the hearing. For the reasons stated above, the Court finds that the Tribunal acted in a way that was properly open to it. It acted reasonably, and did not act capriciously; quite the opposite, it extended opportunities to the applicant, which he decided not to take. A breach of s.425 has not been established.
Mr Truong then submitted that the Tribunal failed to take into account relevant considerations because it failed to take into account the report by Mr Kleynhans. That submission has no basis as the Tribunal clearly took both reports into account but decided that they did not establish the real reason why the applicant sought extensions and adjournments. The Tribunal was entitled to accept or reject that evidence.
Mr Truong referred to Wednesbury unreasonableness (Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223) (Court transcript page 50 line 31). The Court does not find the conduct of the Tribunal to be so unreasonable that no reasonable body could have taken the decision. Wednesbury unreasonableness has not been established. The history of the proceedings leading to the finding of delaying tactics shows that the Tribunal acted reasonably in not making enquiries of Dr Crimmins. Not contacting Dr Crimmins is explained by the Tribunal’s finding as to delaying tactics. That finding of fact was properly open to the Tribunal having regard to the history of this matter. The decision in Prasad v MIEA (1985) 65 ALR 549 therefore has no relevance. The finding as to delaying tactics distinguishes the present case from all cases relied on by the applicant on the issue of the Tribunal making enquiries. MIC v Le (2007) 242 ALR 455 related to a mistranslation of a statement; Yang v MIMA [2003] FCAFC 258 involved an error in the Minister deciding that the applicant was seeking a regression of three years in seeking to go into schooling at year 10 in Australia, and finding that to be in breach of policy, without enquiring about the comparative level of education in China and Australia. Again there was no history of delaying tactics.
In Videto and Anor v MIEA (1985) 69 ALR 342 Justice Toohey stated on page 352:
“As a broad proposition, I do not think that the Act imposes an obligation on a decision-maker to initiate inquiries. In Turner v Minister for Immigration and Ethnic Affairs at 185 I said:
" ... I do not think, at least in the present case where the applicant had the benefit of family and legal advisers in making submissions to the Minister, that it was the Minister's obligation to go beyond that material.": See also Kioa v Minister for Immigration and Ethnic Affairs at 670. But much will depend upon the nature of the material before the decision-maker, the importance of the decision to be made and its consequences for the person to whom the decision relates. In this regard I confine my comments to a decision that a prohibited non-citizen be deported. In such a case it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made.
This is more likely to be the case where the person concerned has not had the benefit of any advice…”
In the present case the applicant had legal advisors throughout who were aware of the requirement for a medical report.
The Court holds that these considerations as to enquiries are largely displaced by the history of the matter, where the Tribunal found that the applicant was involved in delaying tactics. “Much depends on the material before the decision-maker”. The finding of delaying tactics resulted from the whole of the history before Dr Crimmins wrote his letter, and was supported by that letter. Having found that the applicant had been deliberately delayed his proceeding, there was no requirement to enquire of Dr Crimmins whether the applicant genuinely could not now attend or answer questions. The Tribunal stated also that it would have regard to any material filed before it handed its decision, which occurred on 26 October 2007. The applicant therefore had from receipt of the letter dated 8 October 2007 (CB 109) until 26 October 2007 to provide the type of medical information specified in the Tribunal’s letter dated 7 September 2007 (CB 98), that being setting out “on precisely what medical grounds the applicant is unfit to attend or respond to invitations to provide information, what treatment he is receiving, and when he will be able to attend or respond”.
Having given the applicant that opportunity, the Tribunal was not required to make its own enquiries of Dr Crimmins. The applicant failed to take that opportunity. The applicant was given adequate opportunity to attend, give evidence, answer questions and provide relevant information. It was for the applicant to establish his case and provide information in support of his applications for adjournments and extensions – he did not avail himself of those opportunities. It was for the applicant to provide the material, and not for the Tribunal to make enquiries. In any event it made enquiries of the applicant about the material it required. There is nothing to say that the Tribunal had a duty to make enquiries of Dr Crimmins. The applicant was uniquely placed to provide the material required and failed to do so.
MIMIA v SCAR [2003] 198 ALR 293; FCAFC 126 stands for the proposition than an invitation under s.425 must be meaningful [41]. The Court holds that the invitation here was meaningful – it does not lose that quality if the applicant, because of a desire to delay the proceedings, fails to avail himself of the opportunity to provide information to the Tribunal that is required by it.
In SZJBA v MIC [2007] FCA 1592 Justice Allsop held that in relation to s.425A letters each invitation must be real and meaningful.
SZJBAis a very different case from the present. There a page was missing from a facsimile sent to the Tribunal. The applicant was not in a position to know of the defect. Here the applicant was fully aware of the shortfall in his material – he was best placed to provide further material – but declined. The Court makes the same comments it made in relation to SCAR.
Applicant NAHF of 2002 v MIMIA [2003] FCA 140 refers to the issue of an invitation which “must not be a hollow shell on an empty gesture”. The Court finds that the invitation here was not a hollow shell or empty gesture. The applicant responded to valid invitations in a way that deliberately delayed the proceedings. The Tribunal stated that it was prepared to consider any new material filed before it handed down its decision. In NAHF the applicant provided the Tribunal with a GP’s certificate citing depression [37]. There was no evidence that the RRT advised the applicant of concern relating to the sufficiency of the medical certificate [38-39]. The present case is therefore very different.
At (Court transcript page 74 line 31) Mr Truong abandoned Ground 4.
Ms Symons submitted for the first respondent that the psychologists’ reports did not supply the information that the Tribunal required in order to reschedule a hearing (Court transcript page 82 line 15). That is correct.
Ms Symons submitted correctly, that it was open to the applicant to provide the material that the Tribunal required, up to the date of the decision was handed down. The applicant chose not do that – he had the opportunity but declined it. The Tribunal attempted to get the information required – but the applicant refused to supply it.
Ms Symons then submits that the primary reason for affirming the decision of the delegate is that the applicant’s claims were not genuine.
At (CB 144.4) the Tribunal found the claims to be inconsistent with the evidence before the Tribunal. That finding of fact was properly open to the Tribunal and not able to be challenged. The Tribunal detailed the inconsistencies (CB 142.4). At (CB 142.6) the Tribunal accepted that earlier or independent evidence, over the later versions relied on by the applicant. The Tribunal can accept or reject evidence as it thinks appropriate in all the circumstances Lee (supra).
The Tribunal rejected Mr Kleynhans’ evidence as to the reason for delay and stated its reasons for rejecting his evidence. The Tribunal was entitled to reject that evidence Lee (supra).
Ms Symons referred to the decision in NALQ v MIMIA [2004] FCAFC 121 at [35] that
“The Tribunal having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the applicant.”
The Court adopts that statement, and applies it in this case.
Here the invitations to appear and respond were not rendered illusory by the Tribunal requiring a certificate by a medical practitioner certifying that the applicant was unable to attend and respond, and proceeding in the absence of that certificate.
The primary reason for rejecting the applicant’s claims was their inconsistency with the evidence. The issue of whether the applicant was medically unfit to attend a hearing or provide responses to s.424A letters was a matter of subsidiary importance, and the Tribunal dealt with the matter in a reasonable manner - it made it very clear to the applicant and his lawyers, that for further adjournments or extensions to be granted, the Tribunal required medical evidence as specified by it. It put the applicant on notice three times and could not force the applicant to comply. The applicant failed repeatedly to provide medical evidence; it was reasonable for the Tribunal to proceed to determine the matter without further enquiry. It’s actions were not so unreasonable that no reasonable Tribunal could act in that way. Wednesbury unreasonableness has not been shown. Even if the enquiry with Dr Crimmins would have been simple, and the Court rejects that description, the Tribunal did not act unreasonably in not making it, having regard to the circumstances of this case. Alternatively the Tribunal had Dr Crimmins’s views, and he said nothing about inability to attend or provide responses. In any event, the Tribunal did not proceed without making enquiries; it made repeated enquiries of the applicant and his lawyers, and it gave an opportunity to respond until the decision was handed down.
The practical difficulties of obtaining confidential information from
Dr Crimmins are to be contrasted with the situation in Lee (supra) where the Tribunal could simply have obtained information that was in the possession of the department. The present case is also distinguishable from SZJBA v MIC [2007] FCA 1592 where pages were missing from a document sent by facsimile.
The applicant alleges that it was capricious for the Tribunal to decide the matter without making further enquiries. Considering the history of the matter, the Court’s rejects that claim. All reasonable efforts were made to enable the applicant to attend and respond. No error of law has been established.
The Court has dismissed Ground one of the application. It now dismisses Ground two.
As to Ground three the applicant relies on the particulars under Ground two to establish the alleged breach in Ground three.
The Court finds no breach of ss.424A or 425. The Tribunal was not obliged to contact Dr Crimmins and acted reasonably in not doing so. Ground three is dismissed.
Mr Truong alleges that the Tribunal took irrelevant material into consideration. The Court has already rejected that allegation that relates to the circumstances of other applicants. As stated, they may have some relevance. Ground one alleges failure by the Tribunal to comply with ss.425 and 426A by not properly exercising its decision to reschedule the hearing, or to delay its decision to enable the applicant’s appearance before it to be rescheduled. That Ground is dismissed.
Particular (xv) alleges that the Tribunal took into account irrelevant considerations as follows:
“A. The fact the applicant did not attend either of the rescheduled hearings.
B. The Tribunal’s experience in dealing with many applicants who have undergone traumatic experience such as torture or who have psychiatric or psychological conditions.
C. The professional status of Mr Kleynhans.
D. The Tribunal’s opinion that Mr Kleynhans’ recommendations in his report dated 30 August 2007 that he seek a General Practitioner for his depressed mood and anxiety not accord with Mr Kleynhans’ conclusion that the applicant was not capable to answer questions in relation to his current immigration matter.”
The Court notes first that s.426A grants a wide discretion.
As to A, a Tribunal could properly find it relevant that an applicant did not attend either of the rescheduled hearings.
As to B, the Court refers to its decision above, that those circumstances or experience may be of relevance.
As to C, the professional status of Mr Kleynhans was of direct relevance.
As to D, it was properly open to the Tribunal to have regard to, and place as much weight on, Mr Kleynhans’ opinions, as it deemed appropriate.
Those Grounds are rejected. Even if it had been established that the Tribunal had erred at law in not making enquiries with Dr Crimmins, the Court would as a matter of discretion refuse Constitutional writs as there is a separate unimpeachable reason that supports the Tribunal’s decision, being the inconsistency of the claims with the evidence.
That finding of fact is not open to challenge.
All Grounds in the application are dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application, amended application and further amended application are dismissed.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 3 October 2008
Key Legal Topics
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Immigration & Refugee Law
Legal Concepts
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Judicial Review
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Standing
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