MZYRX v Minister for Immigration
[2012] FMCA 723
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 723 |
| MIGRATION – Capacity of Applicant – mental health of Applicant in issue – decision not to allow psychologist to appear – obligation on Reviewer to make inquiries. |
| Evidence Act 1995 (Cth), s.69 Migration Act 1958 (Cth), ss425, 426 |
| Abebe v Commonwealth (1999) 97 CLR 510 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 Lek v Minister for Immigration, Local Government and Ethnic Affairs [No.2] (1993) 45 FCR 418 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 SZMYO v Minister for Immigration and Citizenship (2011) FCA 506 SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 |
| Applicant: | MZYRX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1496 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 28 June 2012 |
| Date of Last Submission: | 28 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 23 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Szydzik |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the first Respondent: | Ms Latif |
| Solicitors for the first Respondent: | Clayton Utz |
| Counsel for the second Respondent: | Ms Latif |
| Solicitors for the second Respondent: | Clayton Utz |
ORDERS
That the Application filed 17 October 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1496 of 2011
| MZYRX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the recommendation made by the Independent Merits Review (“IMR”) Reviewer, (“the Reviewer”) in a report dated 15 September 2011.
Background
The Applicant claimed to be a stateless Faili Kurd who was born in Iran but whose parents and grandparents had been deported from Iraq in 1969. The Reviewer accepted that the Applicant was a Faili Kurd, but concluded that he was a national of Iran. The Applicant arrived at Christmas Island on 18 August 2010 without documentation and on 24 October 2010 requested a Refugee Status Assessment.
On 12 April 2011 the Delegate of the Minister found that the Applicant did not meet the definition of a refugee for the purposes of the Convention because the Delegate found that his fear of persecution, as defined by the Refugees Convention was not well-founded.
On 2 May 2011, the Applicant requested an Independent Merits Review of his claim. On 5 July 2011, the Applicant’s representative provided a submission in support of his claim. That submission does not refer to the Applicant’s mental health.
On 5 July 2011 the Applicant made a request that his psychologist be present at the IMR interview to assist him.[1] This was followed up by his representative on 8 July 2011.[2] On 13 July 2011, his case manager was notified by Detention Health that there was no objection to the Applicant having a psychologist present at his IMR hearing but that “he would need to engage the services of the psychologist himself. It would not be the IHMS Psychologist.”[3]
[1] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 174.
[2] Ibid, page 172.
[3] Ibid, page 171.
On 14 July 2011, Ms Jenette Stade (“Ms Stade”), the International Health and Medical Services (“IHMS”) psychologist the Applicant had been seeing, met with him. She advised him that a mental health (“MH”) representative could not speak (to the IMR) however his solicitor or the Reviewer could request a report from Detention Health.[4]
[4] Ibid, page 328.
On 15 July 2011, the Reviewer interviewed the Applicant by video link. The evidence was that the interview took four hours. At the interview the Applicant’s representative asked for the Applicant’s medical records to be taken into account as there had been issues on Christmas Island which might explain his inconsistencies and memory lapses; and that the Applicant had made allegations of rape, which may have affected him mentally and/or physically.[5]
[5] Ibid, page 489 at paragraph 101.
It is apparent that the Applicant’s representative did not have the medical records at the time,[6] but provided them to the Independent Protection Assessment Unit for forwarding to the Reviewer about one month later.
[6] Ibid, page 172.
The Reviewer dealt with this issue as follows:
I have examined the claimant’s medical records and note that while he may have been assessed variously by a psychiatrist and psychologist as being of low average intelligence and emotionally and intellectually immature, the psychiatrist assessed him as showing “no signs of depression or thought disorder.” Moreover, while the psychiatrist thought he would “have limited understanding of the process of applying for a visa”, there was no suggestion that this affected his memory or his ability to present a coherent and truthful account. I have also noted that the claimant had withdrawn his rape allegation. While the claimant’s psychologist stated that “his behaviour can become unpredictable when he becomes agitated” and the records indicate that he has been involved in incidents of violence at the detention centre, no such behaviour was manifested during the interview.
Consequently, I am not satisfied that any aspect of the claimant’s medical condition explains the significant inconsistencies, memory lapses and implausibilities in the claimant’s account. Rather, for reasons set out below, I find that the problems in the claimant’s account stem from the fact that his account was untruthful.[7]
[7] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 489 at paragraphs 101-102.
On 15 September 2011, the Reviewer concluded that the Applicant did not meet the criteria for a protection visa. She did not find the Applicant to be a reliable, credible or truthful witness and questioned whether anything the Applicant said could be relied upon. She did not accept that he was who claimed he was or that he had a well-founded fear of persecution for a Convention reason on return to Iran.[8]
[8] Ibid, page 489 at paragraph 103.
On 17 October 2011, the Applicant lodged this application for review of the IMR recommendation.
Grounds of the application
The common law rules of procedural fairness were not afforded to the Applicant:
·The Applicant’s capacity to participate in the hearing was significantly diminished by his mental health issues.
·The IHMS and the Department of Immigration and Citizenship (“DIAC”) disallowed the Applicant’s treating psychologist from attending the IMR interview.
·The Reviewer failed to make a relevant inquiry into the Applicant’s mental health and particularly his ability to participate sufficiently in the interview.
Objections to evidence
The First Respondent objected to certain evidence sought to be relied upon by the Applicant. This consisted of:
(a)Medical records of the Applicant post-dating those before the Reviewer;
(b)A report by Professor Louise Newman, Professor of Developmental Psychiatry, Monash University; and
(c)A report by Dr Dennis Velakoulis, Director of Neuropsychiatry, Royal Melbourne Hospital.
The objections to (a) were on the grounds of relevance and hearsay – the documents were not before the Second Respondent and effectively consisted of the file notes of third parties. The objection to (b) and (c) was again on the basis that the reports were not before the Second Respondent and, second, on the basis that the reports, based on clinical interviews with the Applicant, post-dated the IMR interview by a considerable time in the context where the Applicant’s condition was apparently deteriorating.[9] Further, the reports were not prepared for the purpose of determining the Applicant’s capacity as at July 2011.
[9] Distinguishing Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 per Keane CJ at [17].
The Applicant in response submitted that the issue of whether material, not before the decision-maker, was admissible depended on the grounds for review.[10] In particular, where the claim is denial of procedural fairness, evidence not before the decision-maker may be relevant and admissible.[11]
[10] Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 per Kenny J at paragraph [31].
[11] Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 per Kenny J at paragraph [35]; see also SZMYO vMinister for Immigration and Citizenship [2011] FCA 506 at paragraph [77].
In this case the material goes to establishing the Applicant’s mental state and is therefore relevant to the grounds at issue.
In relation to the medical reports, the Applicant submitted that both Professor Newman and Dr Velakoulis had before them material and medical information which pre-dated the IMR interview or was around that time. The Applicant conceded that the reports were not prepared for the purpose of determining the Applicant’s capacity to participate fully in the IMR interview. That, however, goes not to the question of admissibility, but to weight.
On the question of hearsay in relation to the medical records of the Applicant, the submission put by the Applicant is that these are ‘business records’, a recognised exception under the Evidence Act 1995 (Cth).
I am satisfied that the Applicant’s medical records are admissible. They are admissible as ‘business records’ pursuant to s.69 of the Evidence Act 1995 (Cth) and they also go to grounds (a) and (c) of the Applicant’s grounds of review. I am further satisfied that the relevance of the evidence of Professor Newman and Dr Velakoulis can best be judged from considering their oral evidence.
Having heard that evidence I am satisfied that the process of diagnosis undertaken by Professor Newman and Dr Velakoulis included a review of the Applicant’s medical records, including previous assessments of him which were closer in time to the IMR hearing. While it is clear that aspects of the Applicant’s presentation fluctuated and deteriorated over time it is likely that any assessment of his intelligence or of any mental condition involving a developmental disorder would be relevant to a consideration of the Applicant’s capacity at any point, as such conditions would be likely to pre-date his assessment by the Reviewer.
The weight to be given to the evidence, however, must be considered in light of the fact that neither witness was asked to evaluate the capacity of the Applicant to participate in an IMR interview conducted in July 2011.
The evidence is admissible and of sufficient relevance to be taken into account, but limited in the weight which it can be given.
The Applicant’s submissions
In relation to ground (a) the Applicant submits:
·The Applicant was denied natural justice, as his capacity to participate in the hearing was significantly diminished by his mental health issues.
·A person may be denied natural justice if their capacity to participate in a hearing is ‘significantly diminished’ by a mental illness or similar condition.[12]
·It is not necessary to demonstrate total incapacity to participate in a hearing before a denial of natural justice will be made out.[13]
·The test of fitness is not set down. There is no absolute way it can be determined. It will always be a question of fact and whether or not in the circumstances of the case the Applicant in question did have the capacity to understand and respond to questions.[14]
·In the present case the evidence establishes that:
(i)The Applicant probably has autism spectrum disorder,[15] although definitive diagnosis is likely impossible;[16]
(ii)The Applicant is subject to “intellectual and social limitations”,[17] including being of “below average” intelligence;[18]
(iii)The Applicant’s presentation and demeanour is “child like”,[19] as is his mode of speech in his native language;[20]
(iv)The Applicant is a “concrete’’ thinker in the psychological sense;[21] and
(v)The Applicant has little or no insight into how the visa application process, including the IMR process, operates.[22]
[12] Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [102] per French J, approved by the High Court of Australia on appeal: SZFDE v Minister for Immigration and Multicultural Affairs (2007) 232 CLR 189.
[13] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [85].
[14] NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [69].
[15] Standard Health Event, 8 February 2012.
[16] Standard Health Event, 6 March 2012.
[17] Standard Health Event, 6 March 2012.
[18] Report of Dr Kipling Walker, MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 455.
[19] Ibid, page 454.
[20] Ibid.
[21] Standard Health Event, 5 September 2011.
[22] Report of Dr Kipling Walker, MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 455.
Further the oral evidence establishes that the Applicant did not understand his current situation.[23] He has a complete lack of understanding of the process he was involved in.
[23] Transcript of Proceedings, 28 June 2012, page 19 at lines 44-47.
The decision of the Reviewer turned on adverse credibility findings based on the fact that the Applicant had inconsistencies in his evidence, he was vague, unable to explain his position, unable to recall events about what his family did and how much they earned. It was a wholesale rejection of his evidence. What emerges from the record, as recorded by the Reviewer, is that every single basis on which he was said to not be a credible witness shows confusion, and lack of understanding and that is consistent with the evidence not only of Professor Newman and Dr Velakoulis but of Dr Walker and the neuropsychologist, Dr Tang.
The Applicant’s understanding and explanation of the processes, particularly the legal processes that he is engaged in, on the evidence, is way off the mark. The Applicant really did not have an appreciation of the process and does not have an appreciation of the issues he needs to address.
The material before the Court goes substantially further than the material that was before the Reviewer and while it is appropriate to give weight to the assessment of the Reviewer is it not determinative.[24] The length of the interview and the frequent need to repeat or rephrase questions is consistent with the medical evidence regarding the Applicant’s intellectual limitations.
[24] NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [68].
The Applicant submits that Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[25] (“SCAR”) and Minister for Immigration and Citizenship v SZNVW[26] (“SZNVW”) are distinguishable because they turn on the language of s.425 of the Migration Act 1958 (Cth) (“the Act”) which is not applicable to IMR proceedings.[27] Further, in SZNVW there was no suggestion that the Applicant’s condition (post-traumatic stress disorder) impaired in any substantial way his capacity for rational decision-making in his own interests so far as the presentation of his case was concerned.[28]
[25] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.
[26] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575.
[27] SZQLZ v Minister for Immigration and Citizenship [2012] FMCA 1 at [37]-[38].
[28] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [15] and [48].
In this case the Applicant’s intellectual and decision-making limitations have been identified.
In relation to ground (b) the Applicant submits:
·French J in Minister for Immigration and Multicultural Affairs v SZFDE[29] (“SZFDE”) identified several bases on which a third party’s conduct might constitute a denial of procedural fairness. These included a failure by a third party to provide to the Tribunal documents in its possession or power which would be favourable to that person. While French J spoke of the obligation in terms of ‘documents’ there is no logical reason why this could not be extended to the attendance of a person.
[29] Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365.
·The Applicant referred the Court to the English case of R v Criminal Injuries Compensation Board; Ex parte A[30] (“Ex parte A”). An Ex parte A obligation will arise where:
[30] R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330.
(i)A person has information regarding a matter before a decision-maker;
(ii) The information is favourable to the applicant; and
(iii)The person stands in a ‘special relationship’ with the decision-maker.
·In the present case, the first two criteria are satisfied:
(i)IHMS staff, and Ms Stade in particular, had a significant body of knowledge regarding the Applicant. Ms Stade had been the Applicant’s treating psychologist since 7 February 2011.[31] Due to the length of this relationship, Ms Stade was uniquely well-qualified to comment on the Applicant’s mental health. As such, it is clear that the IHMS, and through them DIAC, had information regarding the Applicant and his mental health;[32]
(ii)The information available to IHMS staff was broadly favourable to the Applicant in that it tended to suggest that he was suffering from significant mental health issues, which might make him be unable to represent himself or impair his participation in any hearing. This information was also known to DIAC, as demonstrated by the comments made by Mr Andy Nguy in relation to the Applicant’s capacity.[33]
·In the present case, the Court should recognise a special relationship between DIAC/IHMS and the IMR:[34]
(i)DIAC is responsible for the management of individual cases on Christmas Island. IHMS is employed, by the Department, to provide mental health services to detainees on Christmas Island;
(ii)As a practical matter, it is extremely difficult for detainees on Christmas Island to access outside psychologists or psychiatrists. In essence, IHMS are the only source of mental health services available to detainees;
(iii)Even if an outside psychologist or psychiatrist could be retained, it is unlikely that such a psychologist or psychiatrist would have the same level of exposure to the patient as employees of IHMS. As such, IHMS employees are uniquely well-qualified to comment on the mental health and functioning of detainees;
(iv)It is also relevant, although it cannot be determinative, that the Applicant expressly requested that someone from IHMS appear at his hearing and give evidence about his mental health.
[31] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 207.
[32] Ibid, page 395.
[33] Ibid.
[34] SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 at [68].
The Applicant submits that the decision by DIAC/IHMS not to have Ms Stade at the hearing disadvantaged the Applicant. Had someone attended it would have been open to the Applicant’s representative or the Reviewer to raise issues of the Applicant’s competence with an expert.
In relation to ground (c) the Applicant submits that the Reviewer constructively failed to exercise her jurisdiction by proceeding to make a decision in circumstances where there was significant uncertainty about the Applicant’s ability to participate effectively in the hearing:
·On 17 August 2011, the Applicant’s health records were provided to the IMR, which revealed that:
(i) The Applicant had significant mental health issues;
(ii)Both the Applicant’s case manager and his treating psychologist had expressed concern about whether or not the Applicant was actually capable of representing himself at the hearing;
(iii)No testing had been conducted, or could be conducted, on Christmas Island to assess whether the Applicant was, in fact, capable of participating effectively in the hearing;
(iv)The Department proposed to send the Applicant to the mainland for assessment of his cognitive functioning.
·In Minister for Immigration and Citizenship v SZIAI,[35] (“SZIAI”) the High Court unanimously recognised that a decision-maker under a duty to review an earlier decision may fail to exercise their jurisdiction if they fail to make ‘an obvious inquiry about a critical fact, the existence of which is easily ascertained’.[36] This observation appears to have been broadly modelled on Wilcox J’s formulation of the duty to enquire in Prasad v Minister for Immigration and Ethnic Affairs,[37] approved by the Full Court in a number of cases.[38]
[35] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
[36] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].
[37] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, at 169-170.
[38] For example, Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272
The Applicant submits that to the extent that SZQLZ v Minister for Immigration and Citizenship[39] (“SZQLZ”) suggests that the IMR cannot come under a duty to enquire it should not be followed. First, because the Court in SZQLZ misinterpreted the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[40](“SGLB”) (which turned on the application of s.426 and s.427 of the Act, provisions not applicable to the IMR) and second, because SGLB must be read subject to SZIAI.
[39] SZQLZ v Minister for Immigration and Citizenship [2012] FMCA 1.
[40] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.
The question of the Applicant’s cognitive functioning was both obvious and critical. It was raised in the letter of Ms Stade, dated 7 August 2011,[41] and the questioning by the Applicant’s case manager of his ability to represent himself at the IMR hearing. The Applicant was clearly vulnerable, he had requested his psychologist be present which was refused. Adverse credibility findings were made entirely on the basis of the way he gave his evidence, in circumstances where his ability to give evidence was an open question.
[41] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 459.
The First Respondent’s submissions
In relation to ground (a) of the Application for Review the First Respondent submits that the relevant question is the capacity of the Applicant to participate in the IMR hearing. The evidence, so far as it is admissible, is that the Applicant’s presentation fluctuates and is very much a function of anxiety and stress. There is no evidence of anxiety or stress being a feature of the interview with the Reviewer. There is in fact a clinical note that the Applicant was very happy with the hearing and the way it proceeded.[42]
[42] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 329.
The evidence of the Applicant’s mental state prior to the IMR interview is:
·30 August 2010, mental state examination showed his form of thought to be “logical and sequential”[43] and he had a “good aware[ness] of the situation”.[44] He was able to answer questions immediately with no evident perceptual problems.[45]
·27 June 2011, assessment by Dr Kipling Walker. His language was observed to be “childlike”[46] and he was “childlike in manner”[47] and of below average intelligence. It was Dr Walker’s impression that he would have “limited understanding of the process of applying for a visa.”[48]
[43] Ibid, page 403.
[44] Ibid, page 403.
[45] Ibid, pages 403 - 405.
[46] Report of Dr Kipling Walker, MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 454.
[47] Ibid, page 454.
[48] Ibid, page 455.
At the interview with the Reviewer he participated in answering questions and provided clarification of and argument in support of his claims.[49]
[49] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, pages 472-480.
The First Respondent submits that neither Professor Newman nor Dr Velakoulis could give an opinion as to the Applicant’s fitness to participate in the IMR hearing on 15 July 2011.
Whether there has been a reviewable failure of procedure will depend on the circumstances and may arise where, by reason of a psychiatric or other medical condition, a party has a significantly diminished capacity to participate in an oral hearing.[50] The relevant principles applicable are:
·There is no competency requirement under the Act;[51]
·Fitness to give evidence is a jurisdictional fact upon which the Court must reach its own view;[52]
·The question is to be determined having regard to the particular circumstances including the purpose of the hearing and the support and assistance available to the Applicant[53] and the fact that the proceeding is not adversarial and the procedure is flexible;[54]
·The existence of psychological conditions and the fact the Applicant is undergoing treatment for these conditions is relevant but not determinative of fitness;[55]
·Weight ought to be given to the Tribunal’s assessment of the Applicant’s capacity to give evidence at the time;[56]
·The Applicant bears the onus of establishing the absence of fitness to give evidence;[57]
·A hearing may proceed notwithstanding some measure of psychological stress or disorder in the applicant;[58] and
·The Court may proceed on the basis that most applicants will not have a detailed understanding of the requirements of the Act or of the precise nature of the evidence that might assist their claim.[59]
[50] Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [102].
[51] Minister for Immigration and Multicultural and Indgenous Affairs v SGLB (2004) 207 ALR 12 at [45].
[52] NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [46].
[53] NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [58] and SZMSA v Minster for Immigration and Citizenship [2010] FCA 345 at [97].
[54] NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [56].
[55] Ibid at [52].
[56] Ibid at [68].
[57] Ibid at [69].
[58] Ibid at [52].
[59] Ibid at [57].
The relevant question is the capacity to participate in the interview not the capacity to understand the IMR process. The evidence before the Court suggests that the Applicant’s situation is complex. There are a number of different diagnoses which appear to be provisional and require further investigation. It goes no higher than to say that there may be some degree of psychological disturbance.
Evidence of an impairment is not enough. The Applicant was able to engage meaningfully in the interviews with Professor Newman and Dr Velakoulis. The real issue is the Applicant’s capacity to understand and respond to questions. It is not about the level of sophistication. It is not about IQ. It is not about mental impairment. What the Court needs to be satisfied of is the Applicant’s capacity to respond to the questions put to him. It is not the test for capacity in criminal proceedings where the individual must understand the process and be able to instruct in their defence.
It was a four-hour hearing because the Reviewer had to keep repeating the questions. This is demonstrative of the Reviewer’s ability to adapt the process to the Applicant’s ability. What the Reviewer found does not bear on the question of capacity. The record shows that the Applicant was able to participate meaningfully and to answer questions meaningfully. He was also assisted by a representative who made written submissions on his behalf.
The material before the Court is inconsistent. There may be evidence of a degree of impairment but there is no indication of how that impacts practically or the ability to answer questions. If there is no evidence on those points, then there is no basis for a finding in the absence of capacity.
In relation to ground (b) the First Respondent does not concede that the principle articulated in Ex parte A has been incorporated into Australian law.[60]
[60] SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123.
Even if it did apply the conditions are not made out on the facts of this case:
·The Applicant made no application to the IMR to have Ms Stade appear to give evidence and did not seek to obtain a report from her to place before the IMR.
·There is no indication that if she were called, Ms Stade would have given evidence “firmly corroborative”[61] of his current claim to have been medically unfit and she has not been called to give evidence in these proceedings.
·Neither the Applicant nor his representative sought to take the matter further when informed that she could not attend the IMR with the Applicant.
[61] First Respondent’s Submissions, filed 22 June 2012 at paragraph 44.
Further the First Respondent submits:
·The circumstances of the case do not favour a finding of a ‘special relationship’ between DIAC and the Reviewer. The Second Respondent acts independently of DIAC. She may seek information from DIAC but does not rely on DIAC for information unlike the Criminal Injuries Compensation Board in Ex parte A which relied exclusively on police information.
·If there were some breach or default on the part of DIAC (which is denied) any such failure cannot be visited on the Reviewer.[62]
[62] SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 at [73] and WAGP vMinister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413.
In relation to ground (c) the First Respondent submits:
·The First Respondent does not concede that the Second Respondent has any common law obligation to enquire;
·To the extent that any general obligation of inquiry exists it was not engaged in the circumstances of this case:
(i).The Second Respondent conducted its hearing without notice of any concerns regarding the Applicant’s fitness to give evidence. The material the Applicant had supplied in support of his claims, the way in which he participated in the interview, his conduct generally and the conduct of his agent did not directly or indirectly raise fitness to give evidence as an issue of any relevance.
(ii).The Applicant’s mental health was raised at the conclusion of the hearing in an oral submission concerning credibility.[63] That submission was never developed and was not accompanied by any application for an adjournment or other procedural accommodation.
(iii).The material placed before the Second Respondent after the conclusion of the hearing did not contain any medical evidence concerning the Applicant’s fitness to give evidence, even though Ms Stade acknowledged the existence of concern by the Applicant’s case manager in this regard.[64] That lack of evidence persists.
·An obligation to enquire only arises, if at all, in cases where it is obvious that material is readily available which is centrally relevant to the decision to be made. The Second Respondent already had before it medical documents from IHMS – none of which raised concerns regarding fitness to give evidence. In light of the material and submissions before the Second Respondent, as well as the Applicant’s demonstrated ability to engage during the interview this is not a case where it was ‘obvious’ that material was ‘readily available’ and ‘centrally relevant’ to the decision to be made. Rather, the material before the decision-maker was sufficient to support a finding of fitness, particularly in circumstances where the Applicant himself took no issue with his fitness to give evidence.
[63] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 480.
[64] Ibid, page 459.
The First Respondent further submits that SZIAI is support for the proposition that a failure to enquire does not constitute a breach of the requirements of procedural fairness at common law. SZIAI is expressly against such a proposition. It states that:
[A] failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.[65]
[65] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].
Conclusions
In SZFDE, French J, after reviewing the authorities concluded:
The application of the general principles emerging from the authorities discussed above, establishes that procedural unfairness affecting a person’s right to a hearing before an administrative tribunal can be a ground for judicial review without any fault on the part of the Tribunal. Whether there has been a reviewable failure of procedural unfairness will depend upon the circumstances. On the basis of the cases discussed above, it may arise where:
By reason of a psychiatric or other medical condition a party has a significantly diminished capacity to participate in the oral hearing.[66]
[66] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [102].
One of the cases referred to by his Honour was SCAR[67] where the unfairness was found to arise from the Respondent’s extreme distress and the effect upon him of medication at the time of the hearing which followed shortly after his father’s death.
[67] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.
The circumstances under which a failure of procedural fairness might be founded on the impact of a psychiatric or other medical condition or the Applicant’s capacity was further defined by the Full Court of the Federal Court in SZNVW.[68] In that case the Federal Magistrate found that the person “probably gave his evidence (to the Tribunal) when suffering from mental impairments affecting his memory, ability to recall details and capacity to engage in discussions about his history and opinions”.[69]
[68] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575.
[69] Ibid at [11].
Keane CJ noted in overturning the decision at first instance that there was no finding that the person’s “psychological condition denied him the opportunity to give such evidence and present such arguments in support of his application as he thought appropriate”, nor was there any “suggestion that his condition impaired in any substantial way his capacity for rational decision-making in his own interest so far as the presentation of his case was concerned.”[70]
[70] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [15].
Further, his Honour referred to the decision in SZMSA v Minister for Immigration and Citizenship[71] in support of the contention that an applicant’s psychological difficulties would not serve as to deprive him of a ‘meaningful opportunity’ to be heard where it was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.
[71] SZMSA v Minister for Immigration and Citizenship [2010] FCA 345.
As Perram J pointed out, in the same case, the authorities do not require total unfitness but contemplate “the “compromise” of the quality of a substantive hearing in juxtaposition to its loss.”[72]
[72]Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [85].
The Court in SZNVW also referred to the decision of Branson J in NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs.[73] In that case, the Applicant was found to exhibit severe psychological symptoms and signs consistent with post-traumatic stress disorder (“PTSD”) and depression. Her Honour considered the decision in SCAR and based on the legislative requirements formed the view that what the Applicant should be competent to do was to give evidence and present arguments relating to the relevant issues.[74] That capacity needed to be considered in the context of an inquisitorial rather than adversarial process where most applicants would not have a detailed understanding of the requirements of the Act and of the precise nature of the evidence that might assist their claim.[75]
[73]NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56.
[74] Ibid, at [55].
[75] Ibid, at [57].
In the context of the case before her, her Honour was of the view that the applicant in that case needed:
[T]he capacity to understand that the tribunal was concerned that he had apparently advanced two separate sets of claims and that the tribunal considered that his credibility was for this reason suspect. He further needed, in my view, a capacity to understand and respond to the questions put to him by the tribunal concerning his experiences in Bangladesh and the process by which his claim to be entitled to a protection visa had been prosecuted in Australia.[76]
[76] NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [59].
While these decisions were made in the context of the specific provisions of s.425 of the Act, neither the Applicant nor the First Respondent suggested that the Court should not give them significant weight in considering whether the Applicant was denied procedural fairness by reason that his capacity to participate in the IMR hearing was significantly diminished.
I turn now to consider the evidence of the Applicant’s mental condition.
Evidence of Applicant’s mental condition
The Reviewer was aware of the following:
·The Applicant had had multiple ‘standard health events’ since his arrival at Christmas Island and had reported suffering from anxiety since he was 12 and having been medicated in Iran. She was also aware of multiple reports of concerns about his behaviour and that he had been prescribed Zoloft and Sertraline.
·On 14 June 2011, Louise Earnshaw (Psychologist) “had significant concerns about client’s preparation for IMR…Client had no insight into the reasons for his rejection nor into the IMR process.”[77]
[77] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 301.
·On 20 June 2011, Registered Nurse Dianne Hutchinson expressed “grave concerns for [the Applicant] … as he is constantly being seen by the Mental Health team and he has very poor coping skills.”[78]
[78] Ibid, page 303.
·On 27 June 2011, the Applicant was seen by Dr Kipling Walker, psychiatrist, who made the following observations:
o“Language is childlike.”[79]
[79] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 454.
o“Fatuous, childlike manner.”[80]
[80] Ibid, page 454.
o“No signs of depression or thought disorder.”[81]
[81] Ibid, page 454.
o“Below average intelligence.”[82]
[82] Ibid, page 454.
o“Will continue to be difficult to manage here, as he will (1) remain impulsive, (2) have limited understanding of the process of applying for a visa, and (3) probably be targeted by other detainees.”[83]
[83] Ibid, page 455.
Attendances with Ms Jennette Stade, psychologist
·14 July 2011: Applicant “asked for a MH representative to attend his IMR so the judge could understand his MH status. Advised him MH could not speak in such a forum, however, his solicitor or the Reviewer, could request a report from Detention Health.”[84]
[84] Ibid, page 328.
·15 July 2011: “[Applicant] indicated he was happy with the IMR Hearing. He was a man of few words today, but appeared happy. He suggested he was in the Hearing for 4 hours.”[85]
[85] Ibid, page 329.
·15 July 2011 (non-consultation note): “Met with DIAC, CM, Andy on 14 July 2011. Provided him with [Applicant’s] request form and further explained the situation. Andy raised concerns about [Applicant’s] I.Q. and whether he was capable of representing himself.”[86]
[86] Ibid, page 395.
Evidence of Applicant’s mental condition post-IMR
Neuropsychology Assessment by Ms Judy Tang:
·Reported behaviour difficulties worsened.[87]
[87] Judy Tang, Neuropsychology Assessment Report dated 17 October 2011, page 1.
·Report of head injury at 12 years of age (later denied in discussion with Dr Velakoulis).[88]
[88] Ibid, page 1.
·Oriented to time, person and place.[89]
[89] Ibid, page 2.
·Estimated level of intelligence within the ‘Low-Average’ range – weakness in some cognitive areas.[90]
[90] Ibid, page 2.
·“[A]ble to concentrate and participate in tasks”.[91]
[91] Ibid, page 3.
·“[A]ble to appropriately respond to questions”.[92]
[92] Ibid, page 3.
·“[S]ymptoms consistent with PTSD and/or severe anxiety from detention”.[93]
[93] Ibid, page 4.
·“[Applicant] does not present with an intellectual or learning difficulty. Assessment for Asperger’s syndrome could not be appropriately conducted due to [Applicant’s] anxiety to the current situation and environment, which impacts on his social ability and behaviour.”[94]
[94] Ibid, page 5.
Assessment by Dr Susan Weigall (Psychiatrist)
·5 September 2011: “No evidence of psychosis or depression. Concrete, but no difficulty with communication … Does not appear to be intellectually disabled. Reported to be literate and no difficulty with communication”.[95]
[95] Standard Health Event, 5 September 2011.
·A further attendance by the Applicant with Dr Weigall on 3 October 2011 was referred to in a letter from Dr Velakoulis, but not sighted by the Court.
Assessment by Dr Richard Yeatman (psychiatrist)
·29 December 2011: “seems much younger than his years … possibly schizoid … seems low average IQ”.[96]
[96] Standard Health Event, 29 December 2011.
·6 March 2012: “a simple man with a very limited coping repertoire … I postulate that he has an underlying developmental disorder or personality disorder with schizoid personality features, which may be very difficult to formally diagnose without collateral history, especially in regards to his early social and intellectual functioning”.[97]
[97] Standard Health Event, 6 March 2012.
·9 March 2012: “OE talkative, often fatuous and a bit grandiose … intellectual and decision making limitations … immature personality style.”[98]
[98] Standard Health Event, 9 March 2012.
Review by Dr Tim Dawbarn and Dr Peter Young (psychiatrist)
·“P Dx Asperger like syndrome”.[99]
[99] Standard Health Event, 8 February 2012.
Assessment by Dr Louise Newman
·“limited intellectual capacity … cognitive impairment, poor understanding of his situation and high levels of anxiety … possible neurobiological vulnerability (head injury) and neuropsychological deficits… Pervasive Developmental Disorder … mental retardation, severity unspecified”.[100]
·explanation for observations, “could be frontal lobe brain damage”.[101]
·Some documentation of deterioration and limited intellectual capacity – “unspecified degree of probable developmental delay, low/average intellectual functioning which can impact on someone’s capacity to fully understand their situation and the options available to them”.[102]
·No formal IQ testing done.[103]
·Meaningfully engaged – some conceptual difficulties and difficulties in understanding.[104]
·Frontal lobe dysfunction would impact on his capacity to assimilate information, judgement, higher level cortical functions.[105]
[100] Dr Louise Newman, Assessment Report, 2 May 2012, pages 3-4.
[101] Transcript of Proceedings, 28 June 2012, page 17 at line 42.
[102] Transcript of Proceedings, 28 June 2012, page 19 at lines 44-47.
[103] Ibid, page 20 at line 10.
[104] Ibid, page 20 at lines 18-25.
[105] Ibid, page 20 at lines 31-33.
Assessment by Dr Velakoulis
·“Memory of events was intact and he could recall past incidents following and prior to his arrival in Australia”.[106]
·Not “exhibiting any features of a neurological/neuropsychiatric condition”.[107]
·“Either has a pervasive developmental disorder or a personality profile within the schizoid spectrum”.[108]
·“Has an eccentric and concrete view of how the world works”.[109]
·“Perceives events in an eccentric and childlike manner without any ability to think through other possibilities”.[110]
·“Functions in the low-average intellectual range”.[111]
·Not in a position to diagnose cognitive impairment.[112]
·Mental health appears to have deteriorated – not able to give a reliable picture of mental condition in July 2011.[113]
·Was not a sophisticated personal history but no concerns about his ability to give him an account.[114]
·Interpretations of events rather concrete, not very abstract – goes back to the Applicant’s probable level of intellectual function.[115]
[106] Dr Dennis Velakoulis, Psychiatric Assessment Report dated 16 May 2012, page 4.
[107] Ibid, page 4.
[108] Ibid, page 4.
[109] Ibid, page 5.
[110] Ibid, page 5.
[111] Ibid, page 5.
[112] Transcript of Proceedings, 28 June 2012, page 28 at line 13.
[113] Ibid, page 29 at lines 16-21.
[114] Ibid, page 29 at lines 25-36.
[115] Ibid, page 31 at lines 11-14.
It is difficult to draw any definite conclusions about the Applicant’s mental state at the time of the IMR interview from the material before the Court. It is reasonable to conclude that the Applicant has limited intellectual capacity and the most likely diagnosis is that he has a pervasive developmental disorder.
While his behaviour and mood has fluctuated over the period, since August 2010, that he has been in detention and appears to have deteriorated over time, his intellectual capacity and developmental disorder would pre-date not only the IMR interview, but his arrival in Australia.
It is not possible for this Court to determine the Applicant’s intellectual capacity with any precision because he appears to have never been subjected to an IQ test. While he has been found to be “able to appropriately respond to questions,”[116] to have “no difficulty with communication,”[117] and to be “meaningfully engaged”[118] in clinical interviews with Professor Newman and Dr Velakoulis, he is also described as having “intellectual and decision-making limitations,”[119] “some conceptual difficulties and difficulties in understanding”[120] and to “perceive events in an eccentric and childlike manner.”[121]
[116] Judy Tang, Neuropsychology Assessment Report dated 17 October 2011, page 3.
[117] Standard Health Event, 5 September 2011.
[118] Transcript of Proceedings, 28 June 2012, page 20 at lines 18-25.
[119] Standard Health Event, 9 March 2012.
[120] Transcript of Proceedings, 28 June 2012, page 20 at lines 18-25.
[121] Dr Dennis Velakoulis, Psychiatric Assessment Report dated 16 May 2012, page 5.
It is possible that the Reviewer encountered some of these problems in the evidence that the interview took four hours and involved repetition and rephrasing of the same questions.
The evidence also suggests that the Applicant gave different accounts to different people and at different times of some matters, specifically about an incident in his childhood which resulted in a head injury and his assault by other detainees, although it appears possible that in the case of the latter, he changed his story for his own protection.
On the evidence before me it is not possible to reach a conclusion that the findings of the Reviewer on the Applicant’s credibility were or may have been influenced by his mental state. Nor however, can I be entirely certain that he understood the concerns about his credibility raised with him by the Reviewer.
I am reminded of the matters raised by Kirby J in his dissenting judgment in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[122] (“SGLB”) where he said the following:
Remembering the purpose of credibility: Credibility is often seen as the crucial issue in tribunal determinations of refugee status. The references in the Refugees Convention to the existence of “fear”, and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam ((2002) 190 ALR 402 at 420-421), “[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility”. There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue (Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs (unreported, Fed C of A, Full Court, No VG103 of 1998, 17 September 1998, BC9804822)). There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear.[123] The tribunal must be firmly told — if necessary by this court — that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.[124]
[122] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.
[123] J C Hathaway, The Law of Refugee Status, Butterworths, Toronto, 1991, pp 84–7; S Taylor, “Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions”, (1994) 13 University of Tasmania Law Review 43 at 64–71. See also Sivalingam (unreported, Fed C of A, Full Court, No VG103 of 1998, 17 September 1998, BC9804822); Abebe v Commonwealth (1999) 197 CLR 510 at 577 [190] ; 162 ALR 1 at 52 ; 55 ALD 1 at 51–2 per Gummow and Hayne JJ; S Kneebone, “The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?”, (1998) 5 Australian Journal of Administrative Law 78.
[124] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [73] pages 32-33.
Nevertheless it is for the Applicant to establish that he was unfit to take part in the IMR hearing.[125] On the material before me I am not able to determine that the degree of impairment suffered by him was such as to render him incapable of understanding questions put to him and answering those questions. Nor am I able to say that the unreliability of his answers was solely a function of his mental state.
[125] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [36], per Gleeson CJ.
Ground (b) of the application deals with the issue of the decision by the IHMS and DIAC not to allow Ms Stade to attend the hearing with the Applicant.
The Applicant refers the Court to the decision of the Court of Appeal in Ex parte A. There is some debate about whether Ex parte A has application in Australia.[126]
[126] See ReMinister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants s134/2002 (2003) 211 CLR 441; SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123.
Even if I were to accept that a distinction can be made between bodies such as the Refugee Review Tribunal (“RRT”) and Migration Review Tribunal (“MRT”) acting under a statutory framework and the IMR which is not covered by those same statutory requirements, and therefore cases such as SZOIN do not apply, the evidence falls short of the requirements necessary to meet the principles enunciated by the Court in Ex parte A.
The Applicant “asked for a MH representative to attend his IMR so the judge could understand his MH status.”[127] This was denied. He was advised that his solicitor could request a report from Detention Health. This was not requested. No request was made to the Reviewer to call for such a report or to call evidence from Ms Stade. A request was made for the Applicant’s medical reports to be provided to the Reviewer. Those reports, including file notes by Ms Stade and her report of 7 August 2011 were provided to the Reviewer.
[127] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 328.
It is not clear what information, in addition to that material, could have been provided by Ms Stade had she attended the IMR to provide information of the Applicant’s ‘MH status’.
Second, Ms Stade was in the same position as the other professionals in that the testing she refers to in her report which may have provided further information about the Applicant’s cognitive functioning ability was not available on Christmas Island. To the extent that her information was ‘favourable’ to the Applicant it suffered from the same limitations as other information before the Reviewer.
Third, Ms Stade was an IHMS psychologist. It is not clear from the material who made the decision that Ms Stade should not attend the IMR hearing. There was clearly no ‘special relationship’ between the Reviewer and IHMS and it is debateable whether a ‘special relationship’ existed between the Department and the Reviewer. The Reviewer clearly obtains information from the Department and there are memoranda in place which deal with services the Department will provide to IMR Reviewers. Reviewers are however, not limited to the information supplied by the Department, and as in this case, may receive information from the Applicant, including information derived from Departmental sources.
I am not satisfied that the decision not to allow Ms Stade to attend the IMR interview with the Applicant denied the Applicant procedural fairness, amounting to a jurisdictional error on the part of the Reviewer.
Ground (c) relates to the failure of the Reviewer to make relevant inquiries into the Applicant’s mental health and particularly his ability to participate sufficiently in the interview.
Was the Reviewer obliged to initiate inquiries into the capacity of the Applicant to participate in the interview process?
Prior to the hearing it is not apparent that the Reviewer had any notice that the Applicant’s capacity to participate was at issue. From the medical records before her after the interview she would have been aware that there were concerns about the Applicant’s level of intelligence, his capacity to understand the process involved in the IMR and to represent himself at the IMR hearing. It appears that the hearing itself “took some four hours”[128] and involved the Reviewer in rephrasing and re-asking a number of questions. The Reviewer appears, however, to have limited her considerations to whether there was any medical evidence that his condition “affected his memory or his ability to present a coherent and truthful account.”[129]
[128] MZYRX v Minister for Immigration and Citizenship & Mara Moustafine in her capacity as Independent Merits Reviewer, Court Book, page 489.
[129] Ibid, page 489.
She concluded that she was not satisfied “that any aspect of the claimant’s medical condition explains the significant inconsistencies, memory lapses and implausibilities in the claimant’s account”.[130] Given that the Reviewer had no evidence of the Applicant’s IQ or any concrete diagnoses of his condition, it is not entirely clear how she reached this conclusion.
[130] Ibid, page 489.
A clear understanding of the Applicant’s condition, in my view could only have been determined by testing of his IQ and a detailed psychiatric examination – neither of which appear to have occurred even now.
The issue is, was the Reviewer obliged to embark on such an inquiry? The duty of a decision-maker to enquire, to the extent that such exists, has been highly qualified in Australian law. The High Court in Minister for Immigration and Ethnic Affairs v Teoh[131] considered whether procedural fairness required the initiation of appropriate inquiries concerning the welfare of the Respondent’s children based on an expectation that in carrying out its functions the decision-maker would implement the provisions of the United Nations Convention on the Rights of the Child.
[131] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
Mason CJ and Deane J after discussing the decisions of the Federal Court in Videto v Minister for Immigration and Ethnic Affairs[132] and in particular the judgment of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs[133] went on to say:
Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.
Accepting the correctness of this approach in an appropriate case, it does not seem to us that the present case was argued on the ground of s 5(2)(g) or on the basis of Wednesbury unreasonableness. And we do not see how the suggested failure to initiate inquiries can be supported on the footing that there was some departure from the common law standards of natural justice or procedural fairness. Nothing in the two cases to which we have referred, or in Luu v Renevier ((1989) 91 ALR 39 at 45) or in Lek v Minister for Immigration, Local Government and Ethnic Affairs [No 2] ((1993) 45 FCR 418 at 437), the other cases mentioned by Lee J, supports that view.[134]
[132] Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167, per Toohey J at 178.
[133] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169.
[134] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, page 290.
Toohey J in the same case accepted the proposition that generally speaking, it is not the decision-maker’s duty to initiate inquiries, but went on to say:
The point is not that the delegate was obliged by the Convention to do so but that, had she done so, she might have been in a better position to meet the legitimate expectation to which the Convention gave rise.[135]
[135] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, page 302.
Gaudron J, who was the fourth judge in the majority, also expressed the view that while procedural fairness required the decision-maker to inform the Respondent and give him the opportunity to persuade her otherwise, if she was considering proceeding on a basis other than one where the best interests of the children were taken into account, it did not “require her to initiate inquiries and obtain reports about the future welfare of the children.”[136]
[136] Ibid, page 302.
In Abebe v Commonwealth[137] the submission was made that the Tribunal should have made further inquiries about the possibility that the Applicant had been raped in detention. Gummow and Hayne JJ, in addressing this issue, dismissed it on the basis that no plausible and possible line of inquiry was suggested, that the Tribunal might have undertaken without needing to consider if such an obligation on the Tribunal to make further inquiries existed.[138]
[137] Abebe v Commonwealth (1999) 97 CLR 510.
[138] Ibid, page 578.
In SGLB, the Tribunal had obtained an assessment from a psychologist after the Applicant’s fitness to attend the hearing was raised, and having considered that assessment elected to proceed with the hearing. On appeal the Judge at first instance found, amongst other things, that having determined that the claimant was suffering from PTSD, the Tribunal failed to satisfy itself that he could take part in the proceedings. The High Court considered that the obligation on the Tribunal was limited. Gleeson CJ found:
Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the tribunal, apprehending that the respondent might be disadvantaged by “memory or other difficulties”, of its own motion, and with the respondent’s agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The tribunal was not then obliged to embark upon an open-ended investigation of the respondent’s psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage.[139]
[139] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [19].
Gummow and Hayne JJ determined the matter by reference to s.426 and s.427 of the Act finding that the Tribunal was under no obligation to enquire.[140] In relation to the question of competency they found that the Act made no competency requirement but considered:
That it is not to deny that the rules of procedural fairness may, in particular circumstances, arising in individual cases before the Tribunal, require some special steps or procedures to be followed.[141]
[140] Ibid at [45].
[141] Ibid at [45].
In SZIAI the issue concerned whether the RRT should have made further inquiries concerning the authenticity of certificates produced by the Respondent in support of his claim to be a member of a particular faith. The joint judgment of French CJ, Gummow, Hayne, Kiefel, Crennan and Bell JJ addressed the issue at paragraphs [16] to [27] of the decision. The Court considered, in particular the observations of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs. After, finding that it was:
[D]ifficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law.[142]
they went on to say:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.[143]
[142] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
[143] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].
Heydon J who concurred with the joint decision found it unnecessary to formulate what the general duty of the Tribunal was to make inquiries on the basis that in the circumstances of that case there was no doubt that the Tribunal was not obliged to make any more inquiries than it did.[144]
[144] Ibid at [36].
The First Respondent in this case submits that an obligation to inquire only arises, if at all, where it is obvious that material is readily available which is centrally relevant to the decision to be made.
I am satisfied that such an obligation, as confined by the exceptions set out does exist. Outside of those cases considered under the Act it has been accepted by the Federal Court in Tickner v Bropho[145] and Visa International Services Association v Reserve Bank of Australia.[146]
[145] Tickner v Bropho (1993) 40 FCR 183, at 197-199.
[146] Visa International Services Association v Reserve Bank of Australia (2003) 131 FCR 300 at 429-431.
This is, however, in my view not a case where material was readily available which was centrally relevant to the decision to be made.
First, it is not obvious that the Reviewer was under an obligation to be satisfied that the Applicant could understand the nature of the proceedings and was capable of doing any more than answer questions coherently. Second, it is apparent that material which would establish the Applicant’s level of intelligence and mental capacity was not readily available on Christmas Island.
Given the considerable reliance of the Reviewer of her assessment of the Applicant’s credibility, it may have been prudent to attempt to ascertain whether his capacity to participate meaningfully in the type of questioning to which he was subjected was compromised either by his intellectual capacity or by a developmental disorder. The Reviewer was not however under an obligation to make such enquiries.
For these reasons I must dismiss the application.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 23 August 2012
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