MZYWC v Minister for Immigration

[2014] FCCA 345

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYWC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 345

Catchwords:
MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958 (Cth), s.425

MZYWC v Minister for Immigration and Anor [2012] FMCA 797
MZYWC v Minister for Immigration and Citizenship [2012] FCA 1457
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; 75 ALD 151; 198 ALR 293
Minister for Immigration  and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; 96 ALD 510; (2007) 81 ALJR 1401; (2007) 237 ALR 64
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Applicant: MZYWC

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent: INDEPENDENT MERTIS REVIEWER

File Number: MLG 269 of 2012

Judgment of: Judge Riethmuller

Hearing date: 19 June 2013

Date of Last Submission: 28 August 2013

Delivered at: Melbourne

Delivered on: 28 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Watters of Counsel

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Knowles of Counsel

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application filed on 8 March 2012 and the Amended Application filed 24 July 2012 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $8,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 269 of 2012

MZYWC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant seeks judicial review of a decision of an independent merits review on the basis that he was not afforded a real opportunity to participate in the hearing before the reviewer.

2. In support of the application, the Applicant relies upon a neuropsychological assessment report prepared by Dr Lindsay Vowels on 6 July 2012.  The Minister placed evidence before the court with respect to assessments made of the Applicant on occasions when he was in detention prior to the hearing.

Background

1. The matter was first heard in this court in 2012 (see MZYWC v Minister for Immigration and Anor [2012] FMCA 797), following which a successful appeal was heard by Gray J in MZYWC v Minister for Immigration and Citizenship [2012] FCA 1457 whereby Gray J concluded that the report of Dr Vowels was admissible and “of high probative value”. The probity of the evidence was described by Gray J in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; 75 ALD 151; 198 ALR 293 as:

   17. In addition, factual distinctions between the facts of SCAR and the facts of the particular case were not relevant to the admissibility of the evidence of the opinion of Dr Vowels. It is difficult to see how the independent reviewer could have made any expert determination as to the mental condition of the appellant, based on the things that the appellant said in the course of the hearing before the independent reviewer. The significance of the principle in SCAR is that it is open to an applicant for a protection visa to challenge the findings made by a tribunal, or an administrative decision-maker, if that person is able to do so based on evidence that establishes a lack of mental capacity to participate in the hearing.

2. It is important to read the Full Court’s decision in SCAR in light of the further comments made by the Full Court in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666, and the decision of Tracey J (exercising power as a single judge on appeal) in Minister for Immigration and Citizenship v SZNCR [2011] FCA 369. In SZNVW, the Chief Justice made the point that:

   15. It is worth noting that the magistrate made no finding, and indeed on the evidence could have made no finding, that the respondent’s psychological condition denied him the opportunity to give such evidence and present such arguments in support of his application as he thought appropriate. There was no suggestion that his condition 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.

   and went on to explain at para.20 that:

   20. In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20] – [25], the contention that an applicant’s psychological difficulties were such as to deprive him of the "meaningful opportunity" required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition 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.

3. Ultimately, the Chief Justice concluded:

   36. There was, in my respectful opinion, no foundation for the magistrate’s ultimate conclusion that "the applicant was denied a fair opportunity of having the Tribunal assess whether those defects [in addition to demeanour, memory, and consistency] were attributable to a mental impairment, or to concerns about veracity." The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his "demeanour, memory and consistency", as he wished. There is no suggestion that his capacity to make decisions in his own interests in that regard was impaired by his condition.

4. In a concurring judgment, Emmett J said

   48. Whether or not the decision is correct, the Federal Magistrates Court in the present case made no finding that the Visa Applicant’s psychological condition denied him the opportunity to give such evidence and present such arguments in support of his application as he thought appropriate. It was not suggested that the Visa Applicant’s psychological condition impaired in any way his capacity to make rational decisions in his own interests in relation to the presentation of his case. Indeed, he adduced evidence as to his condition of procrastination, albeit as a justification for having delayed some three years before making an application for a protection visa.

   49. I have read the reasons of the Chief Justice in draft and agree, for the reasons given by the Chief Justice, that the appeal should be upheld. I agree with the conclusion of the Chief Justice that there was no foundation for the ultimate conclusion of the Federal Magistrates Court. The Visa Applicant had the opportunity to adduce such evidence as he considered appropriate as to his psychological state and its impact on his demeanour, memory and consistency. The Tribunal was not obliged to conduct an inquiry to discover whether the Visa Applicant might have been able to put his case better or support it with other evidence.

5. Perram J traversed the case law in some detail to explain the apparent difficulties between the wording of s.425, which appears to refer only to the issuing of an invitation, and the effect of the authorities based upon SCAR.  His Honour referred to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; 96 ALD 510; (2007) 81 ALJR 1401; (2007) 237 ALR 64, where competing views of members of the Federal Court were the subject of some explanation and comment by the High Court. His Honour concluded:

   83. There are, for present purposes two aspects of these observations which warrant particular emphasis. First, the question is not whether the applicant has, or has not been treated fairly; rather, it is whether the process contemplated by s 425 has been "subverted". Secondly, that subversion matters because if established it undermines the due administration of Part 7. The Parliament having expunged notions of fairness from Part 7 by declaring its procedures to be exhaustive statement of the requirements of natural justice – s 422B – it follows that the only issue arising in a s 425 context is whether the process contemplated by Part 7 has been carried into effect. The fairness – one way or the other – of that process is not germane to that inquiry. That, of course, is consistent with both the Full Federal Court’s decision in SCAR and the High Court’s decision in SZFDE, for in neither of those cases could it be said that the applicant had been treated unfairly by the Tribunal. It is not possible to say, in the circumstances, that SCAR is one of those cases which marks some outer limit from which a retreat is now being beaten. On the contrary, it appears to be consistent with the central reasoning in SZFDE. Because there was no argument about it, there is no necessity to comment on the impact of s 422B(3) on this analysis. A view is that it may be unavailable to have an impact on the continuing relevance of SCAR: see Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 at 432 [18] per Emmett, Kenny and Jacobson JJ.

   84. The present case comes then with two difficulties. The first is the fact, agreed by both parties, that the respondent’s disability was somewhat less in extent than that which afflicted the applicant in SCAR; the second, that the respondent’s impairment would not have prevented him, at least at a theoretical level, from seeking evidence of the impairment’s existence to put before the Tribunal.

   85 The first difficulty gives rise to questions of degree and practical judgment but the authorities do not necessarily require total unfitness. The passage quoted from French J in SZFDE above explicitly contemplates the "compromise" of the quality a substantive hearing in juxtaposition to its loss. Less tangentially, in the related field which deals with the effect of substandard translations on the Tribunal’s hearings, it is accepted that translation problems will result in a failure to conduct a review both when it is possible to say that the applicant has, in substance, not given evidence (Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at 6 [27] per the Court; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at 17 [21] per Kenny J) but also, more importantly, when errors made by the translator were material to adverse conclusions drawn by the Tribunal (Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18] per the Court; cf. Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [18] per Mansfield and Selway JJ).

   86. Thus the Tribunal may be held to have conducted no review in a variety of circumstances falling short of complete incapacity on the part of an applicant to conduct a hearing. That observation directs attention to the second difficulty, namely, the admitted capacity of the respondent to point out to the Tribunal the existence of his memory difficulty and the fact the he did so. No doubt, the point could have been presented in a better fashion by the respondent to the Tribunal (as it was before the Federal Magistrate). But that underscores that what went wrong was the manner in which the respondent ran his case. If that default could be linked to his memory problem then it might be possible to say the review function had been stultified (for example, by means of an argument that the respondent forgot to tell the Tribunal that he had memory problems). But it was not suggested that the respondent’s failure to seek to put on medical evidence of his memory problem was caused itself by that memory problem.

   87. That being so, I do not think it can be said that the Tribunal’s review function was stultified or frustrated. The respondent suffered the misfortune of not running his case as well as he might have. Regrettably though that outcome might appear to be, this Court is bound to conclude that "a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made": SZFDE at 207 [53] per the Court. Whatever disquiet one may feel about the Tribunal’s reasons, now to permit review effectively for an error in presentation would be to create a most unwholesome precedent.

6. In Minister for Immigration and Citizenship v SZNCR [2011] FCA 369, Tracey J, when addressing these issues, identified:

   33. It should be noted, in passing, that the Federal Magistrate’s penultimate conclusion in paragraph [124] is plainly consistent with SZWIY but inconsistent with SZNVW. The mere possibility that the Tribunal, had it been aware of an applicant’s mental state, may have formed a different conclusion about the applicant’s credibility is not sufficient to establish a contravention of s 425(1) of the Act.

   34. It is also to be observed that Dr Phillips went no further than finding that the visa applicant’s “mental state” had interfered with his capacity to advance his case before the Tribunal. Dr Phillips did not opine that the visa applicant was unfit to prosecute his application.

7. In turning to the evidence in this case, it is useful to commence with the opinion set out by Dr Vowels in her report.  At best, Dr Vowels says:

   Overall, from the observations I made of his presentation and test performance, I would not be confident that he can give consistent and appropriate responses in an important interview aimed to ascertain the recent events in his life leading to his seeking asylum in Australia.

8. As to the inquiry as to whether or not the impairment affected the Applicant’s memory or concentration during the interview or his ability to think in a clear and organised way, Dr Vowels said:

   … as noted in my comments on his performance on tests of these cognitive attributes, showed significant alterations in memory, increased forgetting and confusion, and poor self-monitoring leading to failure to recognise what had come before (impaired sequencing) and his failure to deal with the complexity of material presented which would be novel for him.  The questioning about the geography of his country would be unlikely to be familiar to him as, prior to his head injury and the subsequent events, my understanding is that his life was relatively confined to the regions around his own home and the villages in which he did his sheep dealing.  Thus, his confusion as noted by the interviewer may not be surprising.

9. In response to the question of whether or not the reviewer, if properly informed of the Applicant’s mental state, could have conducted the hearing differently to allow more meaningful participation, Dr Vowels noted that:

   It would seem that the extent of [the applicant’s] cognitive disabilities, although not immediately apparent from his so called “normal appearance”, and perhaps interpreted as fear or anxiety by the reviewer when he did notice something abnormal may not have been made apparent to the interviewer who may have altered his approach if he were informed of [the applicant’s] acquired cognitive impairment rather than taking account just of his background as illiterate, uneducated but with a history of surviving fairly well up to 2008 or so.  If the reviewer examined all 391 pages of the IFMS file, it would be apparent that the frequency and repetitive nature of complaints about memory, headaches, dizziness and failure to learn were not resolved with conventional regimes over a period of two years and hence may have warranted better attention such as referral to a neurologist to clarify the basis of the complaints.  Thus the process of interview may have been modified, but I can only speculate on this matter as the record of interview I have read focusses on other issues.

10. When asked about the Applicant’s understanding, she said:

    Would he nonetheless be able to understand … the purpose of an interview and that there was a need for him to give his best responses on those issues?---Given I did not question him on this directly, I cannot give you a direct answer.  My understanding would have been that he would have perceived the importance of performing well and the relevance of such an interview.

    (See ps.74 to 75 of the transcript.)

11. Dr Vowels did not think the provision of a lawyer would have made a difference to his ability to participate in a migration interview (p.75).  When addressing the types of alterations of approach that could be made to improve the Applicant’s opportunity to participate in the hearing, Dr Vowels said:

    Probably making sure the questions are considerably briefer (page 77, line 10 through to line 31).

12. Dr Vowels continues at p.78:

    So as long as somebody is directing him about what they want to know about, he can answer that?‑‑‑It’s when a big – there’s – then it starts to rely on what information has been given beforehand, in other words, the working memory is being asked to retrieve things from a relatively short time ago, you know, 20 minutes ago you said this, but now you’re saying that.

    But if the topic 20 minutes ago was something that occurred three years ago and you returned to the same topic and asked the same question again, you would expect – you would still ‑ ‑ ‑?‑‑‑Well, one would expect that you may well become confused, whereas if it were relevant to something that happened 20 years ago, one would expect the same answer.

13. At p.81, she said:

    Assuming as a hypothetical matter that the interview lasted two hours and 45 minutes, would you say that was a reasonable amount of time – the final IMR interview?‑‑‑Certainly if there were brief breaks.  I don’t mean stop and go outside and have a cigarette and come back again.  I mean, you know, just the very small one or two minutes between questions allowing people to deal with any distress, and I would have thought this is a very qualified interviewer, he would pick that up fairly quickly.

14. In the evidence before me in the supplementary appeal book and appeal book which was relied upon by the parties in this case, it is clear that the review hearing commenced at 11.10 am, and was suspended at 12.13 pm until 12.17 pm (to allow the reviewer to go to the toilet), and further suspended at 12.50 pm until 12.56 pm before finishing at 1.05 pm.  The last break in the interview was to allow the Applicant’s representative to have an opportunity to speak to him before the interview concluded.  The person present, Mr Owad, was described in the interview as the Applicant’s “advisor” and came from a law firm, Florin & Bahava.  It is not clear from the material whether Mr Owad is a solicitor, migration agent or some other employee of the law firm.  No material was placed in evidence by the Applicant as to Mr Owad’s role.  Mr Owad was not called to give evidence.

15. Having listened to the electronic recording of the interview, it does not appear to me that it proceeded at a fast rate, particularly given that everything had to be interpreted for the Applicant.

16. Significantly, this is not a case where the Applicant has been in need of a litigation guardian in order to instruct his solicitors or present his case.  It is not put that the Applicant requires the appointment of a guardian for the management of his affairs.

1. The submissions of the Applicant conclude with the following submission:

   33. The Applicant respectfully submits that the following conclusions can be drawn:

   (a) That the Applicant has a significant cognitive impairment that affects his ability to recall, structure and present information in a way that affects his ability to give ‘consistent and appropriate’ responses in an interview situation;

   (b) That this cognitive impairment most likely developed prior to the IMR interview;

   (c) That this cognitive impairment most likely affected his ability to give evidence and present argument at the interview;

   (d) That the other circumstances of the case do not offset this impairment so that it can be reasonably said that the Applicant was given a meaningful opportunity to give evidence and present argument; and

   (e) Accordingly, the Applicant was denied natural justice.

2. If one were to accept submissions 33(a), (b) and (c), it does not necessarily follow that submission (d) would be accepted.  Whilst the Applicant may have been suffering from a cognitive impairment, he was given an opportunity to appear before the tribunal and attended, supported by a person from a law firm representing, or assisting, him in that process.  He was clearly able to engage with the reviewer and provide answers to questions.

3. The conduct of the review allowed opportunities for an actual break from time to time for the Applicant and was conducted in such circumstances that he had present his own advisor and an interpreter who spoke his own language.  Beyond suggesting breaks in the interview process, there seems to be little else that could have been done to provide the Applicant a greater opportunity to be heard.  Ultimately, even if he were to have a guardian appointed, his case would rest upon the basis of assistance from an advisor, such as the one that he had present at his review hearing, and his evidence before the reviewer.

4. Whilst on the evidence of Dr Vowels, (if it is accepted that the deficits she identified when she saw the Applicant were affecting him at the time of the review hearing), the Applicant could well have been assisted in better putting his case and better explaining the numerous inconsistencies in his evidence before the reviewer, this does not appear to be a case where he has, in substance, been denied an opportunity for a proper hearing.  Rather, it is a case where he now wishes to place further evidence before the reviewer as to his mental state in order to provide an explanation for the numerous inconsistencies given in his evidence before the reviewer.

5. In these circumstances I am not satisfied that Dr Vowels’ evidence, even at its highest, demonstrates that the Applicant was effectively denied a meaningful opportunity to present his case.  Rather, Dr Vowels’ evidence, if accepted, may have assisted the Applicant in attempting to explain the inconsistencies in his evidence (although the nature and significance of those inconsistencies was so significant that even Dr Vowels’ evidence may not have enabled him to succeed – see paras.23, 27 and 30 and 70 to 71 of the decision).

6. I turn then to Dr Vowels’ evidence itself.  I have a number of concerns about the extent to which weight could be placed upon it.  Dr Vowels’ expertise appears to be primarily in documenting disability to support applications for a disability support pension (transcript 31).  She has not given evidence in a case similar to this before.

7. Dr Vowels was not aware of the length of the Review interview or how many breaks took place in it, nor whether the questions were long or short or simple or confusing or otherwise.  The references in her report were only to the independent merits reviewer’s report, not to a transcript of the interview itself.

8. Nor does it seem that she was briefed with the inconsistencies that were identified by the reviewer so as to comment upon the likelihood or otherwise that they were as a result of the cognitive deficits that she identified.

9. The interview that Dr Vowels conducted with the Applicant extended for more than two hours, a longer time than the Review hearing.

10. Dr Vowels overlooked that there was a CT scan result in the medical material, and no MRI or CAT scan was undertaken for the purposes of providing any further evidence for her report.  Those scans may not have necessarily shown physical evidence of such an injury of such an injury, although could exclude any gross injury (see transcript p.53).

11. Dr Vowels placed considerable faith upon the interpreter used for the interview process, and early in her evidence gave the impression (although she had not specifically said) that she had some familiarity with the interpreter.  However, it transpired that she was unaware as to whether or not he was a NAATI accredited interpreter, or the nature of his qualifications, but simply relied upon the fact that he had been booked through Victoria Legal Aid whom Dr Vowels assumed recognised the importance of him being an appropriate interpreter.

12. At p.59 of the transcript she identified that she spent more time discussing a reported assault upon him which formed part of the basis of his refugee claim, than his self-report of having been assaulted in the detention centre.  However, Dr Vowels accepted that either event could well have been singly, or cumulatively, the cause of the deficits that she identified.  Given that Dr Vowels was asked to provide a forensic report, it is of concern that she would focus heavily on one potential cause and not another, particularly given that the alleged assault in detention may well have occurred after the review hearing in this case.  Similarly, she asked the Applicant no questions about what had happened to him since he had left the detention centre, and could offer no specific information in this regard.

13. When asked about whether or not the Applicant may well have been of below average intelligence from birth, Dr Vowels was of the view that it was unlikely on the basis that, as she said in evidence:

    Well, that was sort of using the commonsense thing, like if he was sent out with the sheep, if he was even as slow and thick as a kid, they wouldn’t – well, my impression would be it would be unlikely to have been – happened.  He was describing a childhood where he was trusted to do different things and so the assumption – and it was an assumption – that his family would have considered that he was not intellectually disabled.

    No, and what was he trusted to do?---Take the sheep out.  He told me – I only have – I have to believe what he told me – that when he was a little boy he was taking the sheep out.

    To sit and watch over the sheep?---Yes, and usually sheep are so important that one presumes you wouldn’t send a child that you perceive to be disabled out with the sheep so that’s another assumption I’ve made.

    One wouldn’t need significant cognitive capacity to watch over sheep?---That’s my impression, yes.

14. I find this a less than compelling reasoning process for concluding that the Applicant did not suffer some cognitive impairment when he was younger.

15. Dr Vowels accepted that the assault described by the Applicant was capable of causing brain injury that could cause these types of symptoms.  Dr Vowels also accepted that the deficits could be a mixture of events in Australia and in Afghanistan and also said that one cannot disregard the overlaying of distress.

16. A nurse, who was employed to assist those in detention was called to give evidence of an assessment that she undertook.  I found Ms Dowe’s evidence frank and forthright.  She identified that when she assessed the Applicant, being a registered nurse specialised in mental health nursing, she used two assessment tools. These were not specifically designed to assess a person’s cognitive function, but she noted that part of the questions relate to cognitive functioning.  In the mental state examination records she noted that the Applicant was reporting memory and concentration difficulties but had excellent insight into the realities of his detention situation.  She formed the view that he was suffering from mental distress and unresolved headaches.

17. From her evidence it is not clear that the medical records that have been produced would necessarily show all of the incidents that may have occurred whilst he was in detention, thus admitting the possibility that the version of events that he gave to Dr Vowels, as to further assaults, could well have occurred without specific recording of such events in the records that were produced to the court.

18. Whilst Ms Dowe’s evidence does not tell on the question of whether or not the Applicant suffered some underlying cognitive difficulties, (as identified by Dr Vowels) at that time, which were subtle, it certainly shows that he was aware of his circumstances and situation, at the time that Ms Dowe interviewed him.  This, in my view, weighs in favour of the proposition that he had sufficient capacity to participate in the hearing process.

19. A further witness, Ms Bright, was also called to give evidence.  However, her evidence was only a summary of the medical material that was within the court books.  It appears to me that her evidence adds nothing to the material before me. 

20. Ultimately, whilst I would accept, on the balance of probabilities, that the Applicant does exhibit some degree of cognitive impairment, at least in comparison to the average person, I am not satisfied, nor on the material before me would I be prepared to draw an inference on the balance of probabilities, as to when these impairments arose.

21. When considering the evidence as a whole, I am not persuaded that the Applicant did not receive a ‘meaningful hearing’ or was unable to ‘present arguments’.  He was given a hearing and supported in the process by an advisor from a law firm.

22. The fact that a person has an impairment that affects his or her ability to give evidence is not, of itself, sufficient to show they have not had a ‘meaningful hearing’ or an ‘opportunity to present arguments’.  It must be acknowledged that a proper process can allow for a proper hearing even if a person has significant impairments, otherwise cases involving people with impairments could never be heard.  The fundamental difficulty of running a case dependent on evidence of a person with an impairment should not be confused with the requirements of ensuring a real opportunity to be heard.

23. In the circumstances, I dismiss the application.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  28 February 2014