MZYWC v Minister for Immigration
[2012] FMCA 797
•12 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYWC v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 797 |
| MIGRATION – Application for review of Independent Merits Reviewer decision – whether applicant accorded natural justice – whether psychologist’s report made six months after hearing should be admitted before the Court – consideration of Full Court decision in SCAR. |
| Migration Act 1958, s.425 Evidence Act 1995, s.79 |
| Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 |
| Applicant: | MZYWC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DAVID CORRIGAN IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 269 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 21 August 2012 |
| Date of Last Submission: | 21 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Szydzik |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the first Respondent: | Mr. D. Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 269 of 2012
| MZYWC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DAVID CORRIGAN IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant's amended application filed on 24 July 2012 lists only one ground of application, namely that the Independent Merits Reviewer (“the Reviewer”) denied the applicant procedural fairness. Although various particulars are given, in summary they amount to the proposition that the applicant's capacity to participate in the hearing before the Reviewer was so significantly diminished by his then mental health issues that he was unable to participate properly in the hearing. The applicant submits that this amounts to a denial of natural justice.
In support of the application, the applicant sought to rely upon a neuropsychology assessment report prepared by Dr Lindsay Vowels signed on 6 July 2012. The first respondent opposed the admission of this report.
For the reasons that follow, I uphold the first respondent's objection and the application will be dismissed.
History of the matter
The background history in this matter is not the subject of controversy and what follows is taken from the submissions of the first respondent and the decision of the Reviewer.
The applicant is a 40-year-old Hazara who left Afghanistan towards the end of 2009 travelling via Pakistan, Singapore and Indonesia before arriving by boat at Christmas Island on 23 February 2010.
In Afghanistan he had worked as a farmer and occasionally undertaken construction work. He was a Hazara who lived in the Jaghori district of Afghanistan.
His wife and six children were living in Jaghori following his departure but now have relocated to Pakistan.
An Officer of the first respondent interviewed the applicant on 18 April 2010 and, having received a submission from the applicant's representatives on 21 May 2010, handed down a decision on 25 May 2010 that the applicant was not a person to whom Australia owed Convention obligations.
An Independent Merits Review (“IMR”) followed which took place on 24 September 2010 in the presence of the applicant and an experienced migration agent who assisted him. The IMR produced a recommendation which was set aside following an application for judicial review.
A further review hearing took place on 9 December 2011 when the applicant was again represented by a legal representative. The Reviewer produced the decision, the subject of this application, on
16 January 2012.
The Reviewer's decision
Having set out the relevant law and summarised the applicant's claims, in my view unexceptionably, the Reviewer set out at paragraph 20 to 39 (Court Book (“CB”) 155-159) a detailed history of the interview itself. Having read the transcript of the hearing which is an annexure to the affidavit of Yvonne Lipianin affirmed 6 August 2012, it appears to me to be an accurate enough recitation of what took place.
It should be noted that no criticism has been advanced by the applicant of the way in which the Reviewer conducted the hearing nor has there been any other exception taken to the Reviewer's reasoning or decision. As I have already said, the only point taken is the natural justice point arising from the applicant's alleged incapacity properly to participate in the review.
Having set out additionally a substantial amount of country information, the Reviewer went on to say at paragraphs 69-70 (CB 169):
“69. In considering a claimant's account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before a claimant fully appreciates what is relevant and the degree of detail required. However nor can significant inconsistencies or embellishments be lightly dismissed. Specific difficulties are dealt with below as they arise in relation to particular claims. I acknowledge that, in assessing the claimant's credibility, I must be sensitive to the difficulties faced by claimants in presenting their claims (including the passage of time, time spent in detention and the effects of trauma). I am not, however, required to accept uncritically any and all claims made by a claimant.
70. I have considered carefully the claimant's claims and circumstances but find that overall he is not a credible witness. I do so for the following reasons related to fundamental inconsistency and vagueness:”
The Reviewer went on to set out in detail findings to the effect that the applicant had not given consistent evidence and had given significantly inconsistent evidence in relation to important factual matters.
None of the Reviewer's findings themselves are the subject of any criticism.
The Reviewer went on to find that the applicant was not a person to whom Australia owed Convention protection.
The transcript of the hearing
As I have already noted, the Reviewer, in my view, fairly paraphrased the interview in his Reasons for Decision. What is relevant for present purposes are various references in the transcript to difficulties that the applicant was having. At p7-8 the applicant said:
“And last time I was a bit dizzy, I couldn't explain things properly.”
At p12 the applicant said, in response to the question "So where did this incident occur?"
“It was on the – on the way somewhere. So I can't exactly remember, but – because it’s been almost 22 that I've been here, and (indistinct) concentration and memory. And I'm not educated, not in English (indistinct).”
A few lines further he said:
“My memory’s suffering.”
Nonetheless, it must be observed that the applicant continued, as he had done previously and in my view did throughout the interview, to answer questions in a fashion the transcript suggests is reasonably clear and not on its face indicative of any cognitive problems.
At p18-20, the Reviewer put the gist of country information to the applicant and at p20 and following the applicant was able to respond.
At p23, the applicant said at line 16:
“Sometimes you – you can't remember in that minute, you say things, and then afterwards you – you remember about the Koochies, the Pashtun, the Taliban – they're all the same.”
At p27, the applicant stated at line 19:
“And then (indistinct) situation (indistinct) to the time in here, and I am not educated person, and even right now, whatever I said to you today – because of the division and suffering (indistinct) in the camp, I can't remember what even I say. Because my pressure in here, like in the camp, and plus the family in (indistinct), with no proper support to look after them, so all these pressures is killing me.”
At p29 at line 26, the applicant said:
“So I don't have any other things to say. And – but just I want to say is that (indistinct) here is a lot of pressure, in my head especially – mentally. (indistinct) and I don't remember what I'm saying sometimes.”
These extracts are of significance given the matter now in contest, namely whether the report of Dr Vowels should or should not be received.
The applicable law
It is clear that evidence of the sort that the applicant seeks to rely on is potentially admissible. See for example Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 at [31]-[32] per Kenny J. Weinberg J observed in Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 that such occasions would be rare but that:
“The very limited circumstances in which such evidence would be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim.”
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (“SCAR”), the Full Court had to consider whether s.425 of the Migration Act 1958 (“the Act”) had been complied with. In that case, the applicant had been the subject of an unsuccessful application to the Refugee Review Tribunal (“Tribunal”) before which he was unrepresented. The Tribunal found the applicant not to be a credible witness. At [9] the Full Court observed:
“Nevertheless, the primary basis for the Tribunal's finding on credibility was its subjective assessment of the manner in which the respondent gave his evidence.”
At [12], the Full Court recorded that in the proceedings before the primary judge:
“The respondent put material before the primary judge to show that he had been informed that his father had died some four days before the Tribunal hearing. He also put material before the primary judge that showed that in the period between his receiving notification of his father's death and the hearing he was so affected by the news as to require significant medical treatment. In particular, he put before the Court a letter from the psychologist at the Woomera Detention Centre. That letter told of the psychologist's observations of the respondent on the day of the hearing and then stated:
“In my professional opinion, he was in no condition to handle this interview. Not only was he totally unable to think clearly, but he was quite unprepared as he did not even know what day it was, and he had no support during the interview.”
There was some dispute as to the timing of the psychologist's observations. However, as it was put by the primary judge:
“The matter of importance is that it is common ground that on the day of his tribunal hearing the (respondent) was so distressed, because of his father's death, that he required medical treatment.”
The evidence put before the primary judge suggested that a possible explanation of why the respondent's evidence to the Tribunal had been vague and “confused" was because of his distress at the news of his father's death and because of the medical treatment, including drugs, that he had received in respect of that distress. Clearly if the Tribunal had been aware of the respondent's distress it may have proceeded differently. At the very least it may not have made the credibility findings it did make in the light of the alternative explanation for the inadequacy of that evidence.”
The Full Court went on to find at [41] that because of the findings of fact made by the primary Judge, the applicant had not received a meaningful invitation under s.425 of the Act even though the Tribunal was not aware of the applicant's condition. Accordingly, the Tribunal had fallen into jurisdictional error.
SCAR was the subject of a further consideration in Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575. At [17]-[19] (“SZNVW") Keane CJ said:
“17. … But even if the impugned finding of fact by the magistrate is accepted, it is clear that the present case differs markedly from SCAR.
18. In SCAR the Tribunal was oblivious of the facts which established that the applicant did not have a full and fair opportunity to present his case. The reasons of the Tribunal in the present case show that the respondent did, in fact, seek to rely upon his psychological problems first to explain his delay in applying for a visa, and then as a possible explanation for what might otherwise be thought to be unsatisfactory aspects of his evidence. Accordingly, this is not a case where the Tribunal was oblivious to the problem said to vitiate its jurisdiction.
19. More importantly, evidence that the respondent's psychological difficulties might explain an unconvincing performance during the hearing before the Tribunal is hardly apt to establish his unfitness to "give evidence and present arguments". It may be accepted that the Tribunal might have taken a different view of the credibility of the respondent's account of his circumstances in Pakistan if the further evidence relating to the respondent's psychological deficits and their impact on his ability to give persuasive evidence had been placed before the Tribunal. But the absence of that further evidence does not establish that the hearing before the Tribunal proceeded on a false assumption about the respondent's ability to "give evidence and present arguments relating to the issues arising in relation to the decision under review".”
The medical records from International Health and Medical Services
Some 391 pages or so of medical records were made available to Dr Vowels. Some of the matters revealed are worthy of note.
On 22 December 2011, the applicant was examined by Radiology Tasmania. Under the heading “Findings”, it is recorded:
“The cerebral cortical sulcal pattern is symmetrical and normal. Normal grey/white matter differentiation.
Ventricles, basal cisterns and craniocervical junction are normal.
There is no parenchymal or extraaxial lesion or mass effect.
COMMENT
Normal cranial CT.”
On 10 June 2010, under the heading “Standard Health Event” a mental health worker recorded:
“(Applicant) received a rejection for his visa application yesterday ...
…
(Applicant) presented in a poor mental state and said he had not slept all night due to the news of his rejection. He was very distressed since he said he once had been caught and tortured by the Taliban (alleged). (Applicant) said the idea of returning to Afghanistan is just filled with nightmares. Counsellor gauged client in a poor state. Referred to Mental Health team for possible medication to allow to get a good night sleep. Counselling will be more effective when (applicant) is more coherent and alert.
Prognosis and Plan
(Applicant) is having some sort of Stress Reaction to the news of his visa rejection. (Applicant) is booked in for another counselling session tomorrow when he should be more coherent and receptive to counselling strategies and advice.”
Another evaluation dated 21 June 2010 by Frances Monk states:
“Presented as low in mood, decreased motivation, received negative decision 10 days ago (every time he thinks of rejection he experiences psycho-somatic symptoms, such as, gastric reflux, ringing in the ears, becomes agitated physically and any loud music or noises affect him greatly). …
(Applicant) has been in detention for 4 months and all his friends were moved to Darwin recently. Describes feelings of loneliness and lack of concentration (does not attend English classes anymore) and feels he is going crazy. He wife and 6 children remain in Afghanistan and of course this is a constant stress and worry for him.”
On 17 July 2010, Jessica Costigan recorded various difficulties faced by the applicant including lack of sleep and drugs being taken which were not assisting. Ms Costigan recorded:
“Client also develops headaches when feeling stressed, particularly during immigration interviews.”
On 24 February 2011, Heather Heydenrych recorded:
“very well mannered, gentleman anxious and stressed about negative IMR. states he is sleeping on the tabelets prescribed but still feels sressed and anxious, states relaxation classes not working.” (sic)
On 1 March 2011, Karin Feuen recorded:
“… (Applicant) advised that he was feeling a bit stressed since he had received a negative handdown some 4 weeks ago.”
Similarly on 9 December 2011, Kathleen Rossiter recorded:
“Client presented to clinic complaining of headache after IMR interview. Client says he was feeling tense because of interview. Client looks like he has pain.”
He was given panadol.
I note that following that interview the applicant was referred to Christine Dow, Registered Nurse, on 19 December 2011 at which time he was still awaiting the result of his second IMR as he informed Ms Dow. There appeared to be some slight improvement in his condition.
On 26 January 2012, Prasanna Panditharatne recorded relevantly:
“Appearance: Appeared tired however he had a very high level of concentration as he has answered and engaged well with the Counsellor.
Mood: low, flat affect.
Concerns: Client reported thet he has been in detention 23 months, has negative outcomes, and his family in Pakistan having significant financial hardship. Reported that he has lost his credibility and his family has no respect towards him anymore. Exhausted coping mechanisms.” (sic)
I note that the referral to Radiology Tasmania followed another note by Ms Dow on 19 December 2011 which, in a non-consultation note, records:
“Client booked for on site GP consult 20/12/11, following reported unrelenting headaches not relieved by medication, and Hx head trauma from beatings by Taliban. Client has requested further investigation, including possible CT scan. Client has also accepted referral to Phoenix for T/T counselling.”
It is important to note that the CT scan which resulted showed no abnormality.
On 7 February 2012 Maria Lewis recorded:
“(Applicant) attended mental health today at allocated time for review of valerian trial and to monitor mood.
Client said the valerian trial did not work. Client reports he has difficulty getting off to sleep due to dreams. [Client has had a T/T referralcompleted last year]
Once client is asleep he van sleep for up to 5.5 hours.
Mood…. client describes as very sad, due to long stay in detention and worries in regards to his family and their safety.
Exercise… client says he walks 30-60 minutes per day, encouraged by writer to exercise more, to assist with going off to sleep
Apetite… eating small amounts..encouraged and educated by writer the importance of a balanced diet.
Sleep…as above
Memory/concentration…poor, encouraged to go to brain gym to assist with this. client refused.
Client has been in detention for almost 2 years, client vented his concerns about the visa process. Client reports he has been rejected x 3 and is now waiting for a lawyer to assist his with Judiciary Review.
Client showed good insight into his situation.
Client asked mental health if they could help him. Writer said her team leader can discuss his situation at a meeting on fridays which involves case managers. Client was happy with this outcome.” (sic)
While in a sense the various extracts speak for themselves, what should be noted in my view is that, wholly unsurprisingly, the applicant was saying over a substantial period of time that the process of review was stressful to him and that this was accentuated either by negative decisions or by hearings themselves. None of this could be thought to be in any way surprising in the circumstances.
What also seems to me to emerge, however, is that the applicant was perfectly capable of giving coherent and reasonably detailed accounts of himself to the various health professionals with whom he inter-related.
The report of Dr Vowels
The neuropsychology report produced by Dr Vowels followed an assessment on 18 June 2012. This appears to be the only occasion that she and the applicant have met.
The letter of instruction to Dr Vowels is exhibit B to the affidavit of Ms Lipianin affirmed 25 July 2012.
Relevantly, the question put to Dr Vowels was as follows:
“…
It is queried whether (Applicant) may be suffering from some kind of cognitive impairment which may have affected his ability to give evidence. While he acknowledges he is a simple, uneducated, illiterate peasant (Applicant) otherwise denies any psychological or intellectual problems, however, having met and spoken to (Applicant) I cannot help but wonder if something is amiss.
I have obtained (Applicant's) medical records from whilst he was in detention. While the records do not reveal any significant mention of actual or suspected psychological or intellectual disability, there is regular reference to (Applicant) suffering from quite severe and crippling headaches, the cause of which is never quite resolved. Significantly, there is mention of (Applicant) seeking medical assistance on the date of the second IMR interview because of his headache. Further, on 19 December 2011 (10 days after the interview), there is a note made following a health check that "Client has expressed self helping attitude and is interested in learning English and doing study, but is currently unable to concentrate or remember adequately. This is partly due to mental distress and also unresolved headaches, which have not been relieved by medication.” There is also regular mention of stress and depression throughout the records, as well as reference to an incident approximately 5 years ago when (Applicant) was hit in the head above his left eye by the Taliban.
Your opinion is required, on the basis of your analysis of the medical records and the assessment you undertake of (Applicant) in person as to whether (Applicant) was likely suffering from a cognitive impairment at the time that he was interviewed on 9 December 2011, and whether his impairment may have impacted on his ability to participate in the interview in a meaningful way.”
Dr Vowels was instructed that her report should address relevantly:
“Whether the impairment may have affected (Applicant's) memory or concentration during the interview, or his ability to think in a clear and organised way during the interview, or his failure to provide information consistent with that previously provided, or otherwise may have impacted on his ability to participate in the interview.
Whether the reviewer, properly informed of the applicant's mental state, could have conducted the hearing differently to allow (Applicant) more meaningful participation.”
Against this background, I come to the terms of Dr Vowels' report itself. Dr Vowels recorded her purpose/reason for assessment as follows:
“To investigate concerns about (Applicant's) memory and general cognitive functioning in order to consider if he was able to participate in a Merits Review interview and competent to give reliable and consistent information about his background and circumstances relating to his leaving Afghanistan and arriving in Australia seeking protection.”
I do not propose to set out the report obviously in terms, but I note the following points.
On the first page of the report, Dr Vowels records having read the applicant's medical records from IHMS and that:
“… On examination of the medical file of 391 pages, I find two references to the value of obtaining a CT scan of his head as a part on the investigation of the intractable and nonresponsive headaches but I could not find any report that such a neuroradiological study has been undertaken. I believe that (Applicant) himself is unsure that he has had any scans of the head. Despite his complaints of the headaches and some difficulties with vision and hearing and difficulties with concentration and memory, no formal investigations were undertaken such as a referral to a neurologist or neurosurgeon for investigation.”
I note that, in fact, there clearly has been a scan and that its outcome was normal.
Dr Vowels also referred to the fact that when under treatment:
“Attention was given to his mood using standardised assessment questionnaires such as the GHQ (General Health Questionnaire) and the DASS (Depression, Anxiety and Stress Scale) but now I have met (Applicant) out of detention I am concerned that he may not have dealt with those assessment tools in a valid and reliable way even with an appropriate interpreter and hence the screening Mental Health Nurses may not have been alerted to the extent of his psychological issues.”
I note as a matter of first principles that while these qualifications may be valid, one would assume as a matter of first principles that similar difficulties might attend any other tests such as those that Dr Vowels herself put in place.
Also on the first page of the report Dr Vowels said:
“It seems that (Applicant) has several potential and significant risk factors for acquired brain impairment in addition to the emotional trauma he has experienced in the past two and a half years in Australia. He is able to recall an altercation with members of the Taliban about four years ago in which he was beaten by a member of that organisation with a weapon to the head as well as blows to the body. It seems that this led to a brief loss of consciousness followed by a week or so of symptoms of concussion and some form of transitory weakness to the right side of the body which did resolve.”
It is clear from the terms of the report as a whole that Dr Vowels has accepted as a datum the applicant's account of the assault upon him by the Taliban, something the Reviewer expressly rejected – see paragraphs 70 and 71, CB 170. Under the heading “Diagnosis” on page 7 of the report Dr Vowels said:
“From the information gathered and test results obtained suggest that it appears that (Applicant) is displaying some symptoms of a moderate but significant cognitive disability which is probably of post childhood onset and most likely the result of the apparently minor head injury from the blows to his head with heavy objects (butt of rifle and sticks). However, at the functional level, it is very apparent that his chronic mood disorder could not be ignored as contributing, at least in part, to aspects of his poor cognition.
His memory is inefficient and unreliable and could not really be compensated by the use of even fairly simple external memory management strategies because of his other problems with insight and initiation (even if he could be persuaded to use them) as well as his illiteracy. His executive functions are not uniformly impaired but the capacity for new learning, abstract reasoning, selective inhibition and analysis and sequencing are moderately impaired which are probably the most important abilities for the decision making capacity and independent competence at organising information and coping with an official interview.”
It should be noted that the findings made by Dr Vowels are wholly predicated upon the proposition that the applicant was indeed assaulted by the Taliban as he said he was in circumstances where this basal fact has not been independently established.
I note that on page 7 of the report Dr Vowels said under the heading "Whether it was likely that (Applicant) was affected by cognitive impairment at the time of the interview":
“It seems very likely that (Applicant) has a cognitive impairment probably resulting from a traumatic head injury and impacting on the underlying brain. As he was seen approximately six months after the interview and has no record of head injuries or neurological illness since that time, then I believe it can be assumed that his level of cognitive impairment would have been approximately the same in December 2011. The fact that he was not in active detention when I met him may have lessened some of his previous distress which would have impacted on cognitive function and hence his disability may have been greater in December 2011.
…
I think it very possible that the cause of this impairment is the blow to the head suffered in? 2008 or? 2009 when he was assaulted by members of the Taliban.”
I note that it would appear from records in January and February 2012 that the applicant was functioning, at least on face value, perfectly satisfactorily, albeit of course not being without problems and difficulties.
The submissions of the parties
The applicant submitted that Dr Vowels' report, as an uncontradicted report, was both admissible and of considerable force. Counsel for the first respondent indicated that were the document to be admitted, there would be a desire to cross-examine and I expressly reserved the question as to whether further evidence might be led by the first respondent to challenge Dr Vowels' report.
Counsel for the applicant submitted that the question of the admissibility of Dr Vowels' evidence was a matter for the Court's discretion. It is implicit in such a concession that it involves matters of judgment and degree.
Counsel for the first respondent submitted that the report should not be received. He submitted that the report contests the views of the other mental health professionals set out in the 391 pages of material. He submitted that there were at least two occasions when the applicant attributed stress to hearings, a matter to which Dr Vowels made no reference.
Counsel for the first respondent referred me to the report from Tasmania Radiology.
Counsel also made the point that Dr Vowels' conclusions were based in part upon various tests. He submitted that such tests must be approached with considerable caution bearing in mind that they were tests designed for the largely literate, English-speaking, American population, not for an illiterate Afghan like the applicant. The applicant was, after all, being required to deal with completely new matters in English numbers and letters, not Farsi, and it was noted that at page 2 of the report of Dr Vowels, the applicant was exhausted throughout the one to two-hour process.
He further submitted that unlike SCAR, where the events giving rise to concern were contemporaneous with the hearing, this report had only been created six months later (although I note that in SZNVW Keane CJ was not troubled by a delay of similar time see SZNVW at [17]).
Consideration
In my view in the particular circumstances of this case, Dr Vowels' report should not be admitted into evidence. Each case necessarily turns on its own facts and I bear steadily in mind the observations of Heydon JA (as his Honour then was) in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705:
“85. In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an indentified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantial based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. …”
Here the factors that lead me to this conclusion are:
a)On any view, the report of Dr Vowels was very much later than the events the subject of particular concern. Unlike SCAR, Dr Vowels only saw the applicant over six months after his IMR hearing. Unlike SCAR, there is intervening medical evidence such as the report in February 2012 which shows the applicant to have been in reasonable health. I approach Dr Vowels' conclusions, which are of course critical to her findings as to how the applicant was in December 2011, with considerable caution;
b)Dr Vowels has plainly taken the applicant's evidence as a datum, when it is not established;
c)The tests upon which Dr Vowels relied, such as the Wechsler test, must also be approached with considerable caution. There is, in my view, force in the criticisms advanced by the first respondent's counsel as set out above;
d)An examination of the transcript of the hearing shows, unlike the situation in SCAR, that the applicant did indeed refer to precisely the matters raised by Dr Vowels. The Reviewer was well aware that the applicant was asserting that he had difficulties in recollection and organising his thoughts, and the remarks in paragraph 69 of the Reviewer's decision as set out earlier suggest a sympathetic response to these issues;
e)Unlike SCAR, the applicant was represented throughout the proceeding and his representative at no point sought to introduce any evidence as to his mental state, or otherwise seek an adjournment to do so;
f)The apparent failure of Dr Vowels to pay attention to the CAT scan of the applicant's head, while certainly not in any sense determinative of the value to be ascribed to her report, is a matter of note.
In all these circumstances, in my view, the report of Dr Vowels should not be admitted.
Conclusion
Both parties implicitly proceeded on the footing that if Dr Vowels' report were not to be admitted, the application could not succeed. In the circumstances, that must be so as no other ground of review has been raised. Since I have not been prepared to admit the report of Dr Vowels, it follows that the application must be dismissed. I will so order.
It should be noted that in making these remarks, I fully accept that Dr Vowels is a person who has specialised knowledge based on her training, study or experience to whom the opinion rule does not apply (s.79 of the Evidence Act 1995). Given that she is a specialist practitioner in a paramedical occupation, this qualification does not require a great deal of explicit articulation (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37]).
I also accept that Dr Vowels' report generally meets the requirements set out by Heydon JA in Makita. Nonetheless, for the reasons I have set out more explicitly, I do not think her report should be received into evidence.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 12 September 2012
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