PKVC and Minister for Home Affairs (Citizenship)
[2018] AATA 4045
•25 October 2018
PKVC and Minister for Home Affairs (Citizenship) [2018] AATA 4045 (25 October 2018)
Division:GENERAL DIVISION
File Number: 2018/3286
Re:PKVC
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Rayment QC
Date:25 October 2018
Place:Sydney
Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that the applicant attend an appointment with a clinical psychologist arranged by the respondent on one or other of the dates suggested by the respondent in paragraph 16 of his submissions dated 8 October 2018, and that the applicant through her solicitors forthwith, indicate to the respondent which of those dates is suitable.
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Deputy President Rayment QC
CATCHWORDS
PRACTICE AND PROCEDURE – Directions – whether Tribunal has power to direct applicant to attend a medical examination – general power sourced from s 33 – whether Tribunal should exercise discretion to make Direction – evidence from clinical psychologist necessary to oppose Applicant’s case – Directions made for Applicant to attend a medical examination
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 33(1), 33(1A), 33(2A)
REASONS FOR DECISION
Deputy President Rayment QC
25 October 2018
The respondent seeks from the Tribunal a direction that the applicant attend a medical examination with a specialist in clinical psychology who would be retained and paid by the respondent. The reviewable decision was made without the respondent obtaining or seeking to obtain such a report, and was made, notwithstanding that the applicant had provided the report of a consultant psychiatrist which supported the submissions made by the applicant at the time of the reviewable decision.
The review before the Tribunal is a merits review and neither party will be limited in the evidence placed before the Tribunal by the course the matter took at the time of the reviewable decision.
The applicant’s submissions do not include any submission that the Tribunal lacks power to make such a direction as the respondent seeks. In my opinion the powers of the Tribunal do extend, in an appropriate case, to the making of such a direction. The general power to make directions contained in s 33(1A) of the Administrative Appeals Tribunal Act 1975, the power to inform itself in such manner as it thinks fit conferred by s 33(1)(c) of the Act and, perhaps also, the power to require a party to provide further information in relation to the proceeding (s 33(2A)) confer such power in my opinion.
The question remaining is whether such power ought to be exercised as a matter of discretion.
The power ought to be exercised in the present case in order to permit the respondent to call evidence before the Tribunal in opposition to the applicant’s case. Directions have not yet been made for the filing of evidence on either side, but the respondent reasonably apprehends that evidence will be called by the applicant to support her case, including as to the matters which the applicant asserted before the decision-maker based upon the evidence of her consultant psychiatrist.
The applicant opposes the making of the direction on the primary basis that the applicant’s proposed evidence would suffice to enable the Tribunal to decide the review, and also on the basis that the proposed consultation with a clinical psychologist might exacerbate her psychiatric disorder though being stressful and drawn out, and further submits that the public purse might be adversely affected unless the clinical psychologist “speaks Arabic and has considerable experience with Middle-Eastern clients”.
The various submissions to which I have referred in the previous paragraph seem to me an insufficient basis on which to decline to make the order. An independently instructed clinical psychologist ought to be sufficiently sensitive to the applicant’s circumstances to avoid the exacerbation of her condition. I cannot be satisfied that the evidence of the applicant will suffice to enable the review to be determined until I have heard both sides, and I will not give or withhold directions on the basis of any presumed concern about the expenditure of public money for the purpose of qualifying an expert. The respondent has also indicated that a qualified Arabic interpreter will attend and assist at the appointment and meet the reasonable travel costs of the applicant to and from the appointment.
I therefore make the direction that the applicant attend an appointment with a clinical psychologist arranged by the respondent on one or other of the dates suggested by the respondent in paragraph 16 of his submissions dated 8 October 2018, and that the applicant through her solicitors forthwith, indicate to the respondent which of those dates is suitable.
I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC
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Associate
Dated: 25 October 2018
Date of hearing: 24 September 2018 Date final submissions received: 16 October 2018 Solicitors for the Applicant: Mr M Al Jabiri, International Migration Support Solicitors for the Respondent: Mr C Brinley, Clayton Utz
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