SZMSA v Minister for Immigration

[2009] FMCA 716

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSA v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 716

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether applicant fit to participate in Tribunal hearing – obligation of Tribunal to afford “meaningful” invitation – where Tribunal obtained report from a psychiatrist as to fitness of applicant to attend Tribunal hearing.

Migration Act 1958 (Cth), ss.414A, 422B, 425

Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Eastman v The Queen (2000) 203 CLR 1
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586
Muliyana v Minister for Immigration & Anor [2009] FMCA 691
NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Re Minister of Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Scar v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1481
Suh and Others v Minister for Immigration and Citizenship and Another (2009) 175 FCR 515
SZKPB v Minister for Immigration & Citizenship & Another [2009] FCA 147

Applicant: SZMSA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2264 of 2008

Judgment of: Barnes FM

Hearing date: 22 April 2009

Delivered at: Sydney

Delivered on: 12 August 2009

REPRESENTATION

Counsel for the Applicant: Mr D Ash

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2264 of 2008

SZMSA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal signed on 24 July 2008 and handed down on 5 August 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of Ukraine, arrived in Australia in April 2007 and applied for a protection visa in May 2007.  He claimed that he left Ukraine to escape what he described as “unbearable” anti-Semitism that had increased significantly in the year before his departure.  He claimed that his ethnic dignity as a Jew had been continuously insulted, that on three occasions a large red swastika had been painted on the door of his unit and that on many occasions he was called "kike face".  He claimed that on 5 August 2006 he was assaulted by a group of neo-Nazis after leaving a service at his synagogue.  He claimed that he was hit on the back of the head, thrown to the ground and kicked and that as a result he sustained traumatic brain injury as well as minor injuries to his body.  The applicant claimed that he was assaulted and beaten again on the Jewish holiday of Purim on 4 March 2007 while wearing a kippah (skullcap).  He claimed that a group of young men approached him, yelled "Heil Hitler" and punched and kicked him.  The applicant claimed that he lodged complaints about each of these assaults with the police, but that they had not been able to solve either case. 

3. The applicant claimed to fear that if he returned to Ukraine the persecution would continue and that he would be subject to physical and moral abuse.  He also claimed that after the traumatic brain injury he had developed chronic anxiety and severe panic attacks and that he was not able to sleep and work normally or fulfil his professional duties as a specialist medical practitioner.  The applicant claimed that anti-Semitism was increasing in Ukraine.  He provided documents in support of his claim.  He claimed that the authorities could not protect Jews effectively and that when anti-Semitic incidents happened the local authorities usually announced an investigation into what they described as "hooliganism", instead of possible anti-Semitic hate crime and that this covered up the extent of such anti-Semitic activities.  He claimed that Ukrainian media sources also frequently ignored anti-Semitic attacks and that Ukraine had a corrupt and dysfunctional criminal justice system.  The applicant also claimed that while his father was Jewish, his mother was Ukrainian and that Israeli authorities did not recognise his Jewishness.

4. The application was refused by a delegate of the first respondent who concluded that the applicant had access to effective state protection within Ukraine and that he did not face a real chance of persecution.

5. The applicant sought review by the Tribunal.  His adviser made further claims about anti-Semitism in Ukraine and the ability and willingness of the police and the authorities to provide protection.  Additional documentary evidence was provided about the situation in Ukraine and also copies and translations of an extract from an inpatient medical history for the applicant from Kiev City Hospital for the period from 5 August 2006 to 20 August 2006, a medical certificate in relation to injuries suffered by the applicant on 4 March 2007 and police certificates in relation to "hooligan behaviour" of 5 August 2006 and a "hooligan attack" of 4 March 2007.  The certificates advised that administrative charges were pressed against two named citizens for the first attack and that the persons responsible for the second attack had not been found. 

The hearing invitation and psychiatric reports in relation to the applicant

1. On 10 August 2007 the Tribunal wrote to the applicant inviting him to attend a Tribunal hearing on 17 September 2007.  His migration agent advised that the applicant would not be able to participate in the Tribunal hearing on that date due to his "poor health condition".  He was said to have developed “Post-Traumatic Stress Disorder and Major Depression” according to the opinion of Dr George Jacobs, a consultant psychiatrist.  A copy of a report by Dr Jacobs to the applicant’s general practitioner dated 2 September 2007 was provided to the Tribunal.  In that report Dr Jacobs described the applicant’s claims about mistreatment in Ukraine and his symptoms.  Dr Jacobs stated that the applicant suffered from major depression with some psychotic features and Post-Traumatic Stress Disorder and that he had “commenced him on” anti-depressant medication (Efexor XR 75 mg for 4 days to increase to 150 mg) and would review him in five weeks.  The report continued:

   I strongly recommend that [the applicant] not participate in a hearing of the refugee review tribunal at this time as he is medically unfit to concentrate and prepare for such a hearing, as he is significantly depressed.  I believe that he may be ready to participate in about 2 months but that depends on his response to medication.  As I mentioned, I will review him in about 5 weeks.  

2. The Tribunal agreed to postpone the hearing to a date to be rescheduled.  On 28 September 2007 the Tribunal asked Health Services Australia (HSA) to arrange an urgent appointment for the applicant with a psychiatrist to assess his fitness to attend a hearing.  On 2 October 2007 a Tribunal officer wrote to the applicant's migration agent requesting that the applicant attend an appointment on 10 October 2007 that the Tribunal had organised with Dr Sam Rogers (sic), described as “a psychiatrist employed by the Commonwealth Government”.  It is apparent that this is intended to be a reference to Dr Roberts.   

3. On 2 October 2007 the Tribunal wrote to Dr Roberts, advising that it had requested that the applicant undergo a health assessment with him:

   ·     To assess whether [the applicant] can attend the hearing with the Tribunal; and

   ·     If he is unable to attend for health reasons, when would he be able to attend?

4. The Tribunal enclosed as background information a document about Tribunal hearings and explained that the scheduled hearing had been postponed on the applicant’s request. 

5. Dr Roberts provided a detailed medico-legal report in relation to the applicant dated 15 October 2007 in which he stated that he had been asked to assess both whether the applicant was fit to attend a Tribunal hearing and, if not, when he would be able to attend. 

6. Dr Roberts reported that the applicant’s account of his history “was limited by diminished spontaneity of conversation”.  He recorded that the applicant had not seen a psychiatrist before seeing Dr Jacobs (in September 2007) and that he had been on prescribed antidepressant medication for approximately three weeks. The applicant had not attended a scheduled appointment with Dr Jacobs in early October 2007 because he was feeling so awful he did not go.  He had rebooked the appointment.  The report recorded that the applicant’s response when asked about his understanding of the Tribunal process was “I don’t care” and that he said he had received, but not read, the Tribunal brochure about a Tribunal hearing. 

7. Dr Roberts diagnosed that the applicant was suffering from Post-Traumatic Stress Disorder and a Major Depressive Episode.  He stated that the applicant had presented with features consistent with a Major Depressive Episode on a background of Post Traumatic Stress Disorder “precipitated by two vicious anti-Semitic assaults committed against him during the past fifteen months”. 

8. The report recorded that while the applicant had been in receipt of psychiatric treatment, “it was apparent at the time of the assessment that he had not yet responded to that treatment and the impact of his psychiatric condition was such that he had failed to attend the follow up consultation with his psychiatrist”.  Dr Roberts observed that “[t]he most prominent features of [the applicant's] depressive condition, aside from sleep disturbance and psychomotor retardation, included profound apathy with respect to the consequences of his current circumstances, in particular, an apparent indifference as to the outcome of the Tribunal Hearing and the fact that his wife and son remain in the Ukraine whilst he is in Australia”. 

9. Under the heading “Recommendations” Dr Roberts stated that the applicant was:

   … currently unfit to participate in a Tribunal Hearing.  Based on his presentation and having regard for the severity of his psychiatric condition and the profound apathy with respect to the consequences of the Tribunal Hearing, it is expected that [his] ability to represent himself at a Hearing would be substantially affected by his indifferent attitude.  Given his presentation, it is expected that [his] ability to provide such evidence as would support his case, would be impaired.  As noted previously, his indifference to the process conferred by his depressive condition, is such that he has not sought information regarding the Tribunal, its role or the nature of the Hearing in which he is to participate.  His lack of insight as to the importance of the upcoming Hearing is driven by his psychiatric condition.

10. Dr Roberts then addressed the applicant's prognosis, referring to the fact that he had been on anti-depressant treatment for a period of three weeks (150 mg Efexor XR daily) as well as blood pressure and cardiac medication, but had not yet been reviewed by his treating psychiatrist.  He continued:

    If a patient is on an antidepressant which suits the patient both in terms of tolerability and effectiveness, it is expected that remission of symptoms would occur within a period of six to twelve weeks.  If [the applicant] is required to change medication or increase the dose, a more protracted course is expected.  Therefore it is premature to attempt to predict when [the applicant] will become sufficiently well as to be considered fit to participate in a Hearing.  A review will be necessary to reassess fitness after a further period of treatment.

11. Dr Roberts also suggested that given the severity of the applicant’s condition and the marked deviation from his premorbid level of functioning, an organic condition precipitating or aggravating his presentation should be excluded by investigation.  He stated that he would be pleased to reassess the applicant in two or three months time and provide an updated report, to answer any questions or to discuss the contents of the report.

12. It appears that the Tribunal sent the applicant’s migration agent copies of the reports of Dr Jacobs and Dr Roberts in response to a request under the Freedom of Information Act1982 (Cth) made on 29 October 2007.

13. On 12 November 2007 the Tribunal wrote to the applicant’s migration agent referring to the fact that on 10 September 2007 the Tribunal had agreed to the earlier request to reschedule the hearing and stating that “[a] new hearing date has now been rescheduled”.  The Tribunal invited the applicant to attend a hearing on 21 April 2008. 

14. On 2 April 2008 the Tribunal received country information from the applicant’s migration agent and a response to hearing invitation in which it was indicated that the applicant wished to attend the Tribunal hearing. 

15. On 18 April 2008 the Tribunal wrote to the applicant’s agent and advised that the presiding member was unable to conduct the hearing on 21 April 2008 and that it would be adjourned to a date to be advised.  On 14 May 2008 the Tribunal advised that the hearing would be on 12 June 2008.  A further response to hearing invitation form was returned to the Tribunal on 19 May 2008 indicating that the applicant wished to attend the Tribunal hearing. 

16. However on 29 May 2008 the Tribunal advised that the Tribunal member was no longer available to finish the case and that a different Tribunal member would finish the review.  In another letter of 29 May 2008 the Tribunal further postponed the Tribunal hearing until 10 July 2008 as the member was unable to conduct the hearing on 12 June 2008.  The applicant’s migration agent returned a further response to hearing invitation form dated 16 June 2008 indicating that the applicant wished to attend the hearing on 10 July 2008. In addition, on 9 July 2008 the migration agent telephoned the Tribunal to confirm that the applicant would be attending the hearing.  

17. The hearing was conducted on 10 July 2008.  A transcript of the hearing is in evidence before the Court.

18. On the day of the hearing, the Tribunal received a letter from the applicant's migration agent dated 10 July 2008 referring to the fact that the applicant had consulted two psychiatrists over the last eight months had been diagnosed with Post Traumatic Stress Disorder and Depression by his treating psychiatrist and had been prescribed anti-depressants.  The letter recorded that the applicant saw Dr Roberts on 10 October 2007, that Dr Roberts had confirmed the diagnosis and had stated that the applicant “was exposed to traumatic events involving threatened death and during that event he experienced intense fear and helplessness.  He expected to die”.  The letter pointed out that Dr Roberts was of the opinion that “the most prominent features of [the applicant's] depressive condition was an apparent indifference as to the outcome of the Tribunal Hearing”.  The letter also referred to country information about anti-Semitic publications and violence in Ukraine. 

The Tribunal decision

1. In its reasons for decision the Tribunal outlined the written claims and material provided by the applicant and described the circumstances in which the original Tribunal hearing had been postponed.  It referred to the report of Dr Jacobs and aspects of Dr Roberts’ report as follows: 

   Dr Jacobs concludes that the Applicant was suffering ‘Major Depression’ and ‘Post-Traumatic Stress Disorder’ for which he had prescribed anti depressant medication.  He believed the Applicant was not fit to prepare for or participate in a Tribunal hearing at the time of the consultation, but that he should be ready to do so in about two months’ time, depending on his response to the medication.

   On 2 October 2007 the Tribunal wrote to the Applicant to advise him that it had arranged an appointment with another psychiatrist, Dr Samson Roberts.

   On 1 November 2007 the Tribunal received a ‘medico-legal report’ on the Applicant from Dr Roberts, based on a consultation on 10 October 2007.  Once more, the Applicant recounted his history of harm at the hands of anti-Semitic elements in the Ukraine and the severe psychological symptoms which this had produced.

   In the report Dr Roberts diagnoses the Applicant as suffering from ‘Post-Traumatic Stress Disorder’ and ‘Major Depressive Episode.’  He notes that the fact that the Applicant was sufficiently motivated and organised to arrange attendance at the conference in Australia indicates that the development of the depressive illness was more recent and the Post-Traumatic Stress Disorder did not impair him in this regard.  He had been receiving psychiatric treatment (i.e. from Dr Jacobs) but had not yet responded to that treatment and had failed to attend a follow-up consultation with Dr Jacobs.

   Dr Roberts gave as his opinion that the Applicant exhibited profound apathy with respect to his current circumstances, in particular an apparent indifference as to the outcome of the Tribunal hearing and the fact that his wife and son remain in Ukraine.  He assessed the Applicant as unfit to participate in a Tribunal hearing as his ability to represent himself and provide evidence in support of his case would be impaired.  If a patient remained on a suitable dosage of antidepressant medication, remission of symptoms could be expected within a period of six to twelve weeks.  However, if the Applicant were to be required to change his medication or increase the dose, a more protracted course of recovery could be expected and it would be premature to predict when he would become fit to participate in a hearing.  A review would be necessary after a further period of treatment.  Investigations to exclude organic causes of his depressive condition should be undertaken.  He suggested that he would be happy to see the Applicant again in two to three months’ time. 

2. The Tribunal recorded that it had subsequently received a response to hearing invitation indicating that the applicant wished to attend the hearing and that at the hearing "the Applicant confirmed that he believed his health was sufficient to allow him to participate effectively in the hearing".  It described the applicant’s account of his history of physical and psychological symptoms, the treatment he had sought for cardiac problems following the first assault, his claims that he had started to experience a range of psychological problems after the second assault, that he had consulted a psychiatrist colleague in Ukraine and had been referred to a psychiatrist in Australia whom he continued to see.  The Tribunal recorded that the applicant said that he had been prescribed anti-depressants and that he was continuing with medication for his cardiac condition.  It recorded that the applicant had described his general health over recent months as “bad” and stated that while he was well sometimes, at other times he experienced anxiety, fear, nightmares and an aversion to leaving the house. 

3. The Tribunal also recorded that at the end of the hearing the applicant “confirmed that [he] believed he had been able to participate effectively in the hearing and had not been hindered by any psychological problem”, that he felt very tired and this made him depressed, but that he felt it was better for him to have a decision in his case as the lack of certainty was also making him depressed. 

1. The Tribunal addressed what it referred to as “a long history of insults and minor property damage” that the applicant claimed he experienced based on his identification as a Jew.  The Tribunal was prepared to accept that the applicant had experienced this harm, but was not satisfied that in his case it constituted serious harm amounting to persecution.  It had regard to the fact that an objective view of the applicant’s life and career as a successful medical specialist did not suggest that these incidents had held him back in any sense from achieving success in his personal and professional life and observed that he had acknowledged that he and other Jews in Ukraine had learned to tolerate this level of abuse and succeed in spite of it.  The Tribunal was not satisfied that this kind of abusive behaviour or the publication of anti-Semitic material and attacks on Jewish communal property “can have amounted to more than an annoyance, even if at times a severe one”. 

2. The Tribunal stated that it had “some concerns” in relation to the applicant's claims about physical assaults in 2006 and 2007, having regard to the fact that neither of these incidents was reported in the mainstream media in Ukraine.  The Tribunal accepted that there might well be reasons for this, including a disinterest by the media in investigating anti-Semitic incidents and the fact that the assaults may not have been regarded as sufficiently serious as to be newsworthy.  However it also had regard to the fact that it was apparent that neither incident was reported by any of the Jewish sources that focused on the treatment of Jews in the Ukraine and dealt with incidents of vandalism and anti-Semitic literature in which there was said to be reference “in a few cases (although dating back some ten years)” to assaults on individuals.  The Tribunal found that given the applicant's position as a successful medical specialist who was a regular worshiper in his Synagogue: 

   … it [is] not clear why such sources would not have reported serious attacks on him carried out in the near vicinity of the Synagogue and clearly linked to the fact that he was identifiable as a Jew.  The fact that these attacks were discussed within his Synagogue makes it even harder to understand why there would be no reporting.

3. The Tribunal stated that "[a]gainst this" were the hospital and medical reports and police certificates submitted by the applicant relating to the two incidents, which the Tribunal found appeared authentic.  The Tribunal was prepared to accept these documents as substantiation for the applicant's claim and hence was prepared to give the applicant the benefit of the doubt by accepting that he was attacked by neo-Nazi groups in August 2006 and March 2007, that on both occasions he was readily identified as a Jew and, in the absence of any evidence to the contrary, that the attacks were anti-Semitic in character, motivated by hatred of the applicant's Jewish religion.  The Tribunal accepted that the applicant suffered serious physical injuries in both attacks and, “[h]aving considered the reports prepared by two psychiatrists”, that the applicant “now” suffered from depression and post-traumatic stress syndrome and that these conditions were triggered by the two attacks, even if they may not have emerged fully until after his arrival in Australia. 

4. The Tribunal considered it apparent from country information before it that anti-Semitic views continued within the Ukrainian community at some level and that at extremes they were expressed in actions that included (among other things) physical assaults on individual Jews, apparently by groups including neo-Nazis and skinheads.  It also accepted that there was some evidence that, at a lower level, State officials at times exhibited discriminatory and abusive attitudes towards Jews and that anti-Semitism was mirrored in xenophobic and racist attitudes displayed towards foreigners. 

5. The Tribunal also accepted, based on material provided by the applicant, that there may have been some increase in the frequency of anti-Semitic incidents.  However, even accepting this, the Tribunal was not satisfied that the information before it indicated that violent attacks on Jewish individuals, such as that suffered by the applicant, were common in Ukraine.  Based on the absence of reports of regular and frequent violence of this nature, the Tribunal was not satisfied that physical violence against Jews in Ukraine was more than an “isolated or spasmodic problem” and while it accepted that the applicant feared further such harm, it was not satisfied that there was a real chance that the applicant would suffer serious harm amounting to persecution in the future because of his Jewish religion.

6. The Tribunal continued that, although not strictly necessary to do so, it had considered the applicant's claim that the authorities either could not or would not protect him from the harm he feared.  It was not satisfied that this was so.  The Tribunal referred to the fact that the applicant's evidence was that two of the perpetrators of the first attack had been charged, taken before a court and subjected to a fine.  It found that it was not possible to place significant weight on the applicant's assertion that these actions were inadequate and the perpetrators were let off too lightly without further information.  It also had regard to the fact that while the police had been unable to find the perpetrators of the second attack, the applicant had been able to report the matter and at least some form of investigation had occurred.  Taken together, the Tribunal was not satisfied that this information demonstrated that the police ignored the applicant or failed to make efforts to investigate his complaints and bring his attackers to justice.  It also referred to independent country information in relation to government condemnation of anti-Semitic attacks and action taken to suppress the publication of anti-Semitic literature.  The Tribunal was not satisfied that there was anything in the independent country information to suggest that anti-Semitism was officially condoned or that efforts were not being made to prevent its expression. 

7. The Tribunal concluded that on the basis of all the information before it it was not satisfied that there was a real chance that the applicant would suffer serious harm amounting to persecution because of his Jewish religion in the Ukraine in the future and that no other basis for a Convention-related claim was apparent on the information before it. 

8. At the end of its decision the Tribunal referred to what it described as "Hearing issues".  The Tribunal stated:

   Having had the opportunity to observe the Applicant give his oral evidence I am satisfied that he was able to participate effectively in the hearing and that he was not prevented by any psychological difficulties he may experience from articulating his claims.  His answers to questions were responsive and detailed and he was able to engage in extended discussion on a range of issues.  He was accompanied by his adviser who made a number of useful interventions.  While he noted, at the end of the hearing, that he was feeling tired he also acknowledged that he had not encountered any particular difficulties in giving his evidence.

9. The Tribunal affirmed the decision not to grant the applicant a protection visa. 

This application

1. The applicant sought review by application filed in this court on 1 September 2008.  He relies on an amended application filed on 10 December 2008.  There is one ground in the amended application.  It is as follows:

   After the Tribunal

   (a) considered and apparently accepted a finding in the report of a Consultant Forensic Psychiatrist commissioned by the Tribunal itself some months prior to the hearing (a finding to the effect that the applicant was then unfit to participate in a hearing); and

   (b) asking itself (as a precondition to the exercise of its jurisdiction) to the effect "Is the applicant able to participate properly in the hearing?",

   the Tribunal considered two things, being

   (c) the interests of all parties that the process not drag on; and

   (d) statement(s) to the effect that he was able to participate properly,

   a consideration which was in the circumstances an error which went to jurisdiction: 

   (e) the two things were each and both irrelevant to the question;

   (f) the Tribunal failed to consider matters which were relevant to the question;

   (g) the Tribunal misdirected itself in law; and

   (h) although not acting in bad faith, the Tribunal nonetheless acted in a way which was not fair and just.

2. In written submissions counsel for the applicant contended that there was a want of procedural fairness on the basis that the applicant was not in a position to determine whether he was fit to participate, that the Tribunal did not clearly put the report of Dr Roberts to him in the hearing and either did not appear to take the opinion into account or was under a misapprehension that Dr Roberts’ view of the applicant’s fitness related only to the time of the report.  It was submitted that while the Tribunal was not bound to accept a particular piece of expert evidence (such as Dr Roberts’ report) in this case that was the only material on which a rational assessment of his ability to participate could be made. 

3. It was also contended that fairness dictated that in the circumstances of this case, particularly given the postponements of the hearing at the request of the Tribunal, the Tribunal should either have taken Dr Roberts’ opinion into account or, possibly, made it clear to the applicant that it was not going to do so. It was contended that the consideration of the applicant’s statements to the effect that he was able to participate and the interests of all parties that the process not drag on was consideration of irrelevancies. The proper question was said to be whether the hearing should have commenced, in the light of Dr Roberts’ opinion and notwithstanding the delay. 

4. While these arguments were put in terms of procedural fairness (see Re Minister of Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ), in oral submissions it was clarified that s.425(1) of the Migration Act 1958 (Cth) was the section in Division 4 of Part 7 of the Act on which the applicant relied in contending that there was a lack of procedural fairness. Reference was made to s.422B of the Act, which not only provides in sub-s.(1) that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with, but also provides in sub-s.(3) that:

   In applying this Division, the Tribunal must act in a way that is fair and just.

5. It was submitted that in this case there was an absence of a fair process. It was pointed out that notwithstanding the need to recognise a degree of flexibility in the role of the Tribunal as an administrative decision-maker (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259) implicit in the s.425 obligation was the need for the Tribunal to assess whether the applicant was capable of being invited to appear to give evidence and to present arguments. Counsel for the applicant suggested that the history of the applicant's request for a postponement, the medical report of Dr Jacobs and the fact that the Tribunal had sought a medical assessment from Health Services Australia as to the applicant's fitness to attend a hearing indicated that the Tribunal took seriously the applicant's own assertions and medical record. It was said to be significant that Dr Roberts did not simply consider and state that the applicant was currently unfit for a hearing, but, as requested by the Tribunal, also addressed the question of when he would be able to attend a Tribunal hearing.

6. The applicant acknowledged that after the Tribunal sent a further hearing invitation (notwithstanding that there had been no review or further medical assessment), it received a completed response to hearing invitation form in which the box "Yes" was marked in response to the question, "Do you want to come to a hearing?" and that on its face this appeared to be an unqualified acceptance that the applicant would attend the hearing to which he had been invited.  It was also acknowledged that thereafter, at least until 10 July 2008, neither the applicant nor his migration agent had indicated to the Tribunal that the hearing could not proceed because of Dr Roberts’ medical report.  However it was submitted that the migration agent’s letter to the Tribunal of 10 July 2008, did raise the question of the report, referring to Dr Roberts' confirmation of a diagnosis of post-traumatic stress disorder and to the fact that a prominent feature of the applicant's depressive condition was an “apparent indifference as to the outcome of the Tribunal Hearing”. 

7. Counsel for the applicant submitted that regard should also be had to the conduct of the Tribunal hearing.  When the hearing commenced, the Tribunal explained the procedure and introductory matters.  However it was pointed out that it was not until page six of the transcript that the Tribunal raised the issue of whether the applicant was fit to appear at the hearing.  At that point the Tribunal discussed with the applicant the emergence of psychological problems, the circumstances in which he was referred to and consulted Dr Jacobs and Dr Jacobs’ diagnosis. The applicant told the Tribunal that he saw Dr Jacobs every three weeks.  The Tribunal asked (transcript page 9):

   Right.  Yes.  Would you have any objection to the tribunal talking to Dr Jacobs and asking him about your condition?

   The applicant responded:

   No objections, no problems. 

8. The Tribunal advised that if they were to do so they would probably need some written authorisation and the applicant agreed that would not be a problem.  However the Tribunal did not contact Dr Jacobs. 

9. The Tribunal also obtained confirmation from the applicant that he had seen Dr Roberts once and had not seen him again (transcript page 9).  The applicant confirmed that he had been prescribed an anti-depressant (Efexor) and that he was continuing to take them.  He volunteered that he had started on an initial dosage of 75 milligrams and that that had been increased to 150 milligrams.  He stated, in response to a question, that his health in the last few months in Australia had been “Bad.  It was bad” (transcript page 10) in that he was suffering from anxiety, that he did not want to go out or leave the house and was experiencing fear, headaches, not sleeping well and having nightmares, although he also told the Tribunal that when he started taking a higher dose of the antidepressant medication (transcript page 10):

   … I started sleeping a little bit better at night.  You know, for certain periods of time I feel pretty much okay.  But then there is like an explosion again, and I feel depressed, very depressed again, and I don’t want to go to synagogue or to go out, I don’t want anything.

10. The applicant told the Tribunal that he was not working and stayed at an acquaintance's place and relied on money from his wife in Ukraine. 

11. Counsel for the applicant pointed out that the issue of the applicant’s fitness to participate in the hearing was not identified by the Tribunal until well into the hearing, when the Tribunal stated (transcript page 13):

    What I have to consider, of course, [applicant], is whether or not you are able to participate properly in this hearing.

12. It was submitted that while at this point the Tribunal properly had regard to the implicit purpose and preconditions to s.425 in indicating that the issue was whether the applicant was able to participate properly, in the exchange that followed neither the Tribunal member nor the interpreter accurately and fairly put to the applicant what Dr Roberts had determined in 2007. This submission was made on the basis that Dr Roberts had found not only that the applicant was not currently fit, but also that it was premature to predict when he would become sufficiently well to be considered fit to participate in a hearing and that a review would be necessary to reassess his fitness to participate in a hearing after a further period of treatment.

13. The exchange in issue is as follows. (transcript page 13):

    INTERPRETER (APPLICANT):  You know, I came here, that's why I think I can. 

    TRIBUNAL:  Okay.  I mean, obviously the hearing has been postponed once because of the psychological problems you were experiencing - that was last year - and it's been postponed a couple more - three more times for other reasons.  Of course, this has been going on now for about a year.  Now, the report that was provided by Dr Roberts seemed to indicate that you weren't in a fit condition to participate in a hearing. 

    INTERPRETER:  That you are in a fit - - -

    TRIBUNAL:  Were not, I'm sorry. 

    INTERPRETER:  Were not.  Okay. 

    TRIBUNAL:  But, of course, it’s, I think, in everybody’s interests that this process not drag on for very long.  That was why I thought it was best to continue on with the hearing today.  Now, I understand that you say that you’re able to participate in the hearing properly, and I’m very happy to continue on that basis.

    INTERPRETER (APPLICANT):  Okay.  Yeah.

    TRIBUNAL:  But it’s very important, [applicant], that as we proceed if you are encountering any difficulty at any point that you let me know straightaway and we’ll take a break.  I mean, if it’s a serious problem then we’ll adjourn the hearing and come back on another day.  We’ll take a break anyway in about half an hour, but if you do need at any time a break, please say so straightaway.  Is that okay with you?

    INTERPRETER (APPLICANT):  Okay, yeah.

14. Counsel for the applicant submitted that when the issue of fitness was raised questions miscarried in a material manner in that the Tribunal put the reference to a lack of fitness in the past tense and referred to the report in what was said to be a substantially incomplete manner.  While the interpreter checked whether the Tribunal was referring to the present tense or the past tense in discussing the report and corrected this to accord with what the Tribunal had stated, it was submitted that there was a qualification in the report of Dr Roberts about the necessity for a review to reassess fitness after a further period of treatment that did not form part of the information put to the applicant and that was not otherwise addressed by the Tribunal. 

15. It was accepted that, as Branson J stated in NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [69], the applicant bore the onus of establishing that he was unfit to take part in the Tribunal's hearing, but contended that this onus had been met. It was submitted that the material before the Court, in particular the report of Dr Roberts, showed not only the condition of the applicant at the date of the medical examination, but also that that condition was continuing until there was a review to reassess the fitness of the applicant. It was contended that Dr Roberts’ report was clear evidence of the applicant's unfitness to attend the hearing. On this basis it was submitted that there was no need for further evidence to be filed by the applicant in these proceedings to establish a lack of fitness at the time of the Tribunal hearing. It was however conceded that if the Court was not satisfied that the applicant was unfit to participate in the hearing the applicant probably could not succeed in these proceedings.

16. It was contended that the only benchmark relied on by the Tribunal as to the applicant’s fitness to participate in the hearing was its subjective questioning of the applicant himself, notwithstanding that Dr Roberts had indicated (as stressed in the agent’s letter of 10 July 2008) that a prominent feature of the applicant's depressive condition was an apparent indifference as to the outcome of the Tribunal hearing. It was submitted that the applicant could not be said to be in a position to determine for himself the answer to the question of whether he was fit to participate in the hearing in the circumstances of this case. On that basis it was submitted that, contrary to the purpose of s.425, the precondition of the Tribunal determining whether an applicant had the ability to give arguments and evidence could not have been engaged in properly by the Tribunal.

1. Counsel for the applicant reiterated the submission that while the Tribunal was aware of Dr Roberts' report, it did not clearly put to the applicant the part of the report that referred to the time of the report and also to the need to assess future fitness.  To the extent that the Tribunal put the report at all, it was said to have done so in a positively misleading manner.  Indeed it was submitted that it could be said that the Tribunal neither put Dr Roberts’ opinion to the applicant, nor appeared to take it into account.  Rather, the Tribunal was said to have considered only the interests of the parties that the process not drag on and the statement by the applicant to the effect that he was able to participate properly.  This was said to have been done on the basis of consideration of an irrelevancy and a mistaken apprehension conveyed to the applicant that Dr Roberts' view as to fitness was only a view as to fitness at or around the time of his report, when this was said not to be the case. 

2. The applicant also submitted that the proper starting point for the Tribunal should have been Dr Roberts' report and a consideration of that report as the only cogent material upon which the Tribunal member was in a position to make an assessment of fitness.  It was acknowledged that the Tribunal was not bound to accept a particular piece of expert evidence in determining the merits of the matter before it, but contended that the only material before the Tribunal on which a rational assessment of the applicant's ability to participate could be made was the opinion of Dr Roberts. 

3. Counsel for the applicant submitted that in the circumstances of the case, in particular where the hearing had several times been postponed at the request of the Tribunal, fairness dictated that the Tribunal either take the opinion of Dr Roberts into account or, at least, make it clear to the applicant that it was not going to take the opinion into account.  However it was said that the Tribunal had done neither of those things, but instead had proceeded to determine for itself the one thing that on a rational assessment of the only material before it, it was unable to do, by questioning the applicant as to whether he was fit and by proceeding on an erroneous understanding of Dr Roberts’ report. 

4. Counsel for the applicant further submitted that insofar as the Tribunal did take the report of Dr Roberts into account, it had an erroneous understanding of the report and that if one was obliged to take a matter into account and did so erroneously, that was a reviewable error. 

5. The parties were in agreement that the question of whether the applicant was unfit to attend the hearing was a matter for the Court to decide in these proceedings and that the applicant bore the onus of satisfying the Court in this respect.  Counsel for the first respondent accepted that the applicant could rely on the evidence in the Court Book, including Dr Roberts' report, in seeking to satisfy the Court in this respect, but submitted that Dr Roberts' report did not in terms state that the applicant would be unfit in July 2008 to attend a hearing. Rather Dr Roberts stated that the applicant was currently (that is, as at 15 October 2007) unfit to participate in a Tribunal hearing, that he had been on anti-depressive treatment for three weeks and:  

   If a patient is on an antidepressant which suits the patient both in terms of tolerability and effectiveness, it is expected that remission of symptoms would occur within a period of six to twelve weeks.  If [the applicant] is required to change medication or increase the dose, a more protracted course is expected.  Therefore it is premature to attempt to predict when [the applicant] will become sufficiently well as to be considered fit to participate in a Hearing. 

6. The first respondent accepted that the Tribunal was obliged to take into account the report of Dr Roberts, but contended that it did so.  Counsel for the first respondent submitted that Dr Roberts’ report did not amount to a statement or opinion that the applicant was or would be unfit to participate in a hearing held in July 2008.  While it was noted that Dr Roberts had offered to reassess the applicant in two or three months time to provide an updated report, this was said to be consistent with the fact that the report did not in terms state that the applicant would be unfit in July 2008 and not inconsistent with the manner in which the Tribunal addressed the report in its reasons for decision.

7. It was also submitted that the Tribunal was entitled to consider the applicant's evidence that he felt able to participate in the hearing, but that it did not simply proceed on the basis of the applicant's own assessment that he was fit to attend the hearing.  In addition to Dr Roberts’ report and the applicant’s own views, the Tribunal was said to have relied on its observation of the applicant giving his oral evidence; its conclusion that his answers to questions were responsive and detailed and that he was able to engage in extended discussion on a number of issues; the fact that his adviser made a number of what were seen as useful interventions; and the fact that while the applicant noted at the end of the hearing that he was feeling tired, he also acknowledged he had not encountered any particular difficulties in giving his evidence.  On this basis the Tribunal had concluded in its reasons for decision that the applicant was able to participate effectively in the hearing and that he was not prevented by any psychological difficulties he may experience from articulating his claims. 

8. Counsel for the first respondent also referred to the fact that in NAMJ (at [68]) Branson J accepted that in making a judgment as to the fitness of the applicant to take part in the hearing the court should accord weight to the view taken by the Tribunal. In that case it had been argued that the Tribunal had failed to provide the applicant with a hearing at which he was fit to give evidence or to accord him procedural fairness, in rejecting expert evidence stating that he was unfit to give evidence at the hearing before the Tribunal, without seeking expert evidence to the contrary. The Tribunal had been satisfied that the applicant knew the purpose of the hearing and was able to give a comprehensive and lucid account of his claims. Branson J did not consider this assessment was rendered "improbable" by conclusions she had reached in relation to the expert evidence and went on to find (at [69]) that:

   Having regard particularly to the assessment of the applicant made by the Tribunal member, I am not satisfied that at the time of the Tribunal hearing the applicant lacked the capacity to understand the concerns relating to his claim to be entitled to a protection visa that the Tribunal raised with him, including the Tribunal's concern as to his credibility.

9. In NAMJ in addition to some medical evidence before the Tribunal, further evidence had been received by the Court from a clinical social worker and a general practitioner.  However in SZKPB v Minister for Immigration & Citizenship & Another [2009] FCA 147 Logan J referred with approval to NAMJ (at [19] – [21]) in circumstances where the appellants had introduced no evidence, lay or professional, in relation to the asserted incapacity of one of the appellants either before the Tribunal or in the proceedings before the Federal Magistrates Court or the Federal Court. The first respondent submitted that SZKPB evidenced the relevance of the Tribunal's own assessment of an applicant’s fitness in determining whether there was a breach of s.425 of the Act. Logan J observed that in SZKPB the Tribunal had made its own observation recorded in its reasons for decision.  Against that background, and having regard to NAMJ, no error was found in a decision of the Federal Magistrates Court that there was no breach of s.425. In this case it was submitted that on the evidence before it the Court should not be satisfied that the applicant was unfit to participate in the Tribunal hearing on 10 July 2008.

10. Insofar as there was any complaint made of procedural irregularity by the Tribunal at the hearing, counsel for the first respondent pointed out that procedural fairness of itself was excluded by s.422B(1) of the Act. Insofar as the applicant had referred to s.422B(3), it was submitted that if s.422B(3) had the effect that a hearing under s.425 must be fair and just, this raised a possible inconsistency with s.422B(1). It was acknowledged that this was a matter which had not been addressed by the courts at the time of the hearing (now see Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83). I note that this issue was not addressed in any detail in the applicant’s submissions. Counsel for the first respondent submitted generally that it could not be said that common law procedural fairness was imported back by s.422B(3) in the face of s.422B(1), but in any event even if s.422B(3) did have the effect of incorporating some notion of procedural fairness into the manner in which the Tribunal met its obligation to invite the applicant to a hearing, in this case unfairness was not established.

11. It was submitted that even if one took the most favourable view to the applicant of s.422B(3), there was no unfairness because what the Tribunal said about Dr Roberts’ report was an entirely reasonable summary of what the report in fact said. The Tribunal’s reference to Dr Roberts’ report as indicating (in the past tense) that the applicant was not in a fit condition to participate in a hearing was said to be correct because that was in fact what the report said (not that the applicant would be unfit to participate in a hearing in July 2008). The first respondent contended that any complaint about the way the hearing proceeded in this respect must fail because there was nothing amiss in the way the Tribunal spoke about the report to the applicant during the hearing, especially as the applicant had the report.

12. In response, counsel for the applicant acknowledged the impact of s.422B(1) but submitted generally that it seemed fairly clear on the face of s.422B(3) that s.425 should be applied in a way that was fair and just. It was pointed out that s.425 referred not simply to an invitation to the applicant to attend the hearing, but rather to an invitation to engage in positive acts of giving evidence and presenting arguments. It was submitted that if the Tribunal unwittingly and in good faith engaged in a course of conduct that resulted in a situation where the meaningful giving of evidence and presentation of arguments was not able to take place, that constituted a jurisdictional error.

13. Finally, counsel for the applicant pointed out that in contrast to the situation considered by Logan J in SZKPB, in this case there was evidence before the Tribunal in relation to the incapacity of the applicant that was said to be the Tribunal's own evidence, consisting of Dr Roberts' report. This was said to be cogent evidence that was substantively misunderstood and misapplied by the Tribunal so as to give rise to procedural unfairness within the statutory rubric of s.425.

Resolution

1. Section 425(1) of the Migration Act provides that:

   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

2. Section 422B of the Act relevantly is as follows:

   (1)     This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   …

   (3)     In applying this Division, the Tribunal must act in a way that is fair and just

3. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 the Full Court of the Federal Court held that the Tribunal did not comply with s.425 of the Act when it proceeded with a hearing in circumstances where the visa applicant was (as the primary judge found) not in a fit state to take part in the hearing by reason of his extreme reaction to news of the death of his father. In reaching that conclusion the Full Court observed at [33]:

   Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 at [31].

4. Their Honours went on to point out (at [37]) that the obligation on the Tribunal to provide a real and meaningful invitation existed whether or not the Tribunal was aware of the actual circumstances that would defeat that obligation.

5. The Federal Court (at [37]) referred to circumstances in which it had been held that the obligations imposed by s.425 of the Act had been breached, including where an applicant was unable to attend because of ill health, where a statement made by the Tribunal before a hearing had misled an applicant as to likely issues and where the fact or event resulting in unfairness was not realised by the Tribunal, for example where an applicant attended a hearing but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate.

6. In SCAR the primary judge had found, based on the material put before him, including a letter from a psychologist at the Woomera Detention Centre that recorded observations of the visa applicant on the day of the hearing and expressed the professional opinion that he was in no condition to handle the interview, that the applicant was not in a fit state to represent himself before the Tribunal.  It was also common ground that on the day of the hearing the visa applicant was so distressed because of his father’s death that he required medical treatment. 

7. The Full Court found in SCAR that:  “Given the findings of fact made by the primary judge that the [visa applicant] was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s 425 of the Act was not a meaningful one” (at [41]). This was so notwithstanding that through no fault of its own the Tribunal was not aware of this. The Full Court found that the Tribunal had failed to comply with s.425 of the Act and fell into jurisdictional error (at [41]). Such an approach is mirrored in the approach taken to the consequences of inadequate or inaccurate interpretation at a Tribunal hearing (see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 and Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230).

8. In NAMJ Branson J proceeded on the basis that the Tribunal would have acted outside its jurisdiction if the invitation it gave to the applicant under s.425 of the Act was not a “meaningful invitation” because the applicant was not fit to give evidence and to present argument to it (at [50]).  Branson J stated (at [49]) that as she understood the approach adopted in SCAR an additional, but related difficulty was that:

   … if an applicant is not fit to give evidence before the Tribunal, there can be no hearing before the Tribunal as required by the Act.  A purported hearing, held while the applicant was not fit, will be of no statutory significance no matter what procedural assistance or other consideration was afforded to the applicant during the course of the hearing - and no matter what the outcome of the hearing. No finding made as a consequence of the hearing will be of any significance.  

9. On this basis, if an applicant is not in fact in a fit state to give evidence and present arguments relating to the issues arising in relation to the decision under review at a Tribunal hearing he or she will not have been afforded the “meaningful invitation” to participate in the hearing required under s.425 and the Tribunal decision will be affected by jurisdictional error (NAMJ at [45]).

10. In NAMJ it was accepted that SCAR required the court to proceed on the basis that “fitness to give evidence before the Tribunal is a jurisdictional fact upon which the Court must reach its own view” (at [46]). Similarly in this case the parties accepted that the Court must reach a view on the applicant’s fitness to give evidence and present argument before the Tribunal.

11. However as Branson J pointed out, SCAR provides limited assistance as to the content of the requirement that an applicant be fit to give evidence and present argument to the Tribunal.  Her Honour suggested that while some limited guidance could be gained from considering the common law concept of fitness to plead to a criminal charge, there were “important differences” both as to procedure and possible outcomes between a criminal trial and a Tribunal hearing. 

12. In NAMJ her Honour found that in considering what was involved in competence to give evidence and present argument relating to the relevant issues in any particular case, it was necessary to bear in mind “the nature of the Tribunal and the way in which it can be expected to conduct a hearing” (at [55]). In this respect reference was made to the fact that a Tribunal hearing was not adversarial in nature and that having regard to s.420 of the Migration Act the Tribunal “has a capacity to modify its procedures to accommodate the particular circumstances of an applicant which a trial court does not have” (at [56]). 

13. Branson J also referred to the fact that an applicant’s claims were likely to be able to be identified by material already before the Tribunal and that the Tribunal must consider any claim “reasonably able to be identified from the evidence and other material before it (at [57]) and that to this extent the Tribunal has the conduct of the hearing.  In addition (at [57]):

    The legislature may be assumed to have appreciated that most applicants will not have a detailed understanding of the requirements of the Act or, without prompting by the Tribunal, of the precise nature of the evidence that might assist their claim to be entitled to a protection visa.

14. Importantly, Branson J did not consider it wise “to attempt to formulate an exhaustive test of ‘fitness’ to take part in a Tribunal hearing”, suggested that it seemed likely that no single standard of fitness would be appropriate for all cases and that it had to be assessed “having regard to the particular circumstances of each case including the intended purpose of the hearing before the Tribunal and the support and assistance available to the applicant” (at [58]).

15. Even if I am not bound to follow the approach taken by Branson J at first instance (Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586, but see Suh and Others v Minister for Immigration and Citizenship and Another (2009) 175 FCR 515 and Muliyana v Minister for Immigration & Anor [2009] FMCA 691 at [35] – [39]), I consider it appropriate to do so in this instance.

16. Having regard to the invitation required by s.425, as Branson J suggested, for a hearing invitation to be “meaningful”, the applicant “should be competent to do that which the Act envisages, namely to give evidence and present arguments relating to the relevant issues” (at [55]). 

17. In the particular circumstances of NAMJ what was in issue was the applicant’s capacity to understand that the Tribunal was concerned about the fact that he had apparently advanced two separate sets of claims and his credibility was for this reason suspect, as well as his capacity to understand and respond to questions about experiences in his home country and the process of seeking a protection visa in Australia (at [59]).

18. In this case the issue is more generally whether the applicant has established that he was unfit to give evidence and present arguments at the hearing on 10 July 2008 in relation to his claims to have a well-founded fear of persecution. 

1. Consistent with the approach taken by Branson J in NAMJ, I consider that in determining whether the applicant was fit to take part in the Tribunal hearing on 10 July 2008 it is appropriate to have regard to the particular circumstances of the case, including in particular the expert evidence provided to the Tribunal as well as the transcript of the Tribunal hearing, the support and assistance available to the applicant and the Tribunal’s assessment of the applicant’s presentation and evidence at the hearing.  In that respect I have borne in mind that it is appropriate to accord weight to the view taken by the Tribunal.  

2. There are two expert medical reports in this case.  There is no fresh evidence as to fitness before the Court. The applicant did not give evidence in these proceedings.  He was not under an obligation to put additional expert evidence before the Court.  I note that there was no additional evidence before the Court from the applicant in SCAR.

3. Dr Jacobs, the applicant’s consultant psychiatrist, strongly recommended in his report of 2 September 2007 that the applicant not participate in a hearing at that time as he was said to be “medically unfit to concentrate and prepare for such a hearing” as he was significantly depressed.  I accept that at the time of the report by Dr Jacobs, the applicant’s mood was depressed, his affect was significantly slowed, he had no thought disorder but had auditory hallucinations, but not clear delusions and had “quite good” insight.  Dr Jacobs was unable to test the applicant’s cognition.   

4. It is notable that while Dr Jacobs expressed the opinion that the applicant was medically unfit to concentrate and prepare for a hearing at that time, an opinion which I accept, he also stated that he believed that the applicant “may be ready” to participate in about two months “but that depends upon his response to medication”.  This assessment was made at a time the applicant had just commenced on medication, the dosage of which was to be increased after four days. 

5. Rather than awaiting the results of a review by the applicant’s own psychiatrist, the Tribunal then requested that the applicant undertake a health assessment with a consultant forensic psychiatrist nominated by the Tribunal through HSA.  That specialist medical practitioner (Dr Roberts) was specifically asked not only to assess whether the applicant could attend a hearing with the Tribunal but also, if the applicant was unable to attend for health reasons, when he would be able to attend. 

6. No issue arises as to whether the Tribunal was under a duty to obtain a medical report, although I note that according to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ, it is not under such a duty. Nor does any issue arise as to whether the assessment of the applicant’s fitness to give evidence would reasonably involve consideration of the truth or otherwise of the claims on which he relied in seeking a protection visa (a matter about which Branson J expressed concern in NAMJ at [48]). It is not necessary in order to determine the fitness of the applicant to participate in the Tribunal hearing to reach a view on whether any of the claimed persecutory conduct was in fact experienced by the applicant. I note in that respect that the Tribunal accepted that the claimed conduct had occurred and that the depression and post traumatic stress disorder suffered by the applicant were triggered by the two attacks that had occurred. In any event, whatever the cause of the applicant’s condition, the issue is simply whether it was such that the invitation extended by the Tribunal was not a meaningful invitation because the applicant was not fit in July 2008 to give evidence and present arguments to the Tribunal within s.425 of the Act.

7. As set out above, in his report Dr Roberts acknowledged the two-fold aspect of the letter of instruction he had received. He expressed the opinion that the applicant was currently unfit to participate in a Tribunal hearing, that is as at the time of the report on 15 October 2007.  Dr Roberts addressed the second aspect of his instructions by referring to the fact that as the applicant had commenced on anti-depressant medication only some three weeks prior to his consultation and may need to change medication or increase the dose, it was at that time “premature to attempt to predict” when the applicant would become sufficiently well to be considered fit to participate in a hearing.  It was on this basis that Dr Roberts stated that “[a] review will be necessary to reassess fitness after a further period of treatment”. In other words, without such a review, Dr Roberts could not provide the requested assessment of when the applicant would be able to attend a Tribunal hearing. What the applicant told the Tribunal about his medication is consistent with Dr Roberts’ report that the applicant was taking the increased dosage of the anti-depressant prescribed by Dr Jacobs (see [45] above).

8. The fact that at the time of his assessment Dr Roberts was not able to predict when the applicant would be fit to participate in a hearing (given the applicant’s recent commencement on anti-depressant treatment) does not mean that his opinion was to the effect that the applicant’s unfitness would necessarily continue until some unspecified future time in the absence of a review.  Rather, it is apparent that Dr Roberts was of the view that the applicant’s response to treatment was relevant to his fitness and that he could only assess that (as the Tribunal asked him to do) once the necessary time for such a response to occur had passed.  However Dr Roberts also made it clear that if a patient was on “an antidepressant which suits the patient both in terms of tolerability and effectiveness, it is expected that remission of symptoms would occur within a period of six to twelve weeks”, although if the applicant was required to change medication or increase the dose “a more protracted course is expected”.  There is no suggestion that there was any change to the prescribed medication or increase in dosage beyond the initial increase after four days referred to both in Dr Jacobs’ report and in the applicant’s evidence at the Tribunal hearing.  Consistent with this opinion, Dr Roberts offered to re-assess the applicant in two to three months from the time of his report. 

9. It is important to have regard to the nature and impact of the applicant’s condition and the specific deficiencies in competence identified in Dr Roberts’ report of October 2007 relevant to the issue of whether the applicant was fit to participate in a Tribunal hearing in July 2008.  Dr Roberts stressed that the applicant’s presentation and the severity of his psychiatric condition, in particular his “profound apathy with respect to the consequences of the Tribunal Hearing” and “apparent indifference” to the outcome of the hearing, led him to expect that the applicant’s ability to represent himself at a hearing would be “substantially affected by his indifferent attitude” and that his “ability to provide such evidence as would support his case, would be impaired”. 

10. Moreover, relevant to the Tribunal’s reliance on the applicant’s view of his ability to participate in the hearing, Dr Roberts’ opinion was that the applicant had “a lack of insight as to the importance” of the hearing that was “driven by his psychiatric condition”.  I accept that at the time of Dr Roberts’ report the applicant exhibited sleep disturbance, psychomotor retardation, profound apathy to the consequences of his circumstances, an indifference to the process and a lack of insight as to the importance of the Tribunal hearing.  I also note that Dr Roberts found that the applicant’s account of his history was limited by diminished spontaneity of conversation, although he described the two assaults he claimed he had experienced in the Ukraine and the resulting injuries and impact. 

11. I am satisfied on the basis of the reports by Dr Jacobs and Dr Roberts that as at October 2007 the applicant was not fit to participate in a Tribunal hearing.  Had the Tribunal held a hearing at that time it would not have afforded the applicant the “meaningful invitation” required under s.425 (see SCAR). 

12. However, Dr Roberts’ report is not of itself, or considered with Dr Jacobs report, such as to satisfy me that the applicant was necessarily unfit to participate in the hearing held on 10 July 2008.  The prognosis was not that the applicant remained unfit to participate in a hearing for a continuing indefinite time, but that as at October 2007 it was premature to predict when the applicant would be fit, as it would depend on his response to medication.  Hence Dr Roberts could not address the second aspect of the Tribunal’s instructions (see [8] above) at that time.

13. The applicant’s migration agent obtained a copy of Dr Roberts’ report in November 2007, after the Tribunal advised that the hearing had been rescheduled for 21 April 2008.  He did not request any further postponement.  The Tribunal received a response to hearing invitation form dated 31 March 2008 indicating that the applicant would attend the hearing.  The Tribunal postponed the hearing twice more.  Each time it received the same positive response to the hearing invitation and no further issue was raised about the applicant’s fitness to attend the hearing. 

14. The adviser did bring to the Tribunal’s attention Dr Roberts’ October 2007 opinion about the applicant’s apparent indifference as to the outcome of the Tribunal hearing in his letter of 10 July 2008.  However no postponement of the hearing was sought.  I have however borne in mind that the applicant’s willingness to attend the Tribunal hearing on 10 July 2008 must be seen in the context of his indifference to the importance of the Tribunal hearing in October 2007 and his desire to have the matter resolved quickly.  (cf SGLB at [125] per Callinan J).

15. I am of the view that the analogy of fitness to plead in a criminal trial is not entirely in point although, as Branson J suggested in NAMJ, some limited guidance can be gained from considering that concept. However, as her Honour pointed out, there are important differences between a criminal trial and a hearing before the Tribunal (at [53]). In particular, in the context of a Tribunal hearing what is in issue is the applicant’s ability to give evidence and present argument relating to the relevant issues, not the applicant’s capacity to understand, plead, follow the course of the proceedings and make a defence or answer a charge relevant in relation to the common law test of fitness to stand trial (see Eastman v The Queen (2000) 203 CLR 1 at [58]). Moreover the Tribunal hearing is not adversarial. The Tribunal is not bound by technicalities and can modify its procedures to accommodate the particular circumstances of an applicant. As Branson J stated at [57]:

    The tribunal is required, for the purpose of determining whether or not it is satisfied of the matters identified in s 65 of the Act, to consider the claims of the applicant upon which his or her claim for asylum is based.  Those claims are likely to be able to be identified from the material already before the tribunal when the hearing commences.  That material will include any written submissions made on behalf of the applicant.  Additional claims may be identified during the course of the hearing.  Although the tribunal is not required to make a case on behalf of an applicant, it must give consideration to any claim reasonably able to be identified from the evidence and other material before it.  To this extent the tribunal and not the applicant has the conduct of the hearing.  The legislature may be assumed to have appreciated that most applicants will not have a detailed understanding of the requirements of the Act or, without prompting by the tribunal, of the precise nature of the evidence that might assist their claim to be entitled to a protection visa.

16. It is relevant to have regard to the conduct and intended purpose of the Tribunal hearing.  In this case the transcript of the hearing is in evidence.  The Tribunal was aware of the expert medical reports, including Dr Roberts’ view that it was premature in October 2007 to predict when the applicant would become sufficiently well to be considered fit to participate in a hearing, as this would depend on his response to treatment. 

17. The applicant had the assistance of his migration agent at the hearing.  Importantly, as the Tribunal found and consistent with what appears in the transcript, the applicant’s answers to questions were responsive and detailed.  While the Tribunal did not raise the evidence about the applicant’s psychological condition until after dealing with introductory matters, it also obtained confirmation from the applicant that he saw Dr Jacobs every three weeks, the last time a little over two weeks before the hearing and that he had been taking his prescribed medication at the increased dosage.

18. The fact that the applicant suffered from depression and post traumatic stress disorder and continued to receive treatment is relevant to but not determinative of his fitness to participate in the Tribunal hearing.  As Branson J pointed out in NAMJ at [52]:

    The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees at [207]–[208] recognises that determinations of refugee status may need to be made in respect of individuals suffering mental and emotional disturbances.  The legislature may also be presumed to have been aware of this need.  For this reason it seems unlikely that the legislature would have intended to set a jurisdictional standard of “fitness” that might prevent a significant number of individuals seeking asylum in Australia from being able to progress applications before the tribunal to the stage of a hearing when the tribunal is not able to decide the applications “on the papers”.  That is, it seems likely that the legislature intended that a tribunal hearing should be able to proceed notwithstanding some measure of psychological stress and disorder in the applicant.  The decision in MIMIA v SCAR establishes, however, that there is a point at which an applicant’s psychological state renders a tribunal hearing a nullity.

19. As the Tribunal recorded, it is apparent that in the hearing the applicant was able to engage in extended discussion on a range of issues.  He also had the assistance of his adviser, who was given the opportunity to and made a number of points about anti-Semitism in Ukraine and the applicant’s claims. 

20. There is no indication or claim in these proceedings that the applicant failed to address aspects of his claims as previously put in writing, that he made different claims or inconsistent claims, that he was otherwise unable to articulate the extent and nature of the basis of his claim to fear persecution or that he was limited in his ability to respond to issues raised by the Tribunal.  Counsel for the applicant did not point to any specific difficulties in the applicant’s participation in the hearing (other than in relation to how Dr Roberts’ report and his psychological condition was discussed).  The accuracy of the Tribunal’s assessment of the applicant’s presentation at the hearing was not challenged in these proceedings. 

21. The Tribunal asked the applicant about whether he was able to participate in the hearing properly.  While his positive response could not be determinative and must be seen in light of the apathy identified by Dr Roberts in October 2007, it is notable that neither the applicant nor his advisor suggested that he was not fit to participate in July 2008.  Moreover, notwithstanding that the applicant indicated that he thought he could participate, the Tribunal also informed him that it was “very important” that if he encountered “any difficulty at any point” he let the Tribunal know and they would take a break.  The Tribunal also informed him that “if it’s a serious problem then we’ll adjourn the hearing and come back on another day”.  Hence it cannot be said that the applicant was not made aware that he could seek a further adjournment.  Neither the applicant nor his adviser sought a break or an adjournment. 

22. After a scheduled break, the Tribunal asked the applicant how he was feeling, to which he responded “Fine” (transcript page 21).  In addition, at the end of the hearing the Tribunal stated (transcript pages 34 – 35): 

    One other point, I suppose, that I just need to ask you about at this point is the following.  At the beginning of the hearing we discussed these psychological difficulties that you were suffering from, and after we had discussed it you indicated that you believed that those difficulties wouldn’t prevent you from participating effectively in the hearing.  Certainly, that’s been my impression as we have gone through the hearing.  But I just wanted to confirm with you at this point that – well, let me ask you whether you believe that you were able to participate properly, you weren’t prevented by any psychological problem from responding and putting information before the tribunal. 

    The applicant responded:

    Actually, yes, I am – it was fine, but simply I am very tired and, you know, when I feel this tiredness it makes me even more depressed.  But, still, I would like to have a final decision, I would like it to be somehow resolved, because it’s just making me more depressed when it’s going on.

23. I accept that, as counsel for the applicant submitted, the applicant’s own assessment should not be determinative of his fitness.  However these exchanges also demonstrate that opportunities were given to him and to his advisor to raise any issues about his ability to participate in the hearing and that the Tribunal sought to adapt its procedures and to offer assistance to accommodate his particular circumstances (NAMJ at [56] and [58]).

24. I also accept that in assessing the fitness of the applicant to take part in the hearing I should accord weight to the view taken by the Tribunal.  In this case, (unlike SCAR), the Tribunal was aware of the medical reports and accepted on that basis that the applicant “now suffers from depression and post-traumatic stress syndrome, and that these conditions were triggered by the two attacks”.  Contrary to the applicant’s submission, it is not apparent that the Tribunal misunderstood the report from Dr Roberts in relation to the applicant’s fitness to participate in a Tribunal hearing.  At the time of the report Dr Roberts’ opinion was that the applicant was unfit (October 2007) but in relation to the second issue raised with him, his opinion was that at that time it was premature to predict when the applicant would be fit and that for him to address that issue he would have to review the applicant after a further period of treatment.  This does not mean that the Tribunal could not form a view of the applicant’s fitness having regard to the nine months that had passed since the assessment and the applicant’s evidence and presentation at the hearing.

25. As in NAMJ, I do not consider the Tribunal’s assessment of the applicant’s ability to participate in the hearing held on 10 July 2008 was rendered “improbable” by the fact that the applicant was unfit in October 2007. 

26. Having regard to all the evidence before the Court, and bearing in mind that the applicant bears the onus of establishing that he was unfit to take part in the hearing, I am not satisfied that at the time of the Tribunal hearing the applicant lacked the capacity to give an account of his experiences in Ukraine, to present argument in support of his claims, to understand or to respond to the questions and concerns put to him or to do so in detail.  I am not satisfied that the applicant’s psychological condition was such as to deprive him of the “meaningful opportunity” required under s.425 of the Migration Act. No breach of s.425 is established.

1. Nor, insofar as there is scope for a claim of procedural fairness in light of s.422B(1) of the Act (and whatever the scope of s.422B(3)), is any lack of procedural fairness established on the basis contended for by the applicant.

2. Insofar as the applicant relied on the fact that the Tribunal did not or did not clearly put Dr Roberts’ report to him in the hearing, the Tribunal did not misrepresent the opinion of Dr Roberts in relation to the applicant’s fitness at the time of the assessment.  As set out above, Dr Roberts did not state that the lack of fitness was ongoing unless and until a reassessment of fitness occurred.  Moreover the applicant had a copy of Dr Roberts’ report (which was referred to in the letter from his migration agent of 10 July 2008).

3. Further, it is clear that the Tribunal took Dr Roberts’ opinion into account in its assessment of the applicant’s fitness.  It was open to the Tribunal to raise with the applicant the time that had passed and the interests of the parties that the process not “drag on”. It did not treat this issue as determinative, as is clear from its offer to the applicant to break or adjourn the hearing if necessary. Assuming this was a relevant consideration (see s.414A), the Tribunal did not err in the manner in which it determined to proceed with the hearing. It was also open to the Tribunal to have regard to the applicant’s statements to the effect that he was able to participate properly as part of all the circumstances. It has not been established that the Tribunal had regard to irrelevant issues, failed to consider relevant matters, misdirected itself in law or acted in a way that was not fair and just.

4. As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  12 August 2009