SZNCR v Minister for Immigration & Anor
[2009] FMCA 338
•22 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNCR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 338 |
| MIGRATION – Visa – Protection (Class XA) visa – Refuge Review Tribunal – application for judicial review – interlocutory decision. EVIDENCE – Admissibility – opinion evidence – expert evidence – admissibility of expert evidence – consideration of the basis on which expert evidence is admissible under Evidence Act 1995 (Cth) s.79. |
| Evidence Act 1995 (Cth), s.79 Evidence Act 1995 (NSW), ss.79, 80 Federal Magistrates Court Rules 2001 rr.15.06A, 15.07 |
| Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 Clark v Ryan (1960) 103 CLR 486 Velevski v R (2002) 187 ALR 233; [2002] HCA 4 Australian Securities and Investments Commission v Vines (2003) 48 ACSR 291; [2003] NSWC 1095 Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 |
| Applicant: | SZNCR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 5 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 April 2009 |
| Date of Last Submission: | 16 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | McLaughlin & Riordan |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Attachment 1 to the further amended application, Attachments 2 and 3 combined, and Attachments 4 and 5 combined, are inadmissible in their present form.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 5 of 2009
| SZNCR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This application arises in the context of an application for review of a decision of the Refugee Review Tribunal dated 3rd December 2008 and handed down on 4th December 2008 affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Protection (Class XA) visa. The applicant has filed an amended application and attached to it some documents of a medical or psychological nature, upon which he seeks to rely.
Counsel for the Minister, Mr Mitchell, has objected to these documents going into evidence on the basis of their admissibility. His submission is that all of the documents are wholly inadmissible. In particular, it is submitted that the documents are:
(1)wholly inadmissible as expert evidence as they do not demonstrate the expertise of the authors of the documents;
(2)irrelevant;
(3)hearsay; and
(4)opinion.
Mr Young of counsel, who appears for the applicant, submits that they are admissible as expert evidence, although conceding that there are degrees of expertise.
The Documents Concerned
The applicant has attached to his Further Amended Application, which is not objected to per se, five documents:
Attachment 1: Referral Letter dated 5/3/09 and Mental Health Plan dated 5/3/09 from Dr Adel Zaki;
Attachment 2: Assessment Report dated 1.4.09 from Dr Zareena Anantharaman PhD addressed to Dr Zaki;
Attachment 3: A document headed “To whom it may concern” dated 3.4.09 from Dr Anantharaman, setting out her qualifications;
Attachment 4: A letter dated 3 April 2009 from the applicant’s solicitors to Dr Anantharaman asking her four questions; and
Attachment 5: A letter dated 7.4.09 from Dr Anantharaman in reply, containing answers to those four questions in Attachment 4.
The basis of the objection
Mr Mitchell submitted that Dr Zaki’s material in Attachment 1 is wholly inadmissible, because it does not show that he has any relevant qualifications in the field of mental health, it is irrelevant, hearsay and admissible opinion.
It was conceded that Attachments 2 and 3 should be read together, as should Attachments 4 and 5. However, Mr Mitchell submitted that there was nothing in Attachment 3, setting out Dr Anantharaman’s qualifications as a psychiatric social worker that would show that she has any training, study or experience that would qualify her to diagnose psychiatric or adjustment disorders. The reports, he submitted, are inadmissible because the conclusions that they contain are not explained.
Presumably, the diagnoses are taken from Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, known as DSM-IV, published by the American Psychiatric Association, but that is not apparent. Mr Mitchell submitted that caution should be exercised by anyone in using DSM-IV, but it is speculative because the report does not indicate that DSM-IV was used at arriving at the diagnosis.
In short, Mr Mitchell submitted that the documents from Dr Anantharaman do not indicate the basis upon which the conclusions are drawn, there is nothing to show that the conclusions reached are matters for expert opinion rather than speculation and that the reports appear to go beyond the area of expertise professed to be possessed by Dr Anantharaman.
Counsel for the Minister drew the Court’s attention to the decisions of Makita (Australia) Pty Ltd v Sprowles[1]at [59], [84]-[90], HG v The Queen[2] at [39]-[41], Clark v Ryan[3] at 491, Velevski v R[4] at [81]-[85], and Australian Securities and Investments Commission v Vines[5] at [15].
Submissions on behalf of the Applicant
[1] (2001) 52 NSWLR 705; [2001] NSWCA 305
[2] (1999) 197 CLR 414; [1999] HCA 2
[3] (1960) 103 CLR 486
[4] (20020 187 ALR 233; [2002] HCA 4
[5] (2003) 48 ACSR 291; [2003] NSWSC 1095
Mr Young, who appeared for the applicant, submitted s. 79 of the Evidence Act 1995 (Cth) was intended by the legislature to be an important provision in the Evidence Act and not just a way to reintroduce the common law principles relating to expert evidence.
In effect, he submitted, it widened the area of who is an expert. Because the section is so wide, there may well be issues about the weight to be given to evidence.
Mr Young further submitted that hearsay within a document does not determine its admissibility as a whole. Criticism of words in the documents such as “certainly” or “definitely” goes to matters of weight, not admissibility. The fact that a person giving an opinion under s. 79 is not necessarily the best person to give the opinion does not go its admissibility, only to its weight. Dr Anantharaman saw the applicant for the purpose of treatment and not for the purpose of providing an assessment.
It was conceded that the preferable form of diagnosis (in a mental health matter) is from a psychiatrist rather than from a psychologist, but it would not make a psychologist’s diagnosis inadmissible.
Submission in reply
Mr Mitchell conceded that if the evidence was admitted as opinion then the question of hearsay would not apply.
Dr Zaki’s observations are hearsay, it was submitted. He is a general medical practitioner.
Mr Mitchell conceded that Dr Anantharaman has experience over a period of 23 years but the issue is whether she has the training, study or experience at diagnosing post-traumatic stress disorder, which is one of the issues in the present case.
The Relevant law
Subsection 79(1) of the Evidence Act 1995 provides:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
The Federal Magistrates Court Rules consider the use of expert evidence. An expert is defined by r.15.06A:
In this Division:
Expert, in relation to a question, means a person (other than a family and child counsellor or a welfare officer) who has specialised knowledge about matters relevant to the question based on that person’s training, study or experience.
Experts have a duty to the Court, set out in r. 15.07:
For an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.
In Makita (Australia) Pty Ltd v Sprowles[6], dealing with the evidence of one Professor Morton about tests conducted on the coefficient of friction of certain stairs, Heydon JA, with whom Powell JA and Priestley JA agreed, said at [59]:
If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.
[6] supra
His Honour went on to refer to the decision of Gleeson CJ in HG v The Queen[7]at [39]-[44] and said at [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 identified 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, 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 filed of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.
[7] supra
Heydon J referred with approval to the decision of the Full Court of the Federal Court in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd[8], where Black CJ, Cooper J and Emmett J said at [22]:
However, it is not permissible to conclude from those matters alone that an author of a report has any specialised knowledge, except to the extent that the report states (or it otherwise appears from admissible evidence) what that knowledge is. Nor is it permissible, by reason of those matters alone, to conclude that any specialised knowledge that the author of a report has is based on any training, study or experience of the author. Thus, it is not permissible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person has any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based.
[8] [2000] FCA 1463
In HG v The Queen, Gleeson CJ said at [44]:
…It is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture “opinions” (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.
In Clark v Ryan[9] Dixon CJ, referring to Carter v Boehm[10], quoted from J.W. Smith:
“On the other hand” that author wrote, “it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it…While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it”
[9] supra
[10] 1 Smith L.C. 7th ed (1876) p. 577
In Velevski v R[11], Gaudron J, in a dissenting judgment, referred to the provisions of ss. 79 and 80 of the Evidence Act 1995 (NSW), said at [82]:
The concept of “specialised knowledge” imports knowledge of matters which are outside the knowledge or experience of ordinary persons[12] and which “is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience”.[13]
[11] supra
[12] footnotes deleted
[13] footnotes deleted
In Australian Securities and Investments Commission v Vines[14], Austin J at [15] noted that Gaudron J had in Velevski v R applied Dixon CJ’s test in Clark v Ryan, regarding it as applicable under s. 79 of the NSW Act.
[14] supra
Conclusions
There are five attachments to the further amended application upon which the applicant seeks to rely. They can conveniently be regarded as three separate documents, due to the connection between Attachments 2 and 3, and between Attachments 4 and 5.
The first point to be made is that expert evidence, unless it is to be admitted by consent, should be on affidavit, deposed to by the author of the document. Clearly, the first respondent does not consent and the subject matter is very much in issue. It equally forms an important part of the applicant’s case. It is to be expected that evidence would be called on this issue.
Thus, it is inappropriate that evidence of this nature should be “tacked on” to a further amended application. As has been set out in the applicant’s supplementary written submissions, the applicant intends to submit that at the time he gave evidence before the Refugee Review Tribunal on 23rd September and 13th November 2008, “he was suffering and was affected by a post-traumatic stress disorder, adjustment disorder with anxiety and depressed mood which interfered with his ability to think logically and rationally”. [15]
[15] Applicant’s supplementary written submissions at [3]
In those circumstances, any evidence upon which the applicant seeks to rely should be in proper form, which, to my mind, should be on affidavit.
Attachment 1 consists of the referral letter and mental health plan from Dr Zaki. The mental health plan contains a patient history and Dr Zaki’s observations of the applicant. There is nothing on either document as to Dr Zaki’s qualifications, although presumably he is a general medical practitioner and would have some training, study or experience in diagnosing mental illness or mental disorder.
In my view it is inadmissible in its present form.
Attachment 2 and Attachment 3 are to be read together. Attachment 2 is an assessment report and Attachment 3 is a resume setting out Dr Anantharaman’s qualifications. If those documents were the subject of an affidavit I would incline towards the view that a sufficient degree of training, study or experience may well have been demonstrated to render the document admissible as expert evidence, although there appear to be parts of the document which in their present form would be inadmissible in any event as speculative or outside the author’s area of expertise.
Attachments 4 and 5 are to be read together. Attachment 4 contains a letter from the applicant’s solicitor to Dr Anantharaman asking four questions and Attachment 5 contains Dr Anantharaman’s replies to those four questions. I am satisfied that the two documents combined in a question and answer format are not in proper form to be regarded as expert evidence to meet the requirements of either s. 79 of the Evidence Act or the Federal Magistrates Court Rules.
I find that Attachment 1, Attachments 2 and 3 combined, and Attachments 4 and 5 combined, are inadmissible as expert evidence.
The application for judicial review was listed for final hearing on
16th April 2009. The minutes of consent order tendered on
16th February 2009gave an estimated length of the hearing of 2 hours, which in hindsight has proven to be highly optimistic. The submissions on the admissibility of the attachments to the further amended application took all of that time, which means that the Court has not heard any evidence, let alone taking any submissions, as to the substantive issues.
In real terms, the substantive hearing has effectively not yet commenced. If the applicant wishes to rely on evidence of this nature, and that seems to be the case, the interests of justice would require that he be given the opportunity to present that evidence in a form that allows it to be tested by the first respondent. That may or may not require the first respondent to seek some psychiatric or other examination of the applicant and tender some evidence in affidavit form. I will hear submissions from the parties on the future progress of the matter.
Attachment 1 to the further amended application, Attachments 2 and 3 combined, and Attachments 4 and 5 combined, in their present form, are inadmissible.
I will hear submissions as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 20 April 2009
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