SZOGP v Minister for Immigration - [2010] FMCA 704

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGP & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 704

MIGRATION – RRT decision – applicant medically unfit to attend hearing – Tribunal made decision without taking oral evidence – power to proceed without attendance at hearing – no failure to follow fair procedure – extension of 2 months to bring application granted – application dismissed.

Migration Act 1958 (Cth), ss.414, 414A, 420, 422B(1), 424(2), 424A, 425, 425(1), 425A, 426A, 427, 427(1)(b), 476, 476A(3)(a), 477(1), 477(2), Pt.7

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Applicant S296 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1166
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541, [2003] FCAFC 298
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553, [2003] FCAFC 126
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572, [2006] FCAFC 152
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, [2004] HCA 32
Minister for Immigration & Citizenship v SZGUR & Anor [2010] HCATrans 250
Minister for Immigration & Citizenship v SZGUR & Anor [2010] HCATrans 202
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39
Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41
NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 56, [2003] FCA 983
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89, [2003] FCAFC 262
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Saeed v Minister for Immigration & Citizenship [2010] HCA 23
Sok v Minister for Immigration & Citizenship (2008) 238 CLR 251
SZGUR v Minister for Immigration & Citizenship (2010) 114 ALD 112, [2010] FCA 171
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511, [2003] FCAFC 171
Yu v Minister for Immigration & Anor [2009] FMCA 1161, (2009) 236 FLR 251

First Applicant:

SZOGP

Second Applicant:

SZOGQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG620 of 2010

Judgment of:

Smith FM

Hearing date:

19 August 2010

Delivered at:

Sydney

Delivered on:

26 October 2010

REPRESENTATION

Counsel for the Applicants:

Mr J Gormly

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 22 March 2010.
The application is dismissed.
The applicants pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG620 of 2010

SZOGP

First Applicant

SZOGQ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are a wife and husband, who claimed that they were entitled to protection visas based upon the wife’s experiences of persecution for her religious activities in China. They sought review by the Tribunal of a decision refusing their applications. A hearing appointed by the Tribunal was postponed at their request, after their agent presented evidence that the wife was suffering from an anxiety condition. They now complain that the Tribunal later said that it would proceed to make a decision without taking any oral evidence from the wife.
Their application to the Court requires two months’ extension of the time to apply for relief, but, for reasons which I shall explain, I consider that time should be extended. I have, however, decided that their application should then be dismissed.

Introduction

It is undoubted that the Refugee Review Tribunal should take into account the effects of possible mental impairments, particularly the symptoms of possible post‑traumatic anxiety conditions, when assessing the credibility of a refugee claimant’s evidence. The symptoms may produce avoidance or vagueness about memories of past persecution, and may render difficult the assessment of the reliability and credibility of the claimant. The symptoms, or their medication, may also generally affect the demeanour and presentation of the claimant when questioned.
The role of judicial review in cases involving claims of mental impairments is, however, confined. Recent Federal Court judgments treat the Tribunal’s assessment of claims of mental impairments, or its assumption of normal mental capacities in the absence of pertinent medical evidence presented to it by the claimant, as usually falling within the Tribunal’s jurisdiction to determine issues of fact. Only in exceptional cases can jurisdictional error be found, where it is proved to the Court that a claimant was actually ‘unfit’ to give any evidence at a hearing appointed by the Tribunal, and that the ‘integrity’ of the Tribunal’s hearing procedure has been ‘subverted’ (see Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41 at [37], [49], and [87], applying Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553, [2003] FCAFC 126).
Only in exceptional cases, does a failure by the Tribunal itself to obtain or investigate medical evidence bearing on claims of mental impairments give rise to jurisdictional error, although the Tribunal is probably bound to consider any evidence presented to it, and to address any request that it should itself investigate (cf. Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39, and SZGUR v Minister for Immigration & Citizenship (2010) 114 ALD 112, [2010] FCA 171, noting that the High Court has reserved judgment in an appeal from the latter judgment: see [2010] HCATrans 202, and [2010] HCATrans 250).
The present case does not require me to explore the uncertain boundaries of ‘unfitness’ to participate in a hearing and ‘subversion’ of procedures required by s.425 of the Migration Act 1958 (Cth). Nor does it raise issues concerning the Tribunal’s investigation or assessment of claims of unfitness in the present case. It does, however, raise issues which were not addressed in SCAR or SZNVW, arising from the conclusion of the present Tribunal that the applicant wife “is unable to properly give oral evidence to the Tribunal at a hearing” and that “this situation is likely to continue for the foreseeable future”. Neither party challenged these findings as being incorrect in fact, nor that they were not open on the evidence which was before the Tribunal.
The first issue is whether, upon the Tribunal’s findings, Part 7 of the Migration Act gave the Tribunal power to complete its review, rather than indefinitely postponing its decision to see whether the applicant’s condition might improve enough for her to give oral evidence to the Tribunal. The second issue concerns the fairness of the procedures followed by the Tribunal, when deciding to proceed to make a decision in the absence of evidence being taken from the applicant at a hearing. In particular, the applicants argue that the Tribunal failed sufficiently to warn the applicant that this might be the consequence of her tendering evidence of chronic unfitness to attend a hearing.
I have concluded that the Tribunal sufficiently complied with its obligation to invite the applicant wife to a hearing, and that it had power to proceed to make a decision without appointing a rescheduled hearing, once it was satisfied that she would be unfit to attend for the foreseeable future. I have also concluded that its exercise of discretion to proceed in this manner was not vitiated by any jurisdictional error. I am not persuaded that the applicants are entitled to relief under s.476 of the Migration Act.

The applicants’ refugee claims

The applicants arrived in Australia in April 2009. On 20 April 2009, they lodged applications for protection visas, assisted by Mr Harry Huang of Pricilla International Co Pty Ltd. Only the wife claimed to be a refugee, and to fear persecution if she returned to The People’s Republic of China. Although her claims suggested that the husband also feared persecution as a Christian, this claim does not appear to have been developed nor asserted by the husband in the subsequent proceedings before the delegate and the Tribunal.
The applicant wife claimed that she ran a clothing shop in a different province than their home in Fujian Province. In 2007 she was influenced by a devout Christian who was an activist of the Local Church. She “began to attend the secret gatherings of the Local Church” and was baptised in February 2008. With that person, she “actively developed the movements of the Local Church in [that] province, including setting up secret gathering groups and distributing promotion materials of the Local Church”. They “evangelise to the local residents” in villages, and distributed the Local Church’s promotion materials including the Recovery Version Bibles. In November 2008 she was arrested and detained by the PSB for nearly two months, because “I was suspected to get involved in ‘illegal’ and ‘anti‑government’ religious activities”. She was mistreated by the police, but denied any knowledge. Her friend was sent to a labour camp, and the applicant wife was released. She was “continually harassed by the police”, who “sometimes went to my clothing shop for so‑called investigation; or sometimes asked me to report to the PSB about my routine activities”. Her friends then arranged “my trip to the overseas in order to escape from persecution by the police”. She believed that “I must be arrested by the Public Security Bureau (‘PSB’) on return, because I have already been on the ‘black list’ of the PSB; and I am sure that I must be sentenced to many years imprisonment”.
Some evidence of the applicants’ identity was provided, but no independent corroboration of their claims of persecution. On 6 July 2009 a delegate interviewed the applicant wife, who was accompanied by her migration agent. There is no evidence that the applicant wife claimed to be suffering from any mental impairments or illness in the course of the delegate’s proceedings.
On 17 July 2009, the delegate refused the visa applications. The delegate said that she found much of the applicant wife’s testimony at interview “to be vague, contradictory and unsubstantiated”. She said:
The applicant did not provide the basic relevant information such as when and where she practised her religion. She was unable to describe the activities during a typical gathering of the group. Based on her vague and uninformative testimony I conclude that the applicant did not corroborate her claims of an active leadership role in ‘developing the movements of the Local Church in [the] Province (including setting up secret gatherings and distribution of promotional materials)’. The applicant was unable to illustrate in what manner, when, and where she actually evangelised in order to attract new members of the church. The applicant stated that the Local Church followers use the ‘Revised Bible’ but was unable to describe it or to provide detail description of her favourite readings from the Bible.
…
Overall the applicant’s responses at interview were characteristic of someone who had been coached in regard to the claims made, and had rehearsed answers to anticipated questions. …
The delegate also identified defects in the applicant wife’s evidence about her baptism, and detention. The delegate considered some aspects of her claims to be inconsistent with country information about the treatment of members of the Local Church, and gave weight to the fact that she had legally departed China without any difficulties on a genuine Chinese passport issued to her in her true identity. The delegate was not satisfied that there was any real chance that she would face persecution for a Convention ground if she returned to China.

The proceedings before the Tribunal

The applicants appealed to the Tribunal, and continued to be represented by Mr Huang.
By letter dated 28 August 2009 the Tribunal invited them to appear before the Tribunal at a hearing on 24 September 2009. It is not contested that this letter complied with the formal requirements for service of a notification of a hearing under ss.425 and 425A and other relevant provisions of the Migration Act and Regulations.
Under s.426A:
426A Failure of applicant to appear before Tribunal
(1)If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
The Tribunal also has power to reschedule a hearing under s.427(1)(b):
427 Powers of the Refugee Review Tribunal etc.
(1)For the purpose of the review of a decision, the Tribunal may:
…
(b)adjourn the review from time to time; or …
Under ss.414, 414A and 420:
414 Refugee Review Tribunal must review decisions
(1)Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
414APeriod within which Refugee Review Tribunal must review decision on protection visas
(1)If an application for review of an RRT‑reviewable decision:
(a)was validly made under section 412; or
(b)was remitted by any court to the Refugee Review Tribunal for reconsideration;
then the Refugee Review Tribunal must review the decision under section 414 and record its decision under section 430 within 90 days starting on the day on which the Secretary gave the Registrar the documents that subsection 418(2) requires the Secretary to give to the Registrar.
(2)Failure to comply with this section does not affect the validity of a decision made under section 415 on an application for review of an RRT‑reviewable decision.
…
420Refugee Review Tribunal’s way of operating
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
In the present case, the Tribunal received on 31 August 2009 a “Response to Hearing Invitation” which indicated that both applicants would take part in the hearing scheduled for 24 September 2009. However, on 18 September 2009, Mr Huang sent a letter to the Tribunal stating:
We are acting as the Migration Agent on behalf of the above‑named applicants in relation to above‑mentioned application.
Instructed by the applicants, we would like to provide following documents and information for your kind consideration:-
·Certified copy of a letter from Dr. Yee King Ng, a Registered Psychologist
·Certified copy of a letter from Dr. Elvin Cheng, a family doctor of [the applicant wife]
We are informed that considering her current particularly difficult situation, [the applicant wife] may be unable to attend the Tribunal’s hearing scheduled on 24 September 2009.
Should you have any questions, please do not hesitate to contact me as soon as possible.
The enclosed report from Ms Ng, a registered psychologist, is dated 16 September 2009. It states:
Dear Mr [applicant husband],
Re: Psychological state of your wife, [name] [date of birth]
[Your wife], aged 34, came to my psychological service of Lidcombe with your companion on 10th September of 2009. She was referred by their family doctor, Dr. E. Cheng under the Mental Health Care Plan of Medicare.
In the session, [your wife] always displayed marked blunt facial expression with the preoccupation of ruminating delusional thoughts. She repeatedly told that she was afraid of being caught by policemen so she must stay at her place. When talking about her two children who are still living in China, she turned very sad, tearfully saying ‘The police will not allow them to come to Australia’ ‘I cannot come back to see them’. She looked very frightened about her life. She insisted that she was normal without any mental health issue.
With the data collection from you and the observation during the interview, [your wife’s] mental state can be analysed as follows: [Your wife] owned a small business in her own town in China. Last year, she was caught by the Police as the result of the dissemination of promotional pamphlets. She was then imprisoned for several months. This year she came to Australia in July. She misses her two children aged 13 and 9 very much. She may be undergoing the stress of adjustment to a new country which is of total cultural and linguistic difference from her own. In this new environment she has no relatives and friends to support her. The level of her anxiety is probably soaring with the paranoiac fear from the accusation experienced in China. Thus she may feel insecure and stay alone. Meanwhile, she has extended the delusional fear that she is no longer able to see her two children. As a result, she is very helpless and hopeless. In such confused mental state, she has plausibly lost the ability to maintain the normal functioning of daily life as you described.
[Your wife’s] mental state is highly concerned. As you are her carer, the following suggestions are for your consideration. She needs regular check‑ups with the family doctor and continues the psychological support. You may discuss with your family doctor to see whether it is further helpful to consult with psychiatrist. If in emergency, it can call the Police on the phone 000 and the Auburn Mental Health Service on (02) xxxx xxxx. The phone number of Telephone Interpreting Service (TIS) is xxx xxx.
The enclosed handwritten letter of Dr Cheng, a general practitioner, is dated 16 September 2009, and states:
To whom it may concern,
Re: [The applicant wife]
[date of birth]
This is to certify that [the applicant wife] has been suffering from insomnia, feeling sad most of the time, impaired concentration & short‑term memory, getting easily irritable with excessive anxiety at times.
Her symptoms are consistent with “Anxiety Depression” and she is unfit for court proceedings.
Thankyou.
On 21 September 2009, Mr Huang wrote to the Tribunal with a request for an indefinite adjournment of the hearing. He said:
Considering current health situation of the applicant, we are instructed to request that the Tribunal could kindly postpone the hearing scheduled on 24 September 2009. …
The Tribunal responded on 23 September 2009 with two letters. The first letter informed the applicants, and Mr Huang, that “the Presiding Member has agreed to the request and the hearing has been postponed”. The second letter was framed as an invitation to provide information in writing in accordance with the formalities provided under ss.424(2) and 424A. The letter said:
…
You are invited to provide the following information in writing:
·A report from a qualified medical practitioner in relation to your medical condition, its treatment and prognosis and the effect this may have on your capacity to give oral evidence to the Tribunal at a hearing.
·The expected duration of any illness which affects your capacity to give oral evidence to the Tribunal.
·Any other medical information as to your capacity to give oral evidence to the Tribunal at a hearing.
·Any other information which may be relevant to the Tribunal’s review.
The information should be received at the Tribunal by 7 October 2009. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator. …
(emphasis in original)

Mr Huang responded by letter on 1 October 2009, saying: “please kindly find enclosed medical document provided by the applicant”. No other documents or submissions concerning how the Tribunal should proceed were made. The enclosure was a typed letter from Dr Cheng dated 30 September 2009, which stated:
To Whom It May Concern,
Re: [The applicant wife]
[date of birth]
I am a medical practitioner registered in New South Wales.
My qualifications are M.B.B.S. & BSc (Med).
I have read the Expert Code of Conduct within the said rules and agree to be bound by it.
I started seeing [the applicant wife] on 9‑9‑09. She is a 32 years old lady from China. She came to Australia in April 2009.
She presented to me with a few months history of insomnia, feeling sad most of the time, and getting easily irritable with excessive anxiety. She has been socially withdrawn, with impaired concentration and short‑term memory.
Mental state examination revealed that she was extremely withdrawn, displaying extreme anxiety at times with recurrent preoccupation of ruminating delusional thoughts.
Her symptoms and signs are consistent with the diagnosis of major depression with excessive anxiety and possibly psychotic features.
She has been treated with anti‑depressant (Lexapro 10mg). Her prognosis is not good, and she will require medication as well as psycho‑counselling for ongoing treatment.
As a result of her illness, her concentration and judgement is severely impaired, and she will not be fit to give oral evidence to the Tribunal at a hearing.
The Tribunal then informed the applicants that it proposed to conduct a hearing to which the applicant husband was invited, and then to proceed to make a decision without “obtaining oral evidence” from the applicant wife. This was conveyed in two letters dated 16 October 2009, of which one was the usual form of invitation to a hearing on 6 November 2009, addressed only to the applicant husband. The Tribunal’s second letter was addressed to both applicants, and stated:
INVITATION TO PROVIDE INFORMATION – MS [APPLICANT WIFE] AND MR [APPLICANT HUSBAND]
I am writing about your application for review of a decision on a Protection (Class XA) visa.
The information in relation to [the applicant wife’s] medical condition indicates that she is suffering from “anxiety depression”, major depression with anxiety and possibly psychotic features. She is on an anti‑depressant (Lexapro 10mg).
The letter from Dr Elvin Cheng, dated 30 September 2009 indicates that [the applicant wife] is extremely withdrawn, “displaying extreme anxiety at times with recurrent preoccupation of ruminating delusional thoughts”. Her prognosis is not good and she will require on‑going treatment. As a result of her illness she will not be unable [sic: able] to give oral evidences at a tribunal hearing.
The letter from Yee King (Sally) Ng, a registered psychologist, dated 16 September 2009, states that [the applicant wife] “is very helpless and hopeless”, is in a confused mental state and “has plausibly lost the ability to maintain the normal functioning of daily life…”.
The Tribunal has formed the view that [the applicant wife] is unable to properly give oral evidence to the Tribunal at a hearing. This situation is likely to continue for the foreseeable future. The Tribunal has therefore decided to proceed to make a decision in the matter without obtaining oral evidence from her.
The Tribunal is obliged to extend an invitation to give evidence and submission at a hearing to the second applicant, [the applicant husband]. The Tribunal will therefore set the matter down to hear evidence and submissions from him. He may wish to take that opportunity to provide information to the Tribunal in relation to [the applicant wife’s] review.
You are invited to provide the following additional information:
·Any further information which may be relevant to the Tribunal’s review.
Your additional information should be received at the Tribunal by 30 October 2009. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator. …
(emphasis in original)
No objection nor any other comment on the course proposed by the Tribunal was received by the Tribunal from Mr Huang or the applicants.
On 18 October 2009, Mr Huang returned a “Response to Hearing Invitation”, indicating that the applicant husband would attend the hearing on 6 November 2009. He did attend, unaccompanied by his agent or his wife. The hearing record notes that the wife was not in attendance because “sick”, and it appears that copies of the medical reports previously sent to the Tribunal were tendered.
A transcript of the hearing is not in evidence, and I have no reason not to accept the description given by the Tribunal. The husband gave some evidence that the wife had been harassed by police, and detained for two months. He said that his family were Buddhist, and he made no claims to be a Christian or to have been involved in his wife’s church activities. He said that his wife was not ill in China. The Tribunal raised issues arising from the delegate’s description of her interview on 6 July 2009. It said:
60.The second applicant was advised of the relevance of these matters in terms of the Tribunal’s possible findings about credibility and the genuineness of the protection claims. He said that he would give a written response after the hearing. He did say that the primary visa applicant has not been well and was suffering mentally from serious depression and her memory was affected. On the day of the interview he was not allowed to stay with her.
61.The Tribunal asked the second applicant when he first became aware of the primary applicant’s mental issues. After a very long pause, he said about three months after they arrived in Australia. It has been getting worse since. The Tribunal asked when she first sought help and after another long pause, he said in about June 2009 when she went to a doctor whose name he does not know. She was given a script for some medicine. She then went to Dr Cheng and the psychologist. Dr Cheng referred her to the psychologist. The primary applicant sees the psychologist every fortnight, the last time about two weeks ago. She sees Dr Cheng every week to get a script. She is still waiting for the next appointment with the psychologist. She is seeing the doctor again this Saturday and he is going to refer her to another doctor.
62.The Tribunal asked whether the primary applicant had practised her religion in Australia. He said she had not but would when she was better.
The Tribunal then identified various discrepancies in the husband’s own evidence. It raised a concern that it would be difficult for people who were adversely known to the PRC authorities to leave China. It also said:
70.The Tribunal took the second applicant to the two medical reports for his wife. It explained that these would be considered by the Tribunal as to whether they supported the applicant’s protection claims. The Tribunal explained that the letters in themselves did not necessarily support the claims. Some of the terminology in the letters indicated that she had a mental illness which was delusional and persecutory and that such an illness could indicate that the primary applicant’s claims were in fact a part of her mental illness rather that actual events.
Following the hearing, the Tribunal sent to the applicants a long letter dated 19 November 2009, which invited their written responses to various discrepancies in the evidence, and which might cause the Tribunal to conclude that they were not truthful or credible witnesses. It also made reference to the medical reports:
…
·The Tribunal will consider the two medical reports regarding your health, from Dr Cheng and Ms Ng, as to whether they support your protection claims. The letters in themselves did not necessarily support the claims. The terminology in the letters indicate that you have a mental illness which is delusional and persecutory in nature. Such an illness could indicate that your claims were in fact a part of your mental illness, rather than based on actual events.
This information is relevant to the Tribunal’s review, as it may lead the Tribunal to conclude that your claims are related to your mental illness and not to actual events in China. The Tribunal may conclude that you would not face a real chance of persecution for a convention‑based reason if you were to return to China. The Tribunal may conclude that you do not have a well‑founded fear of persecution for a convention‑related reason. …
(emphasis in original)
Mr Huang responded to the letter on 3 December 2009, which was the last date allowed by the Tribunal. He enclosed a statutory declaration of the husband, but made no submissions about the merits of the case nor the procedures being followed by the Tribunal. The statutory declaration attempted to meet the points raised by the Tribunal. In relation to the medical reports, it said:
9.I may understand the Tribunal’s concern about the two medical reports regarding my wife’s health from Dr Cheng and Ms Ng. However, it is no doubt that my wife was indeed a health person before she came to Australia; otherwise, it would be impossible for her to play an active role in the Local Church and it would also be impossible for her to run a clothing shop in [the province] for so many years.
The Tribunal made a decision on 18 December 2009, affirming the delegate’s decision. In its statement of reasons, the Tribunal recounted the course of the proceedings before it, including the circumstances in which it had not taken any oral evidence from the applicant wife.
In its “Findings and Reasons”, the Tribunal concluded that the applicants were able to leave China without any problem because the wife was “not adversely known to the authorities”. In relation to her refugee claims and her husband’s evidence, it concluded:
112.The Tribunal finds that the applicant is not a reliable witness, based on her contradictory statements to the Department and her lack of knowledge of the church and its beliefs and activities. It is not prepared to accept her evidence alone in establishing her claims as being genuine.
113.The Tribunal finds that the second applicant is not a reliable or credible witness. His evidence was contradictory and inconsistent. It is not prepared to accept his evidence as support for the applicant’s claims.
The Tribunal explained these conclusions, and rejected all the elements in the wife’s claims to have been persecuted and to fear persecution if she returned to China. It is unnecessary to examine this reasoning, since no challenge to it is now made under the grounds of jurisdictional error argued by the applicants’ counsel. I note, however, that the Tribunal considered the implications of the applicant’s mental illness in its assessment of her claims:
87.There are a number of inconsistencies in the evidence provided by the applicant in her protection visa application, her statutory declaration and her interview with the Department.
88.The Tribunal considered whether the applicant was affected by a mental illness at the time of the Departmental interview and whether this may have impacted adversely on her responses to questions and the information she provided at that interview.
89.The report from Dr Cheng states that the applicant, at the time of the letter (30 September 2009) “presented with a few months history of insomnia, feeling sad most of the time and getting easily irritable with excessive anxiety. She has been socially withdrawn, with impaired concentration and short‑term memory…”. There is no clear indication as to when these symptoms first appeared, other than “a few months” and no indication of the time of the onset of the major depression with excessive anxiety and possibly psychotic features.
90.The second applicant said in his evidence that he had first noticed the applicant’s mental problems about three months after their arrival in Australia, which is about mid‑July 2009. It has been getting worse since. He said that she first sought help in about June 2009 when she went to a doctor whose name he does not know.
91.The Tribunal is of the view that the information about the applicant’s mental state prior to September 2009 is vague and unspecific. While the applicant reported “some months” of symptoms to Dr Cheng in September 2009, there is no actual assessment or diagnosis at this time. The second applicant stated that he noticed her symptoms about three months after they arrived and said that she sought help from a medical practitioner. However, he could not provide this person’s name and there is no evidence from any medical practitioner regarding any consultation in June 2009.
92.The Tribunal is therefore not satisfied that, at the time of the Department interview, the applicant was suffering from a mental illness or that she was adversely affected by any mental problems at the time of the Department interview. The Tribunal finds that the applicant was not suffering from any mental illness which would affect her recollection of events at the time of the Department interview.
93.The Tribunal also considered whether there is any information to show that the applicant was suffering from a mental illness at the time she provided the information in her protection visa application or the statutory declaration. As noted above, the only information indicating that the applicant was suffering from any mental illness prior to September 2009 is her own reporting of symptoms to Dr Cheng, and the second applicant’s evidence that he became aware of her symptoms about three months after they arrived in Australia (that is, mid‑July 2009.) Her protection visa application was completed on 20 April 2009, within ten days of her arrival. Her statutory declaration was provided on 27 May 2009. Both of these documents predated any indication of her having a mental illness and the Tribunal is of the view that she was not suffering from a mental illness at the time of writing these documents. The Tribunal finds that at the time she provided the information, she was not suffering from any mental illness which would affect her recall of events.
…
114.The Tribunal considered the report from the applicant’s psychologist, Ms Ng, who saw the applicant on 10 September 2009. That report is addressed to the second applicant. In it, the psychologist states “With the data collection from you and the observation during the interview…”, which indicates that the events set out in the letter, which repeats part of the applicant’s protection claims, were reported by the second applicant and are based on his information. There is no indication from the psychologist as to whether these claims are in fact accurate.
115.As the Tribunal is of the view that the second applicant is not a truthful or credible witness, it is not prepared to accept the reporting of events in the psychologist’s report dated 16 September 2009, which is based on his information, as being evidence that the events actually occurred.

Extending time for the application for judicial review

The application was filed on 22 March 2010, which was approximately two months after the expiry of the 35 day time provided by s.477(1) of the Migration Act. The Court has power to extend that time under s.477(2) if it is “satisfied that it is necessary in the interests of the administration of justice to make the order”. I was referred to various authorities in this Court which have discussed the relevant considerations, including those of Barnes FM in SZNZU v Minister for Immigration & Anor [2010] FMCA 197, Nicholls FM in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, and myself in SZNZI v Minister for Immigration & Anor [2010] FMCA 57.
The applicant wife said in an affidavit:
2.At the time of the Tribunal’s decision and for some months afterward I was suffering the same symptoms of the mental illness described by Dr Cheng in her report of 30 September 2009 and Sally Ng in her report of 16 September 2009, copies of which are annexed and marked “A”.
3.As a result of these symptoms I was not well enough to understand what to do or to be able to do what was necessary to commence proceedings.
4.My husband did not tell me what needed to be done and he wouldn’t do it himself or help me as I believe he was worried about the effect the proceedings and their cost would have on my mental health.
In cross examination, she maintained that she was unaware of the outcome of the Tribunal’s review for a period after its decision, although she conceded that her husband had been aware of the decision and had discussed it with Mr Huang. After her health recovered as a result of medication given to her by her doctor, she received advice to go to court and was assisted to do this by Mr Huang.
The Minister’s counsel did not challenge the applicant wife’s claims to have been ill, and I would not disbelieve the applicants in this respect, notwithstanding that the medical evidence is not compelling. Counsel submitted, however, that it had always been possible for the husband to make a decision to commence proceedings, and that no satisfactory explanation was given why he did not do so.
Balancing all the considerations, including my examination of the merits of the application in the course of a final hearing, I have concluded that it is in the interests of justice to extend time under s.477(2). The length of delay is not long, and I have sympathy with the situation facing the husband and wife in making a decision while the wife was being treated for mental illness. I would not characterise the explanation for the delay as unacceptable.
I consider that the submissions of the applicants’ counsel identified issues of real merit, concerning the legality of the procedures followed by the Tribunal. If they are correct, then the applicant wife may appear to have suffered substantial injustice as a result of the Tribunal making a decision without taking oral evidence from her. Notwithstanding that I have concluded that the Tribunal’s decision was not invalid, it is conceivable that another judge might reason differently. The procedural implications of the rights afforded by s.425 of the Migration Act arising from SCAR (supra) bearing on the present case are not, in my opinion, covered by unarguably settled jurisprudence of the Federal Court. I consider that the implications of s.476A(3)(a) of the Migration Act which I took into account in Yu v Minister for Immigration & Anor [2009] FMCA 1161, (2009) 236 FLR 251 at [40]‑[41], are relevant in the present case.
In all the circumstances, I have concluded that I should extend time under s.477(2), and accept the competency of the substantive application before me. I shall therefore address the grounds of review relied upon by counsel on a final basis.

The grounds of review

Counsel for the applicants relied upon grounds set out in an amended application:
Grounds of Amended Application
That the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of s 425 Migration Act 1958:
Particulars
1.On 16 October 2009 the Tribunal decided to proceed to make a decision on the applicants’ application for review without obtaining oral evidence from the first applicant (who was also the primary applicant in the application for review of the delegate’s decision) on the basis of its view that the first applicant was unable to properly give oral evidence to the Tribunal at a hearing.
2.In acting upon this decision the Tribunal failed to provide the first applicant with a real opportunity to appear before it to give evidence and present arguments when the first applicant was fit to do so.
3.The first applicant did not give her consent to the Tribunal deciding the review without the first applicant appearing before it to give oral evidence.
4.Prior to making its decision the Tribunal did not identify to the first or second applicants that it was considering making a decision without obtaining oral evidence from the first applicant.

In his written submissions, counsel invoked the proposition made in SCAR (supra) at:
33Pursuant 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].
This proposition appears to have continuing support in the Full Court, and it was not invited to overrule SCAR in SZNVW (supra) (see [31]). However, SZNVW shows, in my opinion, a current disposition in the Federal Court to confine the operation of the propositions made in SCAR by reference to the terms of the Migration Act, and of s.425 in particular. There remains some uncertainty when an applicant will be denied a ‘meaningful opportunity’ by reason of mental impairments when attending a hearing purportedly held under s.425. This does not need to be explored in the present case, since it is common ground that the present applicant wife did not attend a hearing which could be characterised as providing that opportunity. However, the Minister submitted that the Tribunal had afforded her the statutory procedures which would have allowed her that opportunity, if she had been fit to enjoy it, and that the Migration Act empowered the Tribunal to proceed to make a decision once it decided that she was unfit to attend a hearing and would remain so for the foreseeable future.
Counsel for the applicants, as I understood him, did not submit that the present Tribunal’s announcement on 16 October 2009, that it would “proceed to make a decision in the matter without obtaining oral evidence from her”, was in direct contravention of any specific procedure directed by the Migration Act, in particular a procedure governing the adjourning or postponing of a hearing in circumstances such as the present.
On authority binding this Court, no special procedure was required. The Tribunal had complied with its formal obligation to give one notice of a hearing offering the opportunity required under s.425, and it was not obliged to repeat the formal procedures in relation to any adjourned or postponed hearing. Nor were the Tribunal’s powers of rescheduling under s.426A relevant, in circumstances where the Tribunal did not purport to exercise powers available where an applicant fails to attend without being excused by the Tribunal (see Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572, [2006] FCAFC 152 at [59]‑[62]).
The Tribunal undoubtedly did have a general discretion to adjourn, postpone, or reconvene a hearing originally appointed under s.425. It was held in SZFML:
82It is implicit in the statutory scheme that the Tribunal’s invitation to a person to appear, where it has been accepted, cannot be compromised by rescheduling the appointed hearing to another date on unreasonably short notice. However it is not suggested that that occurred here. It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time. If express authority were necessary it would be provided by s 427. In any event there is an implied incidental power for the Tribunal to do so in order to give practical effect to its obligation to provide a hearing. The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character. Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s 425A.
The submissions of counsel for the applicants were equivocal whether the implications in s.425 found in SCAR extended to denying the Tribunal any power to complete its review for so long as an applicant was unfit to participate in a hearing. However, in my opinion, the weight of authority is that the implications of s.425 do not have this effect, nor is such an implication found in any other section of the Act.
Such a construction would be inconsistent with the statutory objectives of speedy finality suggested in ss.414, 414A and 420, which I have extracted above. A concern that the reasoning in SCAR might imply an inability ever to complete a review appears to be raised by Branson J in NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 56, [2003] FCA 983 at [51]‑[52], which is cited with approval by Keane CJ in SZNVW (supra) at [33]. However, I accept submissions of the Minister’s counsel that the circumstances addressed in SCAR, NAMJ and SZNVW did not raise that issue, and these judgments should not be regarded as having reached any conclusion on it.
Nor do I consider that the High Court should be understood as addressing the consequence of unfitness to attend a hearing, when in Sok v Minister for Immigration & Citizenship (2008) 238 CLR 251 at [38], their Honours observed in relation to the mirror provision to s.425:
38The same conclusion can be expressed in terms drawn from reg 1.23. In those terms it may be said that the Tribunal has not undertaken its task of considering whether the alleged victim has suffered relevant domestic violence before either, in exercise of the power given by s 360(2)(a), it decides the review in the applicant’s favour on the basis of the material before it, or it exercises the power given by s 360(1), and invites the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. If the Tribunal is not satisfied on the material before it that it should decide the review in the applicant’s favour, it must give the applicant the hearing required by s 360(1). And if that is the Tribunal’s obligation, the Tribunal cannot be said for the purposes of reg 1.23 to have considered the issues raised on the review, in the manner required by the Act, until it has issued the requisite invitation under s 360(1) and, if the invitation is accepted, heard the evidence and arguments that are advanced. (emphasis in original)
(compare also the High Court’s references to s.425 in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [27], and Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [32]).
I accept that the preferable construction of the Act was taken by Gyles J in an observation in Applicant S296 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1166 at [6]:
6I take that view not because of any general fault in the reasoning of the Tribunal, but because of the wider context in which that decision came to be made. There can be no general disagreement with the proposition that the Tribunal is under a duty to deal with a review in a ‘fair, just, economical, informal and quick’ manner (s 420). There will be circumstances where the incapacity of an applicant is such that the review by the Tribunal simply must take place without the benefit of oral evidence or oral contribution from that applicant.
I also accept that observations of Gummow and Hayne JJ in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, [2004] HCA 32 at [45] are consistent with Gyles J’s opinion that the Tribunal has power to make a decision, notwithstanding a lack of competency in a refugee applicant to give evidence at a hearing of the Tribunal within a reasonably foreseeable period:
[45]The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the tribunal must be convinced before an applicant can take part or continue to take part in proceedings before the tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead. Section 420(2)(a) of the Act expressly provides that the tribunal is not bound by the rules of evidence. The phrase “the rules of evidence” is taken to include both the common law rules of evidence and the Evidence Act 1995 (Cth). The only requirements that could be described as competency requirements are that an application for review by the tribunal can only be made by a non‑citizen who is the subject of the primary decision (by the minister’s delegate) and who is physically present in the migration zone when the application for review is made. The Act permits an application for a protection visa to be made by any person who is in Australia and who is not a citizen of Australia. That is not to deny that the rules of procedural fairness may, in particular circumstances arising in individual cases before the tribunal, require some special steps or procedure to be followed. But there was no denial of procedural fairness in the present case.
Ultimately, counsel for the applicants relied primarily upon submissions which accepted that the present Tribunal had power to proceed to make a decision notwithstanding the unfitness of the applicant wife, but which argued that requirements of procedural fairness attending that power were not observed in the circumstances of the present case.
The Minister’s counsel answered these submissions partly with reliance upon the ill‑defined exclusion of “the requirements of the natural justice hearing rule” under s.422B(1) in relation to “the matters” dealt with in the provisions of Division 4 of Part 7 of the Migration Act.
The extent to which s.422B(1) excludes the statutory implication of normal obligations of procedural fairness remains uncertain in relation to the Tribunal’s discretion to adjourn and reconvene its hearings. I am inclined to think that the High Court’s recent discussion of a similar provision in Saeed v Minister for Immigration & Citizenship [2010] HCA 23 at [35]‑[42] might allow an analysis which would not exclude normal implications of procedural fairness in relation to the adjourning of hearings outside the confines of s.426A (cf. Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]). That analysis might conclude that s.422B(1) is “not addressed” to the Tribunal’s discretion under s.427(1)(b) to “adjourn the review from time to time”, nor to an implicit power to finalise a review without taking evidence from an incapacitated applicant. Alternatively, an analysis could build upon suggestions in recent High Court judgments that s.425(1) itself deals implicitly with the ‘matter’ of procedural fairness in relation to the conduct of hearings, by imposing implicit requirements of fair procedure before the Tribunal decides to proceed without taking evidence from an applicant who previously expressed a desire to attend a hearing.
Both of these analyses are fraught with complexities, and my previous efforts at extrapolating implicit rights to procedural fairness from the High Court’s references to s.425 received no support from the Full Court in SZNVW. Ultimately, I have concluded that I do not need to reach conclusions as to the effects of s.422B(1) in relation to the procedures of the present Tribunal.
This is because I have concluded that no procedural unfairness attended the present Tribunal’s decision to proceed to make a decision without taking evidence from the applicant wife, on the assumption that rights of fair procedure can be implied. Such an implication must, on any view, impose only such procedural obligations on the Tribunal which are consistent with the statutory scheme which governs its proceedings, and are appropriate to the particular circumstances of the matter. As I have concluded above, the statutory scheme includes a statutory obligation on the Tribunal to complete its review without undue delay, even where an applicant becomes incapacitated from participating in a hearing for the foreseeable future.
In support of my opinion that no procedural unfairness has been established in the present case, I make the following points:
i)At all times the applicants were assisted by a migration agent who cannot be assumed to have been inexperienced in dealing with the Tribunal in relation to refugee applicants, and who has not been called to give evidence to explain his failure to object to the course taken by the Tribunal.
ii)It was the applicants, not the Tribunal, who raised the issue of the wife’s capacity to enjoy the right required to be offered under s.425. Their agent made an application to ‘postpone’ the hearing on medical grounds for an indefinite period. When invited by the Tribunal to provide evidence showing the “expected duration of any illness which affects your capacity to give oral evidence”, they provided an opinion which was totally unqualified as to the future, that “she will not be fit to give oral evidence to the Tribunal at a hearing”.
iii)Implicitly, in my opinion, the communications from Mr Huang leading to the Tribunal’s letter of 16 October 2009 invited the Tribunal to conclude that the applicant wife would be unfit to give evidence for the foreseeable future, and invited it to devise procedures for completing its review on that basis.
iv)There is no evidence that either of the applicants, or Mr Huang, did not anticipate that the Tribunal would then announce the procedure set out in its letter of 16 October 2009. Nor, for that matter, is there any evidence presented to the Tribunal or to the Court that, after the Tribunal’s announcement, they believed that the foreshadowed procedure would operate unfairly or to the prejudice of the applicant. They had ample opportunity to present further medical evidence to the Tribunal to challenge the Tribunal’s conclusions of fact, or to otherwise seek to alter the procedure followed by the Tribunal leading to its decision on 18 December 2009.
v)In this respect, I consider significant the absence of protest or further applications for rescheduling of hearings or deferral of decision after the letter of 16 October 2009. Instead, there was active involvement in procedures which patently were designed to lead to a decision being made without waiting to see if the wife recovered her health. Once again, I take into account that the applicants were represented by a migration agent who is not shown to be inexperienced or bashful in making applications to the Tribunal on behalf of his clients.
vi)The situation is, in my opinion, one where there is an evidentiary onus on an applicant alleging procedural unfairness, to put evidence before the Court showing that the procedures adopted by the Tribunal in and following its letter of 16 October 2009 resulted in ‘practical injustice’ (cf Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]‑[38], [106], [122], [149]). In the circumstances, I am not prepared to assume or infer that an injustice must have occurred (cf NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89, [2003] FCAFC 262 at [17]; Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541, [2003] FCAFC 298 at [91] and [97], and WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511, [2003] FCAFC 171 at [56]‑[58]). In particular, I would not assume that Mr Huang or his clients presented their medical evidence to the Tribunal under any misapprehension that it might result in the Tribunal deciding the matter without taking oral evidence from the applicant wife. Nor would I assume that the procedure adopted by the Tribunal was not intended by them, or was unwelcome to them.
I am therefore not satisfied that any departure from procedural fairness occurred in relation to the applicant wife’s right to attend a hearing conducted under the relevant provisions of the Migration Act. I am not satisfied that its decision was affected by any jurisdictional error arising from the procedures it adopted.
I am not otherwise satisfied that the Tribunal failed to comply with any jurisdictional obligation before making its substantive decision on 18 December 2009. The evidence suggests that it gave full consideration to the evidence presented by the applicant wife as to her unfitness in relation to both its procedural and substantive decisions. I can find no evidence that its exercise of its discretion to proceed to make a decision without receiving oral evidence from her at a rescheduled hearing miscarried.
The application must therefore be dismissed. It is agreed that costs should follow the event.

I certify that the preceding sixty‑one (61) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 26 October 2010