Federal Court of Australia

Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant file and serve written submissions limited to one page on or before 6 October 2023 in relation to the costs associated with the re-opening of the appeal.

3.    The first respondent file and serve written submissions limited to one page on or before 11 October 2023 in relation to the costs associated with the re-opening of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made by a judge of this Court, dismissing with costs an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, now known as the Minister for Immigration, Citizenship and Multicultural Affairs, not to revoke the cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth). The appellant does not challenge the dismissal by her Honour of a further part of his application seeking a writ of habeas corpus.

2    The sole ground of appeal is that the primary judge erred in concluding that the Tribunal had not fallen into jurisdictional error by failing to carry out its statutory task, namely to ensure that the appellant had a reasonable opportunity both to present his case and to inspect documents to which the Tribunal proposed to have regard. That ground of appeal closely mirrors the sole ground of judicial review pressed before her Honour. The terms of the judicial review ground and the appeal ground in turn closely mirror the terms of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), upon which the appellant relied and continues to rely. Section 39(1) relevantly provided and continues to provide that:

… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

3    The background leading to the impugned Tribunal decision was summarised by the primary judge at J[3]-[10], and is not in dispute. That summary may therefore conveniently be reproduced as follows:

[3]    There is no real dispute about the applicant’s background. He was born in Ethiopia on 10 June 1986. When the applicant was three years of age, his mother, his father, and his aunt, who I will call AM in these reasons, fled Ethiopia to a refugee camp in Kenya. He lived there until 1997.

[4]    The applicant lost his mother in 1989, and last saw his father in 1991, subsequent to which he was cared for and raised by AM. In Kenya, AM met and married SJ. SJ left Kenya for New Zealand in 1994. Three years later, in 1997, AM, with the applicant, joined SJ in New Zealand as refugees. He obtained New Zealand citizenship, and remains a New Zealand citizen.

[5]    In 2000, AM and SJ’s marriage ended, and AM and the applicant relocated to Australia. At that time, the applicant was around 14 years of age.

[6]    On entry into Australia, the applicant was granted a Class TY (subclass 444) visa.

[7]    The applicant had not received any formal education while at the refugee camp in Kenya. While in New Zealand, he gained some literacy skills. Once in Australia, he recommenced school, before abandoning it again in year eight.

[8]    On 18 April 2002, the applicant was convicted of his first offences relating to drug use. Between that date and 14 January 2022, when he was taken into custody at the Melbourne Immigration Transit Accommodation detention centre, the applicant has spent the majority of his time in Australia in prison after conviction for various offences, the last of which was on 20 July 2018. This included a sentence on 6 June 2008 of four years’ imprisonment for the offences of intentionally cause serious injury and affray (2008 conviction).

[9]    While in Australia, the applicant’s visa has been purportedly cancelled three times:

(a)    On 15 March 2005, the applicant was notified that a delegate of the Minister had cancelled his visa (first cancellation). That decision was made under s 501(2) of the Migration Act 1958 (Cth). In the decision, the delegate relied on a sentence imposed on 28 May 2004 of 14 months’ imprisonment for the offences of burglary and false imprisonment. On 21 March 2005, he sought review of that decision in the Tribunal, and on 14 June 2005 the Tribunal decided to revoke the first cancellation, and his visa revived.

(b)    On 4 May 2009 the applicant was notified that a delegate of the Minister had cancelled his visa (second cancellation). That decision was also made under s 501(2). For the second cancellation, the delegate relied on the 2008 conviction. On 28 July 2009, the Tribunal decided to revoke the second cancellation, and the applicant’s visa was again revived.

(c)    On 21 July 2016, the applicant was notified that a delegate of the Minister had cancelled his visa (third cancellation). The third cancellation was made under s 501(3A) of the Migration Act. In the decision, the delegate relied on the 2008 conviction. On 8 August 2016, the applicant requested that the Minister revoke the third cancellation. For some reason not explained in the evidence, there was no decision on that revocation request for almost four years. On 24 January 2020, the applicant was notified that his revocation request had been unsuccessful. On 5 February 2020 he filed an application in the Tribunal for merits review of the refusal to revoke the third cancellation. On 1 April 2020, the Tribunal heard the applicant’s application. The applicant filed written closing submissions between 6 and 16 April 2020, with the assistance of another prisoner. On 24 April 2020, the Tribunal affirmed the decision not to revoke the third cancellation (Tribunal decision).

[10]    It is the Tribunal decision, in relation to the third cancellation, that is the impugned decision for the purposes of the applicant’s judicial review application.

4    The arguments advanced before the primary judge, and maintained on appeal, can be divided into questions of law, and questions of characterisation of what took place in light of the legal conclusions reached. The primary judge summarised the competing legal arguments advanced before her Honour about the operation of s 39(1) of the AAT Act succinctly before turning to the conclusions reached about them as applied to the circumstances of the case before her, as follows:

[101]    Counsel for the applicant submitted that s 39(1) contains three requirements: namely, that the applicant be given a reasonable opportunity to:

(a)    present his case;

(b)    inspect any documents to which the Tribunal proposed to have regard in reaching a decision in the proceeding; and

(c)    make submissions in relation to those documents.

[102]    The applicant submitted that the obligation to “ensure … a reasonable opportunity” elevates the obligation to one that is higher than that provided by the common law. Rather than being a “passive by-stander in the hearing as it progresses” (citing National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [65]), the Tribunal must “take reasonable steps to ascertain and satisfy [itself that it is meeting] the statutory threshold”: citing Young and Conway v Chief Executive Officer, Housing [2020] NTSC 59; 355 FLR 290 at [69], [76]-[80]; Varricchio v Wentzel [2016] SASC 86; 125 SASR 191 at [50]. The applicant also relied on the Full Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553. There, by reference to s 425 of the Migration Act, which required the Tribunal to invite the applicant to appear and present arguments relating to the issues arising in relation to a decision under review, the Court held that the fulfilment of that obligation (at [33], [37]):

must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].

…

… s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

[103]    The applicant also relied on SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 as more recent consideration of this point. At [19], by reference to s 425 of the Migration Act, the Court held that:

there may well be circumstances in which the opportunity is lost though the applicant is present in person, for example where the applicant is genuinely distracted by intractable pain or heavily sedated or confused so that he or she is not in a fit state to give evidence or present arguments.

[104]    The applicant identified three reasons, or “external misfortunes”, in addition to the fact he was unrepresented:

(a)    The applicant was, at the time of the Tribunal hearing and when each of his submissions were due, enduring a lockdown in prison during the early part of the COVID-19 state of emergency. The applicant highlighted these limitations to the Tribunal. These conditions had significant repercussions for his well-being and mental health, which must be understood against the applicant’s documented history of significant mental illness.

(b)    The applicant could not read at the level required to meaningfully “inspect” and “make submissions” on documents, especially when those documents were voluminous, new and were first provided to him during the hearing. The applicant also contended that the Minister had failed to comply with the Tribunal’s directions relating to the provision of documents throughout the Tribunal process. Regarding the applicant’s reading literacy and comprehension, the applicant relied particularly on his October affidavit (at [4]):

I’m not good at reading or writing. I only went to school from the age of 9 to 14 years old. I struggle to understand legal documents, even when I can read the words.

The applicant also pointed to similar statements having been made to the Tribunal, as recorded on the Tribunal transcript.

(c)    The applicant sought to adjourn the hearing twice, absent which his ability to fully prepare for the Tribunal process was prejudiced.

[105]    The main contentions made by the Minister were practical ones:

(a)    the Tribunal transcript demonstrates that the applicant “participated meaningfully in the hearing and gave relevant evidence”;

(b)    the Tribunal was aware that there was a “lockdown” in effect at the time of the hearing, the applicant was unrepresented and had not inspected certain documents prior to the hearing, and the applicant had requested adjournments; and

(c)    the applicant’s adjournment requests must be understood in the statutory context of s 500(6L) of the Migration Act, by which certain decisions on review in the Tribunal are taken to have been to be affirmed if the Tribunal has not made a decision within the period of 84 days of notification of the decision under review in accordance with s 501G(1).

(emphasis added)

5    It should be noted that the primary judge’s above summary of the case advanced by the appellant was drawn from his submissions before her Honour, including in particular his primary written submissions which are before this Court. The greater part of his case below was the unsuccessful application for a writ of habeas corpus, which is not further pursued, and other judicial review grounds that were not pressed before her Honour.

6    The main aspect of the appellant’s case on failure to comply with s 39(1) to the point of jurisdictional error, maintained on appeal, turned on the reasonableness of the appellant’s opportunity to inspect, make submissions and present his case with respect to the following documents, to which he did not have access prior to the hearing:

(a)    supplementary “G” documents from his two prior visa cancellations in 2005 and 2009, that had been revoked, principally pertaining to the offences giving rise to those cancellations; and

(b)    documents produced to the Tribunal, apparently in early March 2020, in response to summonses to the Victoria Police, the Victorian Department of Justice and Community Safety and the Victorian Office of Public Prosecutions, including criminal records and witness statements standing behind the offences committed by the appellant after the second visa cancellation was revoked.

7    The above documents are those that J[104(b)], reproduced at [4] (with emphasis) above, is referring to. Those documents, summarised at [6] above, had been sent by the Minister to the prison on 17 March 2020, but were not on-delivered to the appellant. The fact that these documents had not been provided to the appellant was only discovered at the commencement of the Tribunal hearing on 1 April 2020. The Tribunal addressed this late provision of those documents by making orders for post-hearing written submissions, which her Honour found that the appellant had agreed to, expressly rejecting the proposition that what he said on that topic, as recorded on the Tribunal transcript, should not be taken at face value. The orders were for the appellant to provide any further submissions by the following Monday, 6 April 2020, and the Minister to respond by 9 April 2020.

8    After the appeal hearing, it emerged that there was another category of documents, comprising six pages of medical records from Loddon Prison, which had been produced in response to a 27 March 2020 Tribunal summons addressed to Justice Health within the Victorian Department of Justice and Community Safety, which were not before the primary judge, nor in the appeal book. The issues raised by those additional documents were the subject of post-hearing evidence and submissions and are addressed separately below at [44] to [65].

9    On appeal, the appellant urges this Court to regard what was said by him in the context of his literacy limitations, apparently so as to cast doubt upon him genuinely seeking an opportunity to provide further submissions. However, having read the transcript in context, we decline to do so because we agree with the interpretation given by the primary judge, noted above. It is reasonably clear that the appellant gratefully accepted the offer of an opportunity to provide further written submissions as he sought, and subsequently took advantage of that opportunity. One aspect of one of those submissions was critical of what had taken place in the past, but upon careful reading it is readily apparent that, rather than being any criticism of the Tribunal, this was directed to the Minister’s conduct, especially in the delegate making the decision not to revoke his visa cancellation while he was still serving a term of imprisonment.

10    The primary judge was satisfied that the approach taken by the Tribunal, of making provision for post-hearing submissions, did meet the requirements of s 39(1) as identified above. The appellant’s case on appeal is that nothing less than adjourning the Tribunal hearing would suffice to meet the requirements of s 39(1). This is said to have been mandated so as both to enable him to inspect the additional documents, prior to any cross-examination of him upon any of them, and to make oral submissions about them at a subsequent Tribunal hearing.

11    Counsel for the appellant specifically disavows that there would have been any need for his client to provide any written submissions after an adjourned Tribunal hearing that he contends should instead have been ordered, and that, at such a further hearing, only oral submissions on that adjourned date would have been necessary. That submission is made in the context that the further written submissions provided by the appellant to the Tribunal on 6 April 2020, with the apparently considerable and valuable assistance from someone else in the same prison as the appellant, were found by the primary judge to be of a relatively high quality, an observation and conclusion with which we concur.

12    Nonetheless, the live question is not whether the alternative of an adjournment to address the additional documents might in some way have been better than the opportunity given to make further submissions, which seems doubtful, but rather whether the opportunity that was given, and the advantage that was taken of it, meant that the reasonable opportunity to present his case required by s 39(1) was not given, contrary to the conclusion reached by the primary judge.

13    We return to the competing characterisations of what took place below, when considering how the primary judge addressed and resolved them, and in considering the basis upon which it is asserted that her Honour erred. It is first necessary to address the at least implicit contention by the appellant that her Honour erred in the articulation of the legal framework in which the arguments advanced fell to be assessed and resolved.

The legal framework

14    The primary judge (at J[106]) accepted the Minister’s submission that the appellant’s argument as to the scope of s 39(1), namely that it elevated the obligation to one that is higher than the common law, was to be doubted, as that submission was consistent with the authorities the Minister cited, inter alia, of National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 (NDIA v WRMF) at [64] (Flick, Mortimer and Banks-Smith JJ); Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 225 FCR 482 at [32] (Dowsett, Murphy and White JJ); Daw v Minister for Immigration and Citizenship [2012] FCA 705 at [3] (Edmonds J); and Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Smithers, Deane and Fisher JJ, but referring to the judgment of Deane J).

15    The primary judge quoted Jagroop at [32] (endorsed relatively recently in NDIA v WRMF at [64]), to which [33] may be added:

[32]    Section 39(1) of the AAT Act provides:

(1)    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

The obligation imposed by s 39(1) that the Tribunal give every party “a reasonable opportunity to present his or her case” has been described as a “statutory recognition of an obligation the common law would in any event imply”: Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J at 342; De Simone v Commissioner of Taxation [2009] FCAFC 181; (2009) 77 ATR 936 at [15] per Sundberg, Stone and Edmonds JJ. In Sullivan at 343, Deane J said that:

…the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

(emphasis in original)

[33]    Accordingly, the AAT was obliged by both s 39(1) and the common law to ensure that the appellant was given “a reasonable opportunity” to present his case. A reasonable opportunity is not synonymous with “every possible opportunity” or even “every opportunity”. Whether or not an applicant has been provided with the requisite opportunity is to be determined objectively, having regard to all the relevant circumstances.

16    The Full Court in NDIA v WRMF at [65] also quoted with approval the observation about s 39(1) by Flick J in Kohli v Minister for Immigration and Border Protection [2018] FCA 540; 74 AAR 433 at [17]:

The section imposes upon the Tribunal a requirement not only to conduct a hearing in a procedurally fair manner but to “ensure” that a party has such an opportunity. The Tribunal, at least to this extent, is not a passive by-stander in the hearing as it progresses; it is the body entrusted with the responsibility to “ensure” that a party has a reasonable opportunity to present his case.

17    We agree with the primary judge’s conclusion, especially in light of Jagroop at [32] quoted above and followed in NDIA v WRMF at [64], that s 39(1) does not impose any higher obligation than the common law.

18    That said, the language of s 39(1) is helpful because it focuses on the specific question of whether the Tribunal did ensure that the appellant had a reasonable opportunity to present his case, including inspecting documents and making submissions. As the primary judge correctly pointed out in that regard at J[107]:

What is, and is not, a “reasonable opportunity” will of course be highly fact-dependent. It can be accepted that the Tribunal’s discharge of its obligation may well require it in certain circumstances to be proactive, to be flexible and to actively consider the circumstances of a review applicant. All such matters inhere in the concept of what is a “reasonable” opportunity in a specific situation. None require a gloss on the s 39(1) obligation itself.

19    A further feature of the primary judge’s reasoning that is challenged by the appellant concerns the impact of s 500(6L) of the Migration Act, which provides a tight timeframe for the Tribunal in the making of a decision on a merits review application of, inter alia, decisions of a delegate of the Minister under s 501CA(4) of that Act not to revoke a decision to cancel a visa. Section 500(6L) provides that if the Tribunal has not made a decision on the appellant’s application for merits review within 84 days after the day upon which he was notified of the delegate’s decision in accordance with s 501G(1), the Tribunal will be taken to have made a decision to affirm the delegate’s decision. Section 500(6L) has been found to require a decision within that 84-day time period, as distinct from expressing reasons for that decision: Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 at [48] (Logan, Steward and Jackson JJ). That does not mean that a decision could be made without the Tribunal having formed a view as to there being sufficient reasons for doing so, even if those reasons could be provided up to 56 days later as provided by s 43(2A).

20    Section 501G(1) made provision for written notification of the delegate’s decision containing certain information (that was provided), with subsection (3) providing that notice under subsection (1) had to be given in the prescribed manner, in accordance with reg 2.55 of the Migration Regulations 1994 (Cth). In his written application to the Tribunal for merits review, the appellant stated that he had been notified of the delegate’s decision on 31 January 2020, the notice being dated 24 January 2020, and having been sent to him by registered mail. The Tribunal treated the actual date of receipt on 31 January 2020 as the date of notification, and calculated the 84 days from that date as expiring on Friday, 24 April 2020. That was an error because, for the reasons detailed below, the operative date was the deemed notification date of 5 February 2020, five days after the actual date of notification on 31 January 2020.

21    The primary judge said of the impact of s 500(6L) on s 39(1), and the question to be resolved, the following, with which we agree:

[108]    I also agree with the Minister that the content of the Tribunal’s procedural fairness obligations must be seen in the statutory context of s 500(6L) of the Migration Act. This provision, and s 39(1), although contained in two different pieces of legislation, form part of the same overall legislative scheme concerning the conduct of reviews of decisions under the Migration Act by the Tribunal and must be construed as far as practicable to operate harmoniously: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70]. An alternative way to see the relationship is to say that the content of a “reasonable opportunity” in s 39(1) must be construed in light of the terms of s 500(6L). Similarly, the Tribunal must understand the need to discharge its obligations under s 39(1) in a manner compatible with s 500(6L).

[109]    The question is whether the process adopted by the Tribunal involved unfairness to the applicant of a nature or quality which meant that he did not have the reasonable opportunity to be heard, and to present arguments and advance his case on merits review, in the way contemplated by s 39(1), read in the context of other provisions including s 500(6L): see, generally, Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1.

22    The appellant endeavoured to demonstrate that the primary judge’s understanding of both s 39(1) and its interaction with the terms of s 500(6L) was in some way erroneous. We are not so satisfied that is so. To the contrary, we are of the view that her Honour’s articulation of both issues was unquestionably correct and proceed upon that basis.

23    If, as in this case, notification is given by pre-paid post, it is deemed to be received 7 working days after the date of the document unless the recipient proves later receipt: see reg 2.55 of the Migration Regulations, and in particular subregs (1)(b)(ii), (3)(c), as applied by subregs (4), (7) and (9). The 7 working days from Friday, 24 January 2020 expired on Wednesday, 5 February 2020 because of the long weekend on 25 to 27 January and the weekend of 1 and 2 February. There is apparently no provision for taking into account earlier actual receipt of the notice by the appellant, with the deemed notice provisions therefore having the practical effect in this case of extending the time before the 84 days commenced to run by five days.

24    The 84 days from 5 February 2020 therefore expired on Thursday, 30 April 2020, not the preceding Friday, 24 April 2020, a difference of four working days (noting also that the Easter weekend in 2020 was from 10 to 13 April, cutting further into the time available to the Tribunal to make its decision). The Tribunal was therefore labouring under the impression that it had four fewer working days than it really had to make its decision, which would necessarily entail at least forming views about reasons for the conclusions reached, if not necessarily expressing them in writing. Oftentimes a decision-maker will use the process of writing reasons to arrive at a decision. The distinction between making a decision and expressing reasons may not be real or significant in many cases.

25    The appellant contended that the difference between 24 April 2020 and 30 April 2020 was the product of a significant miscalculation and was material. In our view, while it was a miscalculation, it was, in all the circumstances neither significant nor shown to be material. The Tribunal’s decision was made four working days earlier than it had to be. The timetable for submissions ensured that the Tribunal had all the submissions from the appellant and the Minister well before the point at which the delegate’s decision would be automatically affirmed, irrespective of whether that date was incorrectly thought to be Friday, 24 April 2020 or correctly understood to be Thursday, 30 April 2020. The last of the submissions were furnished by the Minister on Thursday, 16 April 2020. The Tribunal was able to make its decision and publish its reasons eight days (six working days) later.

26    The appellant did not avail himself of the option given by the Tribunal to provide further submissions in reply by the next day, 17 April 2020, or at all. At no time did the appellant seek any further hearing, or to advance any further documents.

27    The s 500(6L) calculations could not and did not absolve either the primary judge, or this Court in considering whether there had been error on her Honour’s part, from assessing the substance of what had taken place, in order to ascertain whether there had been a jurisdictional error on the part of the Tribunal by reason of failing to give the appellant a reasonable opportunity to present his case, including in particular by way of inspecting documents and making submissions. It follows that the real question remains as to whether there has been a departure from s 39(1) amounting to jurisdictional error.

28    The relevant jurisdictional error alleged before the primary judge was the alleged failure to comply with s 39(1) by reason of:

(a)    the appellant having to address voluminous additional documentary material that, through the machinations of the prison system, had not been provided to him until that day of the Tribunal hearing on 1 April 2020 (despite this having been raised by him in correspondence), by way of written submissions, rather than by adjourning the hearing; and

(b)    him being cross-examined on certain of that material without first having an opportunity to consider it; and

(c)    the asserted material misdirection regarding the 84-day limit, which we have already rejected.

29    It is convenient to consider the basis for the conclusion reached by the primary judge that there was no error arising from these purported failures, before turning to the appellant’s remaining assertions of error. Her Honour:

(a)    reproduced in full the part of the appellant’s affidavit at [9]-[19], which was under the heading “The Tribunal process”, in which he expressed his concerns about what had taken place, including a reference to not having received the additional documents;

(b)    described other parts of that affidavit (having earlier, at J[104] reproduced above, referred to the parts dealing with the appellant’s reading and writing difficulties);

(c)    made the following findings about the appellant’s affidavit (at J[112]):

I do not accept the applicant’s affidavit evidence entirely at face value; not because I consider he is being untruthful, but rather because he gives that evidence from a position of hindsight, being understandably disappointed and unhappy with the outcome of the Tribunal’s decision. In my opinion he also gives that evidence being understandably dissatisfied with having to conduct his own merits review while in prison, and without a lawyer. I find his complaint, at base, is that he had to conduct his own merits review without a lawyer and from prison. No doubt those are factors the Tribunal needs to be highly conscious of during its conduct of the review, including the review hearing. Those facts may place a person at a disadvantage, but it is not a disadvantage that the Tribunals’ performance of its obligation in s 39(1) can completely remedy. The Tribunal can ameliorate that structural disadvantage but it cannot remove it.

(d)    reproduced and accepted part of the written submissions from the Minister addressing the late provision of the additional documents, and the solution arrived at of allowing for post-hearing submissions, observing and concluding:

[114]    … My impression from reading the transcript of the Tribunal hearing, and the material submitted by the applicant, is that he put his case for revocation as clearly and fully as it could have been put. The Tribunal’s reasons disclose that it was the applicant’s own evidence, and attitude displayed during the hearing to the questions asked of him, together with the Tribunal’s objective assessment of all the material before it in terms of the “chance[s]” given to the applicant in the past and what he done with those “chance[s]”, which ultimately swung the review against the applicant. The basis for the Tribunal’s decision had nothing to do with any perceived inadequacies in the way the applicant present[ed] his case on review. There was no practical injustice.

[115]    I accept it was a very stressful and anxious time for the applicant; his future migration status in Australia was at stake. Any person in his position would experience the kind of emotions he describes, and would feel less able to make a ‘good’ case without a lawyer. Objectively, however, the applicant presented a detailed and careful case for why his visa cancellation should be revoked.

[116]    The Tribunal was conscious of all the applicant’s disadvantages, and accommodated the pre-hearing failures by the Minister and the Prison. As I noted during oral argument, the way the ‘G’ documents were purported to be provided to the applicant was highly unsatisfactory and should not be repeated. Before any hearing, the Minister should take all reasonable steps to ensure documents reach an imprisoned individual, not just that they reach the prison. The prison authorities should ensure that a person’s capacity to participate in a hearing, and exercise their rights to do so that the law affords them, are not compromised by bureaucratic processes within the prison. No doubt the COVID-19 situation had imposed additional burdens on prison authorities. However, the evidence shows a lack of real engagement by the Minister’s legal representative, and by the prison authorities, with the applicant’s undoubted entitlement to participate meaningfully in his merits review.

[117]    In this case, however, the Tribunal accommodated those failures with its directions about post-hearing submissions. It conducted the hearing in a careful and fair way. The applicant made meaningful post-hearing submissions.

[118]    Some specific factual matters have influenced my reasoning on the s 39(1) ground. First, the Tribunal review hearing was held on 1 April 2020, which was a Wednesday, not a Friday as the applicant’s counsel had submitted. The Tribunal then gave the applicant to 5.00 pm on the following Monday to file post-hearing submissions. That is a tight timetable, but I accept the Minister’s submission that the 84 day rule meant the Tribunal had to compress the timing somewhat.

(e)    reproduced the portion of the Tribunal hearing transcript dealing with the grant of leave to give written closing submissions, including the following:

MR KAMAL: All these files, I haven’t had any chance to even - to do anything with it. I’ve got this, it’s a massive paper that I can’t even read that properly but I’ll need someone to help me with it. And from what I remember from today and I if could go back and put a few things together and if I could get an email to you again?

SENIOR MEMBER MORRIS: Yes, Mr Orchard, I think what we’ll do is in the circumstances given that the applicant didn’t get the supplementary G documents until we’d commenced, that the tribunal will give leave to both parties to give written closing submissions.

MR ORCHARD: Yes, Senior Member, yes.

SENIOR MEMBER MORRIS: What I did say, Mr Kamal, I was going to give you until - or we were going to give you until 5 o’clock on Monday.

MR KAMAL: Yes.

SENIOR MEMBER MORRIS: Do you think that will be sufficient time for you?

MR KAMAL: Yes, no worries. Yes, that will be good.

(f)    rejected the submission that the appellant had been railroaded, and found that if he had genuinely thought he could not comply with the deadline, he would have said so (noting that the appellant did comply with that deadline with detailed submissions);

(g)    described (at J[121]) the appellant’s submissions provided before the Tribunal hearing as:

detailed, comprehensive, and very polished written submissions ahead of the Tribunal hearing. I accept he had the assistance of another prisoner in preparing them; all I can say is that the person assisting the applicant provided him with high quality assistance. They were of a comparable standard to those a lawyer might produce.

(h)    described the further submissions provided by the appellant as “logically ordered, persuasively advanced and comprehensive”, concluding:

[127]    Despite the failures of the Minister and the Prison authorities to get the Minister’s post-hearing submissions to the applicant in a timely way, the applicant provided the Tribunal with another set of comprehensive and polished submissions. The Tribunal again accommodated the applicant’s circumstances as described to it: it made further directions on 15 April 2020, allowing the applicant a further opportunity to provide final submissions in reply by 17 April 2020. I agree with the Minister that the correct inference is that these directions were made responsively to the applicant’s communication on 15 April 2020. The applicant made no further submissions in the face of that third opportunity to do so after the hearing. It is difficult to see what more could have been said on his behalf, in any event.

[128]    All that could be said on behalf of the applicant to the Tribunal was said, and said well. In my opinion the accommodation given by the Tribunal during and after the review hearing was sufficient to comply with its obligations under s 39(1).

30    Much is made by the appellant about him being cross-examined on the additional documents before he had an opportunity to inspect them. That criticism does not survive scrutiny. That is because, properly considered, the Tribunal’s decision did not ultimately hinge on the appellant’s responses to his cross-examination on the supplementary G documents. The matters upon which the appellant was cross-examined involved his prior offending, disciplinary matters in prison, including positive drug tests, medical documents regarding his methadone use (recorded in the documents produced in response to a later summons, that we address below), his discussions with a psychiatric nurse (again recorded in the later documents addressed below), and a letter confirming his father was alive and that he had an uncle in New Zealand. The appellant’s answers to this cross-examination were not used adversely by the Tribunal, given his offending had been previously disclosed in the G documents, and the appellant had already made pre-hearing submissions regarding incidents within the prison. The appellant’s medical records did not end up being an issue, as none of what he was cross-examined on was used adversely by the Tribunal, further discussed at [44] to [65] below.

31    The balance of the arguments are mostly, in substance if not in form, an appeal about the merits of the Tribunal having the option (which it did not avail itself of) to adjourn the hearing as a means of enabling the appellant to address the additional documents. Notably, the appellant did not raise this purported solution with the Tribunal, but, instead he agreed to it granting him leave to file written closing submissions. The requisite “opportunity” (under s 39(1)) was required to be a reasonable one, not necessarily an optimal one, noting that it is far from apparent that oral submissions would have been close to as detailed as the written submissions that he was able to furnish. Even if that was not so, the appellant faces at least four distinct hurdles on the objective material relied upon by the primary judge as to what happened at the time.

32    The first hurdle is what was said by the appellant at the time, as reproduced at [29(e)] above, and also reproduced by the primary judge, where he asked, of his own initiative, to be given time to consider that additional material with some help (in context apparently a reference to the person who had been assisting him in prison), taking into account what he recalled about what had happened that day at the hearing, and respond in writing.

33    The second hurdle is that he responded positively to what was proposed by the Tribunal in addressing what he had asked to be able to do.

34    The third hurdle is that he was able to provide written submissions within the time allowed, which her Honour described as being of high quality, a characterisation with which we agree.

35    The fourth hurdle is that he did not, at any time, seek any further hearing either orally or in writing, and made no reference in his affidavit before the primary judge (by which time he was legally represented) to needing or wanting that to take place, noting that what he said at the hearing, and before that and afterwards, indicates that he was not backward in coming forward.

36    In all those circumstances, the argument for the appellant that the Tribunal hearing had to be adjourned, rather than proceed by way of a grant of leave to file further submissions, has an unrealistic quality to it. Moreover, it does not avail the appellant anything to refer to the volume of pages in the additional documents without demonstrating that any of them were used adversely by the Tribunal without him being given an opportunity to comment upon them. While those documents are voluminous, being some 1,000 pages, the great majority of them were of no great moment, being such things as correspondence, and uncontentious material in the sense of recording offences and other events that were not in dispute.

37    During the hearing of the appeal, the appellant did not refer to any of the documents in those 1000 pages or to any material in them. In that context, it is difficult to see any practical consequence that could have operated to affect him in any adverse way, despite the completely unsatisfactory failures of the Tribunal, the Minister and the prison authorities to ensure that he had access to those documents before the Tribunal hearing. Of course, ordinarily, a person in the appellant’s position appearing before the Tribunal at a hearing under s 39(1) of the AAT Act should have access reasonably in advance of that hearing to all material that is before the Tribunal. But, here, leaving aside the issues arising from the failure to provide the appellant with six pages of medical records which we deal with later in these reasons, the Tribunal took a reasonable course to address the apparent difficulties that the appellant faced as a result of not having had access before the hearing on 1 April 2020 to the voluminous supplementary G documents. It gave him the opportunity to review them and make further submissions, which he utilised without seeking a further hearing. This is unlike the situation in a case like Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 8-9 [32]. There, the Tribunal member indicated during the hearing that she would subsequently ask NAFF to comment in writing about detailed country and other information on which she had questioned him. However, instead of giving NAFF any opportunity after the hearing to address his concerns, as the member had foreshadowed she would do, the Tribunal decided the review adversely to him. McHugh, Gummow, Callinan and Heydon JJ said:

[32]    [The member’s] failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.

...

[34]    The entitlement of the appellant to complain about the failure of the Tribunal to complete the review process does not depend on the tender of evidence that he was misled or prejudiced. It is true that in some cases it may be necessary for disappointed applicants for review to file evidence about what steps they would have taken if the alleged breach of procedural fairness had not occurred. But the failure of the present appellant to file evidence about what he would have done had the Tribunal member’s promise been fulfilled is not fatal to the appeal for at least one reason specific to the present case. While the appellant knew that the foreshadowed questions would relate to inconsistencies in what he had said about the detentions, it would not have been possible for him to file an affidavit stating what answers he would have given to particular questions without knowing what the questions would have been. He could not anticipate what material he would be asked to supply, nor could he anticipate how any particular material to be requested would relate to the potential lines of reasoning of the Tribunal member, and hence he could not anticipate what he might usefully say on the subject generally.

(emphasis added)

38    Here, the appellant knew what was in the supplementary G documents, at least after the hearing, made post-hearing submissions and could have identified (but has not done so) what he would have done or told the Tribunal differently had it adjourned the hearing to a date after 1 April 2020.

39    In all the circumstances, the assertion of unfairness in the process adopted by the Tribunal in order to impugn the conclusions reached by the primary judge are not made out.

40    The next allegation of error on the part of the primary judge is that it is said that her Honour erred at J[112] in characterising the complaints in the appellant’s affidavit as being given from a position of hindsight in being disappointed with the outcome. This is asserted to be wrong because of the complaints he made about not getting documents prior to the Tribunal hearing. With respect, that complaint does not fairly address the point that her Honour was making about [9] to [19] of the appellant’s affidavit before her Honour, reproduced at J[110]. Her Honour was evaluating the complaints the appellant had about the Tribunal process in those paragraphs of his affidavit. The primary judge made an entirely reasonable finding that in substance his complaint was having to conduct his own merits review without a lawyer, noting that the first of those paragraphs in this affidavit he stated that he wanted to find a lawyer to help him and he was struggling to know what he needed to do in the Tribunal process.

41    The third asserted basis for error was that the Tribunal had the option to adjourn for a reasonable period to allow the appellant to get help to review the documents, asserting that this is what the Full Court said was required in like circumstances in Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 at [36]. That overstates what was said in Khalil and the context in which it was said, as well as the error that was found to have been made in that case. On the listed hearing day before the Tribunal, Mr Khalil’s counsel had advised that he could no longer appear. The Tribunal’s response was to adjourn the case for only a day, upon the misapprehension that it had to make the decision and publish its reasons within the 84 days, in circumstances in which Mr Khalil was in detention and did not have any of the documents. The Full Court said that if the assumed effect of s 500(6L) was to be disregarded, then it would have been unreasonable to have granted only such a short adjournment in those circumstances, but that this did not need to be decided because that assumed effect was wrong and only the decision had to be made within the 84 days; reasons could be furnished later.

42    The situation in Khalil is far removed from the present in which the original G documents had been provided and written submissions had already been furnished by both sides. The issue was how to ensure that the appellant would be given a reasonable opportunity to inspect and make submissions about additional documents that had only been provided to him at the hearing. Khalil is not authority for the proposition that in such a circumstance the Tribunal is obliged in every case to meet the terms of s 39(1) by an adjournment. Here, the Tribunal was obliged to give the appellant a reasonable opportunity to present this potential aspect of his case. It achieved this by way of giving him times to inspect the supplementary G documents and making further post-hearing submissions in writing, a course that he willingly adopted and availed himself of. In all the circumstances, this way of addressing the very late and unsatisfactory provision of a large number of documents did not, as asserted by the appellant, constitute a breach of the Tribunal’s duty under s 39(1) to ensure that he had a reasonable opportunity to present his case and to inspect any documents to which it proposed to have regard in reaching its decision.

43    The appellant further contends that s 39(1) compelled the Tribunal to allow him to inspect the additional documents before he was asked any questions about them. This argument was not advanced by reason of the contents of any of those additional documents, which related to events about which he must have been reasonably familiar because they were mostly documents about the offences he had committed. Rather, it was advanced as an abstract proposition, apparently to be applied in all such circumstances. Doubtless it is generally better that merits review applicants have an opportunity to inspect material before being asked questions about it, especially if the material has never been seen before, but that is not a rigid requirement. The relevant obligation is to ensure a reasonable opportunity is given. The analysis above about the cross-examination reveals that the appellant acquitted himself well and that the adverse use of evidence in cross-examination on the additional documents was confined to what is outlined above at [30].

Post-hearing evidence and submissions

44    The appellant’s case was expanded after the appeal hearing, when it emerged that the appeal book before this Court did not include a single six-page document comprising prison medical records for the appellant that he caused to be produced to the Tribunal in response to a summons. The details of what occurred are proven by an affidavit from a solicitor from the firm of solicitors acting for the Minister, who had carriage and conduct of this proceeding before the Tribunal, the primary judge and on appeal, including documents annexed to that affidavit, and further documents produced in response to a notice to produce served by the Minister on the Tribunal. The sequence of events established by that evidence is as follows (remembering that the Tribunal hearing was to, and did, take place on 1 April 2020):

(a)    on 27 March 2020, at the request of the appellant, a summons was issued by the Tribunal addressed to Justice Health, an agency within the Victorian Department of Justice and Community Safety, seeking certain medical records for the appellant during his time in Loddon Prison in central Victoria, north-west of Melbourne;

(b)    at 1.15 pm on 30 March 2020, Justice Health sent an email to the Melbourne registry of the Tribunal, attaching a single six-page document produced in response to the summons, comprising prison medical records for the appellant from Loddon Prison;

(c)    on 30 March 2020, a senior member of the Tribunal made an order giving the appellant and the Minister leave to inspect the document that had been produced;

(d)    on 30 March 2020, the Melbourne registry of the Tribunal:

(i)    at 2.29 pm emailed to Loddon Prison the order for inspection, a letter from the Tribunal addressed to the appellant advising of the order and the medical records, asking that they be given to the appellant;

(ii)    at 2.30 pm on 30 March 2020, the Melbourne registry of the Tribunal emailed the order for inspection, the letter from Justice Health, and the document produced to the email inbox titled “tribunaldocumentsmel”, copying that email to “MST Melb Registry” and to the Minister’s solicitor;

(e)    at 2.56 pm on 1 April 2020, the Minister’s solicitor sent an email to a secretary, attaching the above correspondence and the medical records produced, and asking that they be printed and sent to the appellant by express post;

(f)    on 1 April 2020, a letter was sent by the Minister’s solicitors by express post, enclosing the Tribunal’s order giving leave to inspect the document produced, a copy of a Tribunal letter accompanying the order and the document produced by the Department of Justice and Community Safety.

45    The solicitor’s affidavit also explains the usual process for the preparation of court books for first instance hearings and appeal books, and proffers an apology for the oversight in omitting the document produced to the Tribunal from the court book before the primary judge and, hence, the appeal book.

46    The net result is that while the evidence establishes that the medical records were sent to Loddon Prison on Monday, 30 March 2020, there is no evidence that those records were passed on to the appellant. The Tribunal hearing on 1 April 2020 concluded at 3.26 pm, with the appellant’s evidence concluding at 3.04 pm. It follows that the medical records produced to the Tribunal could not have been received by the appellant until after that hearing had concluded (not being posted to him until sometime after 2.56 pm that day). The appellant also gave unchallenged evidence by affidavit that he did not receive the medical records at any time before the Tribunal’s decision and that he had no recollection of ever having seen them until after the appeal hearing before this Court.

47    The Minister argues that the appellant has not discharged his onus of proving that he did not have the medical records before his last opportunity to make submissions to the Tribunal. That submission cannot be accepted because in his 14 September 2023 affidavit, he deposes to not receiving the medical records before, during or after the Tribunal hearing and before its decision. The Minister’s evidence goes no further than showing the sending of the material by registered post, in circumstances where there was undisputed evidence that many other documents sent to the prison were not passed on to the appellant. The postal rule is rebuttable and is rebutted by the appellant’s affidavit evidence. The Court therefore proceeds upon the basis that the appellant did not have the medical records at the time he gave evidence, or during the Tribunal hearing on Wednesday, 1 April 2020, or indeed at any time prior to the last date that he had to provide any further submissions or documents, being 17 April 2020. It is not therefore necessary to address the appellant’s additional arguments as to why this Court should accept that he did not have access to the medical records at the relevant time.

48    The appellant argues now that the failure to provide him access to these medical records offers a “different, starker complexion” to what was presented at the appeal hearing, because it now also turns on records that he did not receive at any time before the Tribunal made its decision, and turns on whether he was given an opportunity to inspect those records, being records to which the Tribunal proposed to, and did, have regard to in reaching a decision, and to make submissions about them, which did not occur. This gives rise to an issue which, if correct, could not have been addressed by an adjourned hearing, because the appellant did not receive these further additional documents.

49    The appellant contends that the medical records were relied upon by the Tribunal to reject or refuse to accept his evidence that he had a pre-existing depression and anxiety condition and a relationship with a medical practitioner to manage that condition. He contends that the appeal can and should be allowed on this standalone basis.

50    The Minister argues that:

(a)    the medical records are only six pages;

(b)    the appellant was thoroughly informed of the contents of the material at the Tribunal hearing;

(c)    contrary to the appellant’s submissions, he was able to respond cogently and directly to the contents of the material both at the hearing and in post-hearing submissions;

(d)    the Tribunal’s brief findings on this issue (to the effect that the Loddon prison medical records indicated no continuing mental health condition) were incontrovertible;

(e)    in any event, the appellant has not suggested that there was anything more that he might have said or done that might realistically have caused the Tribunal to make different findings, let alone that might realistically have caused the Tribunal to make a different decision, such that any purported breach of s 39(1) was immaterial.

51    In reply, the appellant characterises the Minister’s case on the substance of the arguments advanced as involving a breach of s 39 that was immaterial. He characterises the Minister’s reliance on the appellant’s post-hearing submissions to the Tribunal as being misplaced, because his submissions incorrectly recorded the medical records as confirming that he faced challenging situations of anxiety, depression, and issues with drug addiction. In truth that is not what is in the medical records, and therefore his submissions reflect only what he thought they should contain. That aspect of the appellant’s submissions should be accepted. The medical records did not, as he thought they would, confirm that he faced challenging situations of anxiety, depression, and issues with drug addiction. However, this does not assist the appellant, because the medical records did not support (or detract from) his account of his mental health condition.

52    As to the remaining arguments advanced by the Minister, the appellant submits:

(a)    the length of the medical records cannot be determinative of whether there was practical injustice, a submission that must be accepted as far as it goes;

(b)    he was not thoroughly informed of the contents of the medical records but only of the parts that he was cross-examined upon, a submission that cannot be accepted in light of the analysis below;

(c)    whether or not he was able to respond to questions does not demonstrate there was no practical injustice, with the question being whether he was given procedural fairness and whether there was a possibility of a different outcome, a submission that should be accepted, but noting that the requisite possibility must be a realistic one;

(d)    the case that he wished to advance concerned his health prior to entering Loddon prison, a submission that should be partly accepted, but noting that the medical records could not have helped him in that regard as they said nothing about his time at Port Phillip Prison (referred to in the medical records as PPP), asserting that the Tribunal’s findings regarding his mental health could well have been different, an aspect that cannot be accepted in light of the analysis below;

(e)    he was not required to demonstrate how he might have taken advantage of inspecting the medical records, and could not consider nor make a submission about them without inspecting them, and therefore suffered practical injustice, a submission that elides the need to demonstrate materiality if s 39(1) was not complied with in order for there to be a jurisdictional error.

53    Each of the above points requires the Court to consider the medical records, the questions asked and answers given, the closing submissions made by the appellant and the use that was made of this material by the Tribunal in order to evaluate the competing submissions.

54    The medical records cover the period from 1 February 2017 until 11 March 2020, straddling a two-year period from 2017 to 2019 when the appellant had been transferred to another prison, referred to in those records as “PPP”, a reference to Port Phillip Prison. A part of the medical records relate to dental issues, which may be put to one side as no reliance is placed upon them. The later part of the medical records relate to the period from 19 August 2019 in relation to the medications the appellant was prescribed and contain a reference to him not collecting his medication on a number of occasions, without any reason for that non-collection being recorded. This non-collection of medication was a topic upon which the appellant was cross-examined at the Tribunal hearing. The earlier part of the medical records relates to an appointment on 1 February 2017, which was an initial appointment he had with a psychiatric nurse upon arriving at Loddon prison with regards to the appellant’s mental wellbeing.

55    The medical records refer to medication not been collected on six occasions between 23 November 2019 and 13 January 2020. A number of the earlier of those six entries include references to “Medication non compliance”, “Medications not collected” and “Returned to HPS Pharmacy”. The last reference is for 13 January 2020: “Unsupervised weekly sachets NOT collected for week commencing 06/01/2020”. The part of the appellant’s cross-examination on the topic of not collecting weekly medications is as follows:

In the medical records from Loddon that was returned because of your summons, it says that on 9 December last year – sorry, I’ll start again – 23 November last year, the nurses recorded that you failed to collect your weekly medications?---No, that’s not true

…

Were you getting paracetamol, do you remember?---Yes, I’ll go back to that, sorry. This is, you know, the methadone, like, just for your digesting system they give you stuff so you can go to the toilet and that.

Right?---And I’ve asked – yes, I’ve told them about it. I don’t need it, I go to the toilet anyway, so that’s fine I haven’t picked it up. It’s just – yes.

So that - - -?---So it’s just to help - - -

So you’re thinking that might be the explanation for where it says, “Medication non-compliant”?---Yes, yes, that’s Metamucil and a sort of laxative but I can obviously go to the toilet, yes.

It is clear that the explanation that the appellant gave for not collecting the medication, being a laxative that on occasions he did not need, was accepted. The passages from the Tribunal reasons that the appellant relies upon, reproduced below, do not give any other indication.

56    The appellant also asserted that there were errors within the medical records that he was cross-examined upon, particularly with regards to his methadone usage, as reproduced below:

Yes, you are on the methadone program in prison, aren’t you?---Yes, I started before March, in fact, I’ve been clean now for a couple of years and I haven’t thrown any dirty urine for a couple of years.

Yes, so recently, as recently as 11 March or early March, you were discussing with the medical expert, or a medical officer, about your dosage and you were on 25 milligrams daily but you wanted to go back up to 30 milligrams daily because 25 wasn’t enough, is that right?---No, it wasn’t because of that, I was on 50 milligrams and it was starting to affect me like health wise, and they asked if I want it reduced down to like a level where I can exercise and get on with things, and I asked them to put me down and it’s not something I want to stay on forever, this is just to help me with – so I can carry this outside and one day I wish to get off everything and be clean and I went on 25 and then I just said to put me back 30 but I dropped from 50 to 25 and I went back up 5 to – just yes, so I don’t – yes, I am not going to do anything and I feel like it’s helping me but one day (indistinct) that I can get off and stay clean because it’s not the life that I want to live, even being on this but I (indistinct) taking drugs and yes.

Again, it is clear that the account that the appellant gave was accepted. This is unsurprising, because his recollection of what had taken place accorded with the medical records read in context and with his explanation of what had taken place.

57    The appellant further addressed in cross-examination the notations within the medical records regarding initial appointment with the psychiatric nurse at Loddon Prison, being the entry at the commencement of the medical records when he first arrived, set out on the sixth page:

You’ve mentioned in your material as well that you suffer from depression and anxiety. Is that right?---Yes.

Yes and are you on any medication for that at the moment?---No, I’m in gaol. It’s very difficult. This time (indistinct) and because of all these drugs and everything that happens in gaol, when you go to ask for help, they do, they talk to you, they agree with you and then they just send you off. And when you need help - I was in a bad way at one stage. Honestly, I wouldn’t even know if I would be here today. Like, I wouldn’t be able to talk to you. And then they let you know, when you ask them for something, help, depression, like, anti-depressants, they think you need something because you just want to use drugs. That’s the way they treat people inside. I don’t know, like, what to do. I’ve suffered a lot, like, just inside here from depression. Outside when I was having this problem I seen a doctor in Prahran, his name is Dr Alan Rose and that’s who I used to go and see.

Let me rephrase or ask you a different question, Mr Kamal. Have you got a prescription for any medication to assist with depression and anxiety?---Well, I did outside. I had it from Dr Alan Rose. I was on antidepressant and when I come into gaol and I’ve brought that up, they just brushed me off and they didn’t want anything to do – they don’t want to give you anything. They think you just want to use drugs and you’re using it for something. It’s, like, everyone knows about this inside. It’s hard to get anything. If you’re on medication, they cut you off. It’s very hard inside, like, if you go ask them they just think you’re lying. Like, it’s very hard.

…

Yes, so Mr Kamal, I’m looking at a report dated 1 February 2017 and for the tribunal’s reference that’s on the last page – page 6 of the document?---What page, sorry?

…

SENIOR MEMBER MORRIS: It relates to you having an appointment with a nurse called Wendy Blanch at Loddon on 1 February 2017. Okay. Mr Orchard.

MR ORCHARD: In that appointment, Mr Kamal, you said that your only medical condition is asthma. Is that the case?---Yes but I’m talking to a nurse, I’m not talking to someone that helps you with depression or anything. She’s asking me for, like, sort of, if I’ve got any injuries or anything like that. I said I’ve got asthma.

Yes, she’s a psychiatric nurse, according to this report, Mr Kamal?---Well, no, I just thought I was talking to a nurse, that’s what they do when you come in and, yes, that’s a nurse or a doctor, that’s the only person I’ve seen since I’ve been here.

You also said in – well, the nurse records that you said, in her report, “Currently has no medications and came across without any chart.” So when you came to Loddon Prison you were not on medication, is that right?---Yes, this is – you’re going back to 2017. I was there for (indistinct) and then I went – I was here, like, not even a month and a bit and I went back to Port Phillip. Now I’ve been here for about a year, so since I’ve come back that last time that you’re talking about is over a couple of years ago. It’s not this time that I’ve been here now, 12 or 13 months, but the previous time I was – yes, it was over two and a half years ago I reckon that I was here.

The significance of this part of the cross-examination is addressed below.

58    The appellant relies upon the Tribunal reasons [52] and [116], to which may be added [54] and [117]:

[52]    The Applicant told the Tribunal he had suffered in the past from anxiety and depression and when not in custody had received a prescription for antidepressants from a Dr Alan Rose in Prahran. Mr Kamal was taken to documents produced under summons from Leddon Prison including a medical note from a psychiatric nurse dated 1 February 2017 headed 'Initial appointment.' The note stated that the only medical condition recorded was asthma, and the nurse recorded “IMP [i.e. impression] settled mental state.” Mr Kamal said he did not discuss his mental health with the psychiatric nurse as he had believed she was a general nurse.

…

[54]    In answers to direct questions from the Tribunal, Mr Kamal said that the only prescription medication he is currently on is methadone, but agreed that he also had a Ventolin inhaler for his asthma, when needed. He said that he was unable to access antidepressant medication in prison.

…

[116]    We note, from the medical records before the Tribunal, that Mr Kamal does not have any significant health conditions, recognising he is asthmatic and has a Ventolin inhaler. Mr Kamal made certain submissions about his mental health and that a previous general practitioner had prescribed him medication in the past, but said that he was unable to obtain antidepressants in prison. There was no other documentary evidence of any contemporary mental health condition and, to the contrary, the medical records from the most recent prison in which Mr Kamal has been housed indicated no continuing mental health condition. There is evidence (GD, p 38) that the Applicant had suffered a degree of Post-Traumatic Stress Disorder, because of exposure to early trauma and attachment disruption. Judge McInerney refers to this in his sentencing remarks, but not to the source of the diagnosis, but it is reasonable to conclude it may have been part of Ms Lechner's assessment, to which His Honour also refers elsewhere. In the absence of further specific information, the Tribunal is unable to determine whether a mental health condition now exists, but notes that the Applicant would have access to mental health services available to other New Zealand citizens.

[117]    In terms of the methadone programme, we consider that, as a New Zealand citizen who could provide proof to the New Zealand authorities that he was registered in Australia for such a programme, Mr Kamal may be able to continue with this treatment support. Under section 33(1)(c) of the AAT Act we have informed ourselves and note that the New Zealand District Health Boards support opioid substitution treatments at community pharmacies for persons who have been assessed and recommended for such treatment by their general practitioner.

59    A number of observations may be made about the medical records, the cross-examination of the appellant about them, and the Tribunal reasons.

60    The medical records are sparser than the reference to six pages would indicate. The total information in them in aggregate is about a page or perhaps less of text. This facilitated a close examination of them by this Court. The key points in the medical records were raised with the appellant in cross-examination, leaving out altogether only the dental issues. He was substantially apprised of their content by the questions asked. Neither the medical records themselves, nor the evidence given in cross-examination about them, were used adversely by the Tribunal.

61    The appellant’s explanations for not collecting the prescribed medication and the change in his methadone dosage were evidently accepted because they are not referred to by the Tribunal. The Tribunal referred only to an answer given to a question asked by the Tribunal, which was not apparently based on the medical records. That aspect of the medical records does not meet the threshold in s 39(1) of being material to which the Tribunal proposed to have regard in reaching a decision. But even if that is not so, there was nothing more that the appellant realistically could have said if he had inspected those records.

62    As to the appellant’s mental health condition, which was considered by the Tribunal, including that part of the medical records referring to his appointment with the psychiatric nurse, the Tribunal noted the appellant had made submissions with regards to his mental health, but that (contrary to his submission apparently based on what he thought they would contain) no continuing mental health condition was indicated by the medical records. That is a fair characterisation. The medical records had very little to say about the appellant’s mental health and could not realistically have assisted him further than the account he gave on that topic in the course of answering questions, with the Tribunal accepting, or at least not rejecting, his additional evidence on that topic, as far as it went. The last sentence of AAT[116], viz, “In the absence of further specific information, the Tribunal is unable to determine whether a mental health condition now exists, but notes that the Applicant would have access to mental health services available to other New Zealand citizens” – could not have been changed by any submission made based upon the appellant inspecting those records, because, as he said himself in cross-examination, acknowledged by the Tribunal at AAT[116], he did not discuss his mental health with the psychiatric nurse as he had believed she was a general nurse.

63    The Tribunal thus concluded that without any specific medical information, it was unable to determine the existence of a medical condition. It proceeded on the basis most favourable to the appellant that even if he did have a mental health condition, he would have access to mental health services available to New Zealand citizens. Essentially, neither his own evidence speaking to his mental health conditions, nor the medical records by the psychiatric nurse, were used adversely in making the decision. Further, although the appellant asserted that there were errors in the medical records with regards to the above, this did not end up being an issue, as none of what he was cross-examined on was ultimately used by the Tribunal adversely in its decision, and thus did not result in any practical injustice to the appellant.

64    The medical records did not and could not assist the appellant in demonstrating that he had a mental health condition, and no submission on that topic could realistically have been assisted by inspecting the medical records.

65    No practical injustice has been demonstrated arising out of the medical records not being provided to the appellant. To the extent that s 39(1) was not complied with, it was technical rather than material.

Conclusion

66    No error on the part of the primary judge has been established. Her Honour’s conclusion that s 39(1) was complied with remains intact. The appeal must therefore be dismissed.

Associate:

Dated:    28 September 2023