FEDERAL COURT OF AUSTRALIA

Amankwah v Minister for Immigration & Multicultural Affairs

[1999] FCA 1162

MIGRATION – whether applicant medically unfit to give evidence – whether Tribunal has a duty to make medical enquiries – whether Tribunal should grant an adjournment if there is evidence of the applicant’s medical condition but the applicant is represented and an adjournment is not sought

Migration Act 1958 (Cth)  s 425

Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193  cited

Qadir v Minister for Immigration and Multicultural Affairs  [1999] FCA 620 cited

SOLOMON AMANKWAH v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 691 of 1998

HILL J

8 SEPTEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The Applicant, Mr Solomon Amankwah applies to the Court for judicial review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) that he not be granted a protection visa.  The sole ground of review is that the Tribunal failed to observe procedures which it was required to observe: s 476(1)(a) and s 420(2)(b) of the Migration Act 1958 (“the Act”).

2                     The case is an unusual one.  On 25 January 1998, after he had applied to the Tribunal for review of the delegate’s decision, but before the hearing of that review, Mr Amankwah was involved in a motor vehicle accident.  It is not in dispute that as a result of that accident he suffered traumatic brain injury as well as a fracture of the cervical spine and multiple facial fractures.  A neurosurgical procedure was required to evacuate an extra-dural haemorrhage on the day of the accident.  He was subsequently transferred to a brain injury unit of Westmead Hospital.

3                     On 3 March 1998 the Tribunal notified him that it was unable to make a favourable decision on the papers and advised him that a hearing was scheduled for 30 March 1998 so that oral evidence could be taken.   A social worker advised the Tribunal that Mr Amankwah would be unable to attend the hearing on that day and that a letter would be sent to the Tribunal with medical certificates.  A subsequent letter dated 16 March, signed by the social worker advised the Tribunal that a tracheostomy tube had been only removed on 6 March, that he as in a body cast from the waist up and was undergoing assessment.  The letter noted that Mr Amankwah was keen to participate in a hearing and said that it was expected that a “date closer to the end of May or early June (would) be more appropriate”.  A letter signed by the Registrar Rehabilitation Medicine, (undated), which presumably accompanied the social worker’s letter indicated that Mr Amankwah had made considerable progress to date, that assessments were proceeding and that Mr Amankwah could not appear at that time.  That letter recommended that the hearing be delayed several months until he was well enough to appear. 

4                     The Tribunal replied on 19 March to the social worker advising that the hearing had been adjourned and would be rescheduled.  The facsimile noted that the Tribunal would be in contact with the social worker in early May to discuss when Mr Amankwah would be ready for the hearing.  It requested that the Tribunal be contacted if Mr Amankwah was released or his condition improved.

5                     It seems that Mr Amankwah was released from hospital on 26 March.  A social work summary from Westmead Hospital dated 15 April noted that Mr Amankwah had been in post traumatic amnesia until 19 February (25 days) and that it had yet to be determined whether he was left with ongoing cognitive problems.

6                     It is not clear whether the Tribunal had further contact with the social worker.  By letter dated 1 May 1998 it notified Mr Amankwah that a hearing would be held on 28 May.  On the standard form Response to Hearing Offer, which Mr Amankwah was invited to complete, in answer to the question whether he wanted the Tribunal to take oral evidence from other witnesses Mr Amankwah indicated that he did.  The question whether he had any special needs for the hearing elicited the response: “I prefer someone will come from the Westmead Hospital or CRS Commonwealth Rehabilitation Service, Ashfield”.  The form noted that Mr Amankwah would be represented by a migration agent.

7                     The hearing proceeded on 28 May.  So far as appears no request was made by the migration agent for an adjournment.

8                     In its reasons for decision the Tribunal noted that it had read the medical evidence to which I have referred and that as a result of the accident Mr Amankwah had sustained cognitive deficits including some memory loss.  It said that it accepted a neuropsychological report dated 24 April 1998.  That report, given by a Ms Flanagan, from the School of Psychology of the University of New South Wales indicated that at the time of discharge from Westmead Mr Amankwah was reportedly functioning independently in terms of money management, public transport, cooking and limited grocery shopping.  The report continued:

“Some difficulties were reported in terms of high level problem-solving, following novel and/or abstract instructions, insight into the possible functional consequences of his injuries and frustration tolerance.  He was also noted to fatigue more easily, requiring several rest periods during the day.”

9                     Later in the report Ms Flanagan  wrote:

“Mr Amankwah reported that he felt his memory had been affected by his injury and sometimes he ‘can’t remember quick’.  He said that sometimes he found it difficult to understand what people said and his concentration was weak.  He said that since the accident he had changed and he didn’t feel himself.  He said prior to his injury he had talked and laughed more with friends.  He said that since the accident he had become withdrawn and quiet and sometimes felt himself ‘slip back into oblivion’.  He said friends had commented on his tendency to ‘think too much’. He reported a loss of taste, itchiness of the head and a great deal of pain associated with his facial injuries.  He also reported pain and discomfort in his back, both when sitting and laying(sic) down, and frequent headaches, which were only minimally responsive to Panadeine.  He reported disturbed sleep, loss of appetite and loss of more than 15kg in weight since his injury.  He reports that he is assisted with most of his activities of daily living, such as laundry and cooking, by his flatmate and that he finds it difficult to tolerate going out or socialising.”

10                  Ms Flanagan noted that on tests Mr Amankwah was below average with the exceptions of some tests of verbal immediate memory and learning.  In many tests he scored in the severely impaired range.  His immediate memory span for verbal information was borderline and his working memory was very limited.  On the other hand he apparently performed well within the average range on a test involving the immediate recall of two short stories read to him once.  Ms Flanagan expressed some doubts about the validity of the way this test was administered and the results recorded.  Ability to recall events after a delay was worse than immediate recall.  Information processing speed was slow.  His verbal reasoning skills were difficult to assess.  She noted that the tests demonstrated impairments in many areas of cognitive functioning.  She noted that the results may have been affected by depression which Mr Amankwah also suffered from.  She recommended that he receive psychological intervention and further testing to provide a clearer picture of the long term effects of his injury.

11                  The hearing proceeded.  Mr Amankwah had the assistance of an interpreter, which may make it difficult to determine what, if any difficulties he experienced.  Suffice it to say that a perusal of the transcript does not demonstrate any difficulty in comprehending the process.  However, Mr Amankwah often gave conflicting answers.  The Tribunal found Mr Amankwah’s claims (often in conflict with what he had said in his original application) not credible, confusing and contradictory and incoherent.  The Tribunal wrote in its reasons:

“The Tribunal finds that the applicant is not a credible witness.  There were many material and substantial contradictions and inconsistencies in his claims, that were not explained to the satisfaction of the Tribunal.  Some of his testimony and some of his claims were simply not plausible or believable.  Some of his testimony was incoherent or confusing.  As well, some of his claims were at odds with the independent evidence.  In these circumstances, for the following reasons the Tribunal finds that his claims are not credible.

The Tribunal has carefully considered the contents of the neuropsychological report, referred to at page 5 of this decision, as well as the other documents from the hospital where the applicant was treated following his accident.  It has also carefully assessed his demeanour and the way in which he testified at the hearing before the Tribunal in light of these assessments.  In light of the fact that there were no instances during the hearing when the applicant appeared to experience memory loss, which could have been explained by the memory loss occasioned by the accident, and since the applicant was able to testify in a forthright manner and answered the question (sic) put to him without any difficulty, the Tribunal finds that his credibility has not been negatively affected by the accident or its consequences.”

12                  I should say that for my part one might have expected from the medical evidence that incoherence and confusion could well have been a consequence of the accident.  However, this was not the view of the Tribunal.  Whether or not justice was done in the present case, an issue which I am not directly required, or indeed permitted to determine, justice would have been better seen to have been done had the Tribunal not proceeded with the hearing in the circumstances.  One can, on the other hand,  understand the Tribunal proceeding as it did because no adjournment was sought.  Why, if Mr Amankwah was still afflicted by his injuries, Mr Amankwah’s agent did not seek one was not revealed in evidence.

13                  It is the case now for Mr Amankwah that his medical condition at the time of the appointed hearing was such that he was in truth given no real opportunity to give evidence before the Tribunal as is required by s 425 of the Act.  A real opportunity requires, so it is submitted, a situation where, at the least, the applicant is medically able to give evidence: cf Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193.  With that submission I would agree.  I would not agree with an alternative submission put on behalf of Mr Amankwah that any illness (the submission went so far as to say that a common cold would suffice) requires the conclusion that an applicant is not given a real opportunity to give evidence.  Day in and day out litigants give evidence in courts and tribunals with colds or even worse illnesses, without it being suggested that this is objectionable.  But if, as is said to be the case here, the health of an applicant is such that he or she would be unable to comprehend the proceedings, unable to give evidence because of illness or incapacity, it seems to me that no real opportunity has then been given to that applicant to give evidence as is required by s 425 of the Act.  Nothing in Capitly or for that matter Qadir v Minister for Immigration & Multicultural Affairs [1999] FCA 620, a decision of Einfeld J supports the wider submission.

14                  Before me evidence was given from a psychiatrist, Dr Klug on behalf of Mr Amankwah and from a neuropsychologist, Mr Rawling called on behalf of the Minister.

15                  Dr Klug had interviewed Mr Amankwah on 23 March 1999 for an hour and a half.  The interview was conducted on the basis of questions and answers – Dr Klug referred to it as a mini mental state examination, a brief test of cognitive function. He subsequently wrote two reports, based on the interview, other reports from Westmead and an examination of the transcript of the proceedings before the Tribunal.  He noted that Mr Amankwah was a “difficult historian”, whose responses were slow, “circumstantial and tangential”.  I need not set out the whole of the two reports.  It suffices to say that he concluded that Mr Amankwah probably had “frontal lobe syndrome” with specific cognitive deficits.  He suggested that there be further testing.  Dr Klug wrote:

“If one were to assess him using the Presser criteria with respect to fitness to plead, he would not fulfil some of them.  I believe he has a limited ability to understand the legal process and the general nature of the proceedings.  He would have substantial difficulty following proceedings because of his limited concentration.  His ability to recall remote events in an organized fashion is also disturbed.

In summary, it is my view that he was not fit to be interviewed on 28 May 1998 and remains unfit.  Information gained from him is probably inaccurate, disorganised and gaps in his memory are probably being replaced with other material, a process known as confabulation.”

16                  Dr Klug was cross-examined.  He agreed that Mr Amankwah had been noted to have improved substantially by the time he had been discharged from hospital and that it would be unlikely that he would thereafter regress.  Yet he agreed also that it seemed that he had.  He accepted that he had not tested to see if Mr Amankwah was faking, and had not administered any psychometric testes.  He said that he would have been reluctant, on the basis of one interview, to say whether Mr Amankwah was faking or not.

17                  Mr Rawling was a clinical neuropsychologist practising at St Vincent’s Clinic.  He interviewed Mr Amankwah, noting that he appeared to have no understanding of the fact that his application for refugee status had been rejected.  Mr Rawling had been given a copy of Dr Klug’s report and had administered a number of tests to Mr Amankwah.  He noted that on the tests Mr Amankwah performed very poorly.  As he later said in oral evidence, he formed the view that he should administer tests to determine whether Mr Amankwah was faking.  He did so.  In one test a person with severe organic memory impairment would be able to recall at least seven items,  Mr Amankwah produced responses which were highly unusual.  Failures of the magnitude which Mr Amankwah displayed over a number of tests could not even be seen in patients with significant neurological motor deficits.

18                  Mr Rawling concluded as follows:

“He performed extremely poorly on all tests presented, regardless of their difficulty level or sensitivity to brain injury. In the case of at least one test, his performance was substantially worse than that seen at the initial assessment by Ms Flanagan.  This anomalous deterioration in cognitive functioning and the extremely severe and non-specific nature of his failures on testing was suggestive of less than genuine effort and specific screening for simulation produced consistently positive results,  In fact, I would venture to suggest that so gross and utterly improbable were his failures on testing that there would not be a single neuropsychologist in Australia who would contest the assertion that he was engaging in simulation.”

19                  Mr Rawling had also perused the transcript of the proceedings and said that although it was unlikely at the time of the hearing that Mr Amankwah was functioning at his full cognitive potential he doubted that this would have substantially affected the quality of the evidence he gave.

20                  Unfortunately, if Dr Klug had seen Mr Rawling’s report he made no comment upon it, nor was any application made to recall him, assuming that he had not.

21                  Mr Rawling was cross-examined.  His view was not shaken. I accept his evidence without question, as indeed I would accept Dr Klug’s, subject to the qualification that it was given on the basis that Mr Amankwah was not simulating.

22                  The most substantial part of the cross-examination was directed to the suggestion that Mr Amankwah’s performance might have been brought about by the fact that he was taking Panadeine Forte (six a day Mr Amankwah said in his evidence in reply) and Brufen (likewise six).  However, Mr Rawling suggested that analgesia would not have affected the tests on simulation.  Mr Rawling had not asked Mr Amankwah whether he was on medication.  However, it was his view that the level of impairment which Mr Amankwah revealed was “so severe, so wide-ranging, so all encompassing that it was way beyond the scope of what could be explained by medication effects”.

23                  No expert evidence was adduced which would permit the conclusion that Mr Rawling’s evidence would need qualification as a result of the medication which Mr Amankwah had been taking, or the consequences of tolerance to them having regard to the period of time they had been taken over.

24                  In the result, although I have some unease as to precisely what Mr Amankwah’s medical situation was at the time of the proceeding I am not satisfied on the balance of probability, on the evidence before me that he was unfit to give evidence because of the accident he had undoubtedly suffered, severe though that undoubtedly was.

25                  It follows that the application for review must be dismissed.  I should add that it was also submitted that the Tribunal had a duty to make further medical enquiries as a result of the medical material before it at the hearing.  With respect this can not be so, particularly in a case where Mr Amankwah attended the hearing and gave evidence at it, represented by a migration agent, and where, so it would seem, he presented to the Tribunal as a person who could understand questions and give evidence and made no request that further medical enquiries were necessary or desired.

Associate:

Dated:              8 September 1999