FEDERAL COURT OF AUSTRALIA

NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 983

MIGRATION – application for judicial review – jurisdictional error – applicant claimed to be mentally unfit at time of the Refugee Review Tribunal hearing – the medical condition of the applicant allegedly connected to the applicant’s claims of past persecution - Tribunal refused to further postpone hearing and decision and refused to exercise power to require Secretary to arrange for a medical examination of the applicant under s 427(1)(d) of the Migration Act 1958 – whether the Tribunal’s approach would cause a reasonable observer to conclude the Tribunal had a closed mind to the applicant’s application for review of delegate of the Minister’s refusal to grant a protection visa

MIGRATION – s 425 of the Migration Act 1958 – invitation to appear before the Tribunal to give evidence and present arguments - whether the Tribunal failed to provide the applicant with a hearing at which he was fit to give evidence – the content of the requirement that an applicant be fit for the purposes of the hearing – issue of fitness one of mixed law and fact – whether the applicant demonstrated his unfitness.

Migration Act 1958 (Cth) ss 420, 423, 425, 427(1)(d)

Eastman v The Queen 203 CLR 1 discussed

Kesavarajah v The Queen (1994) 181 CLR 230 cited

Livesey v New South Wales Bar Association (1983) 151 CLR 288 cited

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 considered

Minister for Immigration and Multicultural Affairs v Jia Legeng 205 CLR 507 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 cited

Rose v Bridges (1997) 79 FCR 378 cited

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

NAMJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 404 of 2003

BRANSON J

22 SEPTEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

REASONS FOR JUDGMENT

introduction

1                     By an amended application for review (‘the application’) the applicant seeks relief by way of constitutional writs in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 20 February 2003.  By its decision the Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.

2                     The grounds of the application are ‘that the Tribunal exceeded its jurisdiction, or failed to exercise its jurisdiction, by committing jurisdictional error’.  The jurisdictional error on which the application is based is particularised in the following way:

‘1.        The Tribunal failed to afford the Applicant procedural fairness in that its rejection of the expert evidence presented by the Applicant stating that he was unfit to give evidence at the hearing before the Tribunal without seeking expert evidence to the contrary pursuant to s 427(1)(d) of the Migration Act 1958 (the Act) displayed apprehended bias.

2.         The Tribunal failed to provide the Applicant with a hearing at which he was fit to give evidence, in breach of s 425 of the Act.’

background facts

3                     The applicant, who is a citizen of Bangladesh, entered Australia on 2 December 1999 on a student visa.  On 14 January 2000 a registered migration agent, Mr Haque, forwarded to the Department of Immigration and Multicultural Affairs (‘the Department’) documents by which the applicant made application for a protection visa.  One of the documents forwarded to the Department was a statement by which the applicant declared that he was ‘the general secretary of the Mansur Nagar Union under Rajanagar P.S of district Moulvibazar the Bangladesh Nationalist Party (BNP)’.  By this statement the applicant claimed that his political affiliation with the BNP compelled him to leave Bangladesh to save his life.  He stated that members of the Awami League had attacked him both physically and by filing a false case against him because of his political activities.  He said that he was committed to his party politics.

4                     On 6 March 2000 a delegate of the respondent refused the applicant’s application for a protection visa.  The principal bases for the refusal were that there was no indication that the authorities in Bangladesh were unable or unwilling to protect persons at risk of political violence and there was no evidence that members of the BNP were persecuted in Bangladesh at the hands of the Awami League.

5                     On 27 March 2000 the applicant applied to the Tribunal for a review of the decision of the delegate of the respondent.

6                     A general election was held in Bangladesh in October 2001.  The BNP won office with a large majority. 

7                     By letter dated 4 June 2002 the Tribunal advised the applicant that it had looked at all the information relating to his application but was unable to make a decision in his favour on that information alone.  The Tribunal invited the applicant to come to a hearing of the Tribunal on 15 August 2002 to give oral evidence and present arguments in support of his claim.

8                     On 9 July 2002 the applicant advised the Tribunal that Mr Haque was no longer authorised to receive all documents in relation to his application.  He advised that Mr Farid Ahmed of the Agradoot Social Welfare Organisation of Australia Inc (‘Mr Ahmed’) had been authorised to receive such documents.  On the same day (ie 9 July 2002) the applicant completed a form by which he indicated that he did want to come to the hearing before the Tribunal and that he would be accompanied by Mr Ahmed acting as an adviser.  The form further indicated that Mr Ahmed would give evidence to the Tribunal ‘on behalf of my and my family members political attachment in Bangladesh’.

9                     By a facsimile transmission dated 8 August 2002 a registered migration agent, Ms Melissa McAdam of the Refugee Advice and Casework Service (Australia) Inc, advised the Tribunal that she would also be attending the applicant’s Tribunal hearing with the applicant.

10                  By a facsimile transmission dated 13 August 2002 Ms McAdam advised the Tribunal:

‘We are instructed to seek an adjournment of the Hearing scheduled for this Thursday, 15^th August.  Our client is suffering from severe trauma and will be unable to give evidence on Thursday.  He is currently receiving treatment for torture and trauma from STARTTS.

Our client’s condition is quite extreme and he is presently unable to properly communicate.  He is physically and mentally incapacitated to an extent that he has not been able to attend our offices for scheduled conferences over the past week.  We are urgently seeking a report from his treating specialist to ascertain his future ability to present oral evidence.  We will keep the Tribunal informed.’

11                  In response to a request by the Tribunal for a medical certificate concerning the applicant’s health, Ms McAdam provided to the Tribunal a letter from a clinical social worker from Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (‘STARTTS’) who had interviewed the applicant.  The letter from the clinical social worker concluded:

‘On the basis of the interview presentation, I do not believe that [the applicant] currently would be in a fit state to give evidence at a Refugee Review Tribunal Hearing.  Even in a supportive interview at STARTTS with his friend present, he was unable to answer questions at all.’

12                  The Tribunal postponed the hearing scheduled for 15 August 2002 but asked Ms McAdam to submit medical certificates concerning the applicant from a qualified medical practitioner and a psychiatrist giving the results of an examination and the prognosis for recovery.

13                  By facsimile transmission dated 9 September 2002 Ms McAdam provided to the Tribunal a report from Sally Tomkins, a clinical psychologist (‘Ms Tomkins’).  By her report Ms Tomkins indicated that her assessment procedure included:

·        a semi‑structured interview to collect a general history;

·        a semi‑structured interview about the applicant’s pre-migration trauma experiences; and

·        the administration of an internationally validated structured diagnostic interview schedule to assess the applicant’s mental state.

14                  Ms Tomkins’ report, under the heading ‘Background History’, records the following:

‘[The applicant] is a Sunni Muslim who was politically active in the Bangladesh National Party from 1995 to 1999, when he left Bangladesh.  [The applicant] reported that within the Bangladesh National Party (BNP) there were two factions, the fundamentalist Muslims and the moderate Muslims.  [The applicant] belonged to the latter faction.

Much tension existed between these two factions of the BNP in [the applicant’s] region, with violence and attacks being a common occurrence.  Between the years of 1995 and 1999 [the applicant] was harassed and beaten on many occasions by members of the BNP’s fundamentalist faction.  The worst of these attacks occurred in 1999.

…

The last time [the applicant] was attacked by fundamentalist members of the BNP he describes being beaten until he lost consciousness when he refused to join the fundamentalist faction.  Following this attack [the applicant] decided that he could no longer live in Bangladesh as his life was in danger.  [The applicant] then applied for a student visa to Australia as a way of leaving the country quickly and protecting his life.’

15                  Under the heading ‘Clinical Presentation’, Ms Tomkins’ report states:

‘In our first meeting [the applicant] appeared to be very frightened and disturbed, tugging forcefully and repeatedly at his hair, pulling hair out.  He would then shake the hair from his hands to the floor or desk.  I could see an area of markedly thinner hair towards the front of [the applicant’s] head where presumably he had pulled hair out previously.  At times he put his head down on the desk and seemed totally unresponsive to what hat [sic] happening around him.  At other times he would frown and stare at the door or at a place on the floor as if he was seeing something that was not there.  In this meeting while the interpreter was present [the applicant] spoke only a few single words and shook his head in response to the question of whether he could answer my questions.  [The applicant] nodded when I asked him if he would like me to ask the worker, [scil. Farid Ahmed] from the Agradoot Social Welfare Organisation into the room.  After speaking with [the applicant], [scil. Farid Ahmed] explained that [the applicant] felt so fearful for his safety that he would not speak in the presence of a Bangladeshi interpreter.  The meeting was concluded within an hour with an agreement that we would meet again the following week if a non‑Bangladeshi could be found.

The following week we met against with an interpreter who was not from Bangladesh and the assessment interview was conducted.

In our second meeting [the applicant’s] face showed a depressed expression with little change to this throughout the interview.  At times appeared quite agitated as he pulled hair from his head.  He broke down sobbing as he spoke of his brother and sisters and the death of his mother, clearly overwhelmed with grief.  He displayed a stooped posture and a restricted range of affect with a clear reduction in expressive behaviour.  He was cooperative throughout the assessment process.  [The applicant] showed extreme difficulties with concentration finding it hard to focus on my questions at times.  Speech flow was slow, with deficient fluency and productivity.’

16                  Ms Tomkins’ report concludes:

‘It is my professional opinion that [the applicant] is unable to competently give evidence to a tribunal hearing due to his chronic psychological impairment as a result of the assaults he has suffered and his inability to return to Bangladesh for his mother’s funeral because of the danger he would be in.  I would also recommend that [the applicant] has a full medical assessment to assess the injuries he has sustained to his shoulder and to investigate his reporting of feeling a lot of heat in his head leading to him repeatedly pulling hair from his head to relieve this feeling of heat.’

17                  By letter dated 19 September 2002 the Tribunal advised the applicant that his hearing would proceed on 9 October 2002.  The letter gave as one reason for not further delaying the hearing that:

‘The psychological assessment carried out on you by Sally Tomkins contains new claims of persecution which you have not previously made, which indicates that you are capable of giving evidence on your history, the current political situation in Bangladesh and your fears for the future.’

To suit the convenience of Ms McAdam the Tribunal subsequently changed the hearing date to 11 October 2002.

18                  The hearing before the Tribunal took place on 11 October 2002.

19                  By letter dated 6 November 2002 addressed to the Tribunal Ms McAdam noted that the Tribunal had allowed the applicant until 11 November 2002 in which to submit further information to the Tribunal.  The letter sought further time in which to submit supporting materials.  The letter also sought a further hearing when the applicant ‘is in a fit enough condition to attend’.  This letter drew attention to the power of the Tribunal to arrange for medical examinations of applicants but did not expressly request the Tribunal to exercise the power in respect of the applicant.

20                  By a letter also dated 6 November 2002 the Tribunal agreed to allow the applicant until 11 December 2002 to submit further material.  The letter indicated, however, that the Tribunal was not at that stage considering holding a further hearing but would:

‘… of course consider any further investigations and the possibility of a hearing in relation to any material submitted by 11 December 2002.’

21                  On 11 December 2002 Ms McAdam provided to the Tribunal by facsimile transmission a report from Mark Harris, Professor of General Practice in the School of Public Health and Community Medicine at the University of New South Wales (‘Professor Harris’).  Ms McAdam again sought a further hearing by the Tribunal ‘to be held at a time when he [ie the applicant] is in a fit state to attend and provide oral evidence’.

22                  Professor Harris’ report contains only a brief history concerning the applicant’s experiences in Bangladesh noting simply that he was an asylum seeker who reported being beaten while in custody in 1999.  Professor Harris noted in his report that the applicant ‘appeared extremely depressed with gross psychomotor retardation’ but that ‘[h]e is oriented in space and time and has no neurological abnormalities on examination’.  Under the heading ‘Summary’, Professor Harris reported as follows:

‘[The applicant] is an asylum seeker from Bangladesh who reports torture and trauma prior to traveling [sic] to Australia.  His injuries are consistent with his history.  He exhibits severe psychological symptoms and signs consistent with post traumatic stress disorder PTSD and depression.  This includes psychomotor retardation and some slowness of speech when answering questions.  I can find no evidence of neurological deficit.  He also expresses suicidal ideation and I have referred him for further mental health examination.’

23                  By letter dated 31 January 2003 the Tribunal informed the applicant that it had considered all the material relating to his case and made a decision which would be handed down on 20 February 2003.

the tribunal’s decision

24                  The Tribunal, by its written reasons for decision, noted the content of the applicant’s original claim to be entitled to a protection visa.  The Tribunal also noted that the history given by the applicant to Ms Tomkins raised new and inconsistent claims concerning the harm that the applicant feared in Bangladesh.

25                  After recording the history of exchanges between the Tribunal and representatives of the applicant concerning the holding of a hearing, the Tribunal’s reasons summarise the questions put to the applicant at the hearing and his responses to those questions.

26                  The Tribunal found the evidence of the applicant unsatisfactory.  It stated:

‘I am not satisfied that the applicant is a witness of truth.  He has made two distinct sets of claims, and I am of the view that the second set of claims was made to reanimate his application following the political changes in Bangladesh that have occurred since the launch of his application - i.e. the resounding election win of his party, the BNP.  Even if I were to accept the applicant’s new claims of being threatened with harm by Muslim fundamentalists and other parties as well as his old claims of being threatened by the Awami League, I am not satisfied, on the country information before me, that he has a well‑founded fear of persecution in Bangladesh.  I am not satisfied that the applicant is genuinely suffering from deep trauma and has been unable to comprehensively state his claims.  I am of the view that the applicant has simulated signs of trauma in order to delay the finalisation of his application by the Tribunal and so prolong his stay in Australia.  I am not satisfied that this tactic is motivated by a genuine fear of persecution in his native country. … .’

27                  With respect to the alleged medical problems of the applicant, the Tribunal said:

‘The applicant’s adviser has raised the claim that the applicant has not been able to give a complete account of his claims so far and that the Tribunal has been, essentially, unfair in finalising a decision on the basis of the claims made to date.  She submits that the applicant is badly traumatised following a beating in 1999 and cannot think lucidly enough to communicate all his claims.  Medical and psychological assessments have been provided in support of the claim that the applicant is not in a fit state to give evidence.

I have decided to finalise a decision now for the reasons given below.

Firstly, I find that the applicant has been able to give evidence about his history throughout his stay in Australia, and has continually done so.

§                He gave an account of his alleged history to his former agent which resulted in the BNP‑Awami League statement of claims.

§                If I were to accept his claim – which I do not, for reasons given earlier – that he had also related his “fundamentalist” claims to his former adviser then it must follow that he was apparently able to give evidence in full at the time.

§                I note that the applicant has been able to relate his alleged history to his friend, Mr Ahmed, to a social worker at STARTTS, to a clinical psychologist, and to a professor of general practice before and after his Tribunal hearing.  At least one of his interviews with these medical experts included a semi‑structured interview about the applicant’s claimed traumatic experiences.

§                The interview referred to above would not have been dissimilar to the Tribunal hearing where, in the company of his friend and adviser, and with their assistance, the applicant was asked about his history and invited to comment on the situation in Bangladesh and why he did not wish to return there, and given ample time and encouragement to make his comments.

§                The evidence given by the applicant at the hearing followed the same lines as the evidence given to him by medical experts, which does not indicate that he felt inhibited in giving evidence at the hearing.

§                While at the hearing the applicant appeared to sometimes have difficulty understanding and answering questions, and was sometimes highly agitated, by the end of the hearing I was satisfied that he knew what the purpose of the hearing was and that he had been able to give a comprehensive and lucid account of his claims.

…

Secondly, the Tribunal has a statutory duty to make decisions expeditiously.  This decision has been delayed by:

§                the Tribunal postponing a hearing for two months (15 August 2002 to 9 October 2002) at the applicant’s adviser’s request, and then postponing it a few more days to suit the adviser’s other commitments;

§                a month’s postponement after the hearing to allow the adviser to submit legal argument and country information in support of the applicant’s claim and to arrange, at her wish, other medical examinations.;

§                a further month’s postponement since the earliest medical appointment that could be secured for the applicant was the very date by which submissions had been due (11 November 2002);

§                a further two weeks since the adviser had submitted a medical report but not the promised legal/country information‑based submission.

In all, a decision has been postponed by more than four months at his adviser’s request, and while some apparent improvement in the applicant’s condition has been flagged there is no indication when, in the foreseeable future, he and his adviser would consider him fit to give evidence to the Tribunal.  In view of the Tribunal’s duty to make decisions quickly, I consider it inappropriate to delay the finalisation of this application any longer, and I am not satisfied that grounds exist that outweigh this obligation.

Thirdly, I am not satisfied as to the credibility of the applicant’s claim that he suffers severe trauma since a beating in 1999 by Islamic fundamentalists and their BNP supporters and that he is unable to give evidence in support of his application.  There are several reasons for this view:

§                There was no hint of such a beating and trauma in his initial set of claims.

§                I am not satisfied that a person in the applicant’s claimed condition would have been able to successfully obtain a passport and student visa, undergoing oral interviews at the High Commission in Dhaka and making written applications to the Australian college that accepted him as a student.

§                There is no mention in the exhaustive medical examination he underwent, of severe injury or trauma or hospitalisation – on the contrary, the physician examining him found that he as [sic] fit and able to take care of himself in Australia – and I am not satisfied that the physician would have been oblivious to, or have ignored, the condition of a person presenting as the applicant did at the hearing and who would have been harmed as dreadfully as claimed.

I have borne in mind that the applicant’s medical examinations occurred around the same time as the alleged attacks on him and I accept that post‑traumatic syndrome does not necessarily arise immediately after a traumatic incident.  However I consider that the significant physical harm allegedly suffered by the applicant (cranial damage, bullet wound, bruising from severe beating, severe damage to the shoulder) and at least some associated psychological stress would have been apparent to the examining doctors as well as been indicated in the X‑rays they took of the applicant if the applicant had experienced the claimed attack/s.

§                His former adviser, who has seen him several times since his application in January 2000, has stated that the applicant was able to fully understand matters and communicate claims, has been able to work while in Australia in employment which involves competent, if simple, social intercourse with members of the public (being a café waiter), and talked quite normally to him at a Bangladeshi function held at about the time of the hearing offered to the applicant.  I am not satisfied that the former adviser would have lied about these matters since I do not see that he would have gained anything by such behaviour and would, on the contrary, risk professional damage by it.

§                The applicant’s claims of harm from fundamentalists gives his application a new direction following the BNP election win of 2001, and this in my view could well support the view that the applicant is thinking clearly.

§                The evidence from Professor Harris, like the evidence from the 1999 Bangladeshi medical examination, shows no neurological abnormality or deficit and no sign of the brain damage the applicant claims to have suffered in an alleged beating.  I consider it unlikely that X‑rays of the applicant’s shoulder in 2002 (and of his skeleton and body tissue in 1999) would be normal if he had suffered shoulder injury so grievous in 1999 that he is apparently suffering badly from it even today.  I might be wrong about this.  In any event, confirmation of a shoulder injury does not in itself support the claim of trauma and a beating.

§                I observed the applicant at the hearing and could not be satisfied that his manifestations of a disturbed mind were not simulated.  I acknowledge that the same behaviour would have been observed by others who have examined and questioned the applicant, including the STARTTS social worker and the professor of general practice.’

evidence before the court

28                  The applicant was represented before the Court by Mr Reilly of counsel to whom the applicant had been referred for legal assistance under O 80 of the Federal Court Rules.  In addition to placing reliance on material within the Court Book prepared by the respondent’s solicitors, Mr Reilly called oral evidence from Ms Tomkins.

29                  Ms Tomkins gave evidence before the Court in which she confirmed the opinion, which had been earlier expressed in her report provided to the Tribunal, that when she interviewed the applicant he was not fit to give evidence to the Tribunal.  She also gave evidence that, having listened to the tapes of the applicant’s Tribunal hearing, her view had not changed.

30                  Under cross‑examination Ms Tomkins agreed that her interview with the applicant was her only opportunity to collect information about the applicant.  She acknowledged that she had not conducted tests on the applicant and she did not have the opportunity to observe him, for example, interacting with other people.  She agreed that the ‘Background History’ recorded in her report, including the experiences of trauma, had been provided by the applicant.  She said that her diagnosis that the applicant was suffering from a chronic severe major depressive disorder was based on symptoms and other matters reported to her by the applicant as well as on observations which she had made of the applicant.

31                  The applicant did not give evidence before the Court.  Nor did Mr Ahmed or any other person who had spent time with, or had the opportunity to observe, the applicant in his daily life at about the time of the Tribunal hearing.

consideration

Apprehended bias

32                  It was submitted on behalf of the applicant that:

‘There was unchallenged evidence from a clinical psychologist before the Tribunal that the Applicant was not in a fit state to give evidence: RD 97.  The Tribunal was invited to but did not exercise its power to have a medical examination made pursuant to s 427(1)(b).  In these circumstances the expert evidence on the issue of the Applicant’s fitness to give evidence was all one way.  It was not open for the Tribunal to reject this evidence – as it must have in finding the Applicant’s symptoms “simulated” – without having expert evidence to the contrary.  A reasonable observer may conclude from the Tribunal’s refusal to further postpone the hearing, to postpone giving its decision and to exercise its power under s 427(1)(d) to arrange its own medical examination that it had a closed mind to the application ie apprehended bias.  This is a breach of procedural fairness: Re RRT: Ex parte H (2001) 179 ALR 425 and so a jurisdictional error.’

33                  The test with respect to apprehended bias was stated by the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 as being whether:

‘… the parties or the public might entertain a reasonable apprehension that [the decision maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved [in the case].’

34                  This is not a case in which criticism is made of the manner or general conduct during the course of the hearing of the member who constituted the Tribunal.  Nor is it suggested that the member who constituted the Tribunal had committed herself to a particular answer to the question, or any part of the question, which she was ultimately required to determine in the course of reviewing the decision of the delegate of the respondent.

35                  Rather it is contended that because all of the expert evidence on the issue of the applicant’s fitness to give evidence was one way, the approach adopted by the member could cause a reasonable observer to conclude that the member had a closed mind concerning the application before her; that is, the application for review of the decision of the delegate of the respondent not to grant the applicant a protection visa.  As I understand this contention, it is argued that a reasonable observer might conclude from:

(a)                the Tribunal’s failure to further postpone the hearing; and

(b)               its failure to postpone giving its decision and exercise its powers under s 427(1)(d) of the Migration Act 1958 (Cth) (‘the Act’) to require the Secretary to arrange for a medical examination of the applicant;

that the member who constituted the Tribunal was ‘so committed to a conclusion already formed [with respect to the application before her] as to be incapable of alteration, whatever evidence or arguments may be presented’ (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 per Gleeson CJ and Gummow J, with whom Hayne J agreed, at [72]).

36                  While Ms Tomkins had expressed the view that the applicant was not in a fit state to give evidence to the Tribunal, her opinion as to the applicant’s psychological state was to a significant degree based on matters reported to her by the applicant.  Professor Harris had not directly expressed an opinion as to the applicant’s fitness to take part in a hearing before the Tribunal.  However, the opinions which he had expressed concerning the applicant were also to a significant degree based on matters reported to him by the applicant.  In determining the weight, if any, to be given to the expressions of expert opinion, the Tribunal was entitled to have regard to material before it which was contrary to, or threw doubt upon, the factual bases upon which the expressions of expert opinion were based.  Those factual bases were only to a limited extent matters of medical judgment.  They were overwhelming matters of a factual nature reported by the applicant.  The individuals who expressed the expert opinions relied upon had no special expertise in determining the truth or otherwise of the histories recounted to them by the applicant.  Nor would any other medically qualified expert who might have examined the applicant have had such expertise.

37                  Further, as is discussed below, it is not clear precisely what Ms Tomkins intended to convey by her expression of opinion that the applicant was not in a fit state to give evidence (see [61] below).  Professor Harris did not by his report comment on the extent to which, and the way in which, the symptoms which he observed in the applicant would have impacted on the applicant’s capacity to give evidence and present arguments to the Tribunal.

38                  It is not for the Court to make a judgment as to whether the decisions of the Tribunal not to further postpone the hearing or the publication of a decision and not to exercise its power under s 427(1)(d) of the Act were the correct or preferable decisions in the circumstances.

39                  In my view, the adjournments and extensions of time in fact granted to the applicant, together with the careful consideration given by the Tribunal to the submissions made to it, would dispel any apprehension in the mind of a reasonable observer that the member who constituted the Tribunal was unalterably committed to a conclusion already formed concerning the applicant’s entitlement to a protection visa.

40                  To the extent that the present application is sought to be supported on the ground that the Tribunal displayed apprehended bias, the application is, in my view, without merit.

Fitness to take part in the hearing

41                  Sections 420, 423 and 425 of the Act relevantly provide:

‘[420]    (1)   The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)   The Tribunal, in reviewing a decision:

(a)      is not bound by technicalities, legal forms or rules of evidence; and

(b)      must act according to substantial justice and the merits of the case.

[423]   (1)   An applicant for review by the Tribunal may give the Registrar:

(a)      a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b)      written arguments relating to the issues arising in relation to the decision under review.

(2)   The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.

[425]     (1)   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

              (2)   Subsection (1) does not apply if:

(a)      the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)      the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)      ….

              (3)   ….’

42                  In Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (‘MIMIA v SCAR’) the Full Court (Gray, Cooper and Selway JJ) held that a decision of the Tribunal was affected by jurisdictional error when the Tribunal proceeded with a hearing where, unknown to the Tribunal, the applicant before it was not in a fit state to take part in the hearing by reason of his extreme reaction to news of the death of his father.

43                  In MIMIA v SCAR the Full Court at [33], [37] and [38] observed:

‘Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].

… it is also clear that 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.

It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal’s jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a “jurisdictional error”.’

44                  At [41] their Honours concluded:

‘Given the findings of fact made by the primary judge that the respondent was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s 425 of the Act was not a meaningful one.  Through no fault of the Tribunal it was not aware of this.  Even so, the Tribunal did not comply with s 425 of the Act.  It did not extend a meaningful invitation to the respondent.  The respondent did not receive the fair hearing required by the Act.  Consequently the Tribunal made a “jurisdictional error.”’

45                  The present case involves different factual circumstances from those considered by the Full Court in MIMIA v SCAR.  In this case the Tribunal did know of the alleged unfitness of the applicant but, after considering the evidence and other material before it, reached a conclusion that the applicant was fit to take part in the hearing.  Nonetheless, the applicant contends, in effect, that following the decision of the Full Court in MIMIA v SCAR I am bound to proceed on the basis that:

(a)                compliance with s 425 of the Act was essential to the Tribunal’s jurisdiction to make its decision;

(b)               compliance with s 425 involves the Tribunal extending a meaningful invitation to the applicant; and

(c)                a meaningful invitation requires that the applicant in fact be in a fit state to represent himself before the Tribunal.

46                  The respondent accepted that MIMIA v SCAR is an authority binding on me which requires me to proceed on the basis that fitness to give evidence before the Tribunal is a jurisdictional fact upon which the Court must reach its own view.  The respondent argued, however, that as the Tribunal had considered this very issue, and concluded that the applicant was able to give evidence, the Court should give considerable weight to the assessment of the Tribunal.  Alternatively, the respondent made a formal submission that MIMIA v SCAR was wrongly decided.

47                  I have found this case extremely troubling.  Neither party contended that the decision of the Full Court in MIMIA v SCAR should be understood on the basis that the failure of the Tribunal to ensure that the respondent to that appeal received a fair hearing constituted a denial of procedural fairness amounting to jurisdictional error.  It seems to me to be arguable that the error of the Tribunal in that case was its failure to place the appellant on notice of its impression that his evidence was in important respects vague and confused so as to allow him an opportunity for explanation.  However, I accept that the language used by the Full Court is more readily open to the construction placed on it by the parties.

48                  One of the reasons why I am reluctant to embrace the construction of MIMIA v SCAR urged on me by the parties is that in many cases consideration of the psychological fitness of an applicant to give evidence will involve consideration of the truth or otherwise of the claims on which the applicant relies in seeking a protection visa.  The asserted psychological state of the applicant might well be argued, as in part it was in this case, to be the consequence of torture or other persecutory conduct experienced by the applicant in his or her country of nationality.  In such a case, a determination as to the psychological state of the applicant might require the Court to reach a view on whether the alleged torture or other persecutory conduct was in fact experienced by the applicant.  Yet it is the Tribunal, and not the Court, that the legislature intends should ordinarily make final decisions as to the veracity of an applicant’s claim to be entitled to a protection visa.  The Tribunal has experience and expertise in this area that the Court does not have.  In MIMIA v SCAR the Full Court had the benefit of a finding of the primary judge as to fitness that was based on factors unrelated to the factual basis of applicant’s claim to be entitled to a protection visa.  The difficulty to which I refer did not therefore arise in that case. 

49                  An additional, but related difficulty is that, as I understand the approach adopted in MIMIA v SCAR, if an applicant is not fit to give evidence before the Tribunal, there can be no hearing before the Tribunal as required by the Act.  A purported hearing, held while the applicant was not fit, will be of no statutory significance no matter what procedural assistance or other consideration was afforded to the applicant during the course of the hearing – and no matter what the outcome of the hearing.  No finding made as a consequence of the hearing will be of any significance.

50                  Nonetheless, I consider that I am compelled, as the parties both contended that I am, to proceed on the basis that the Tribunal in this case will have acted outside its jurisdiction if the invitation which it gave to the applicant under s 425 of the Act was not a ‘meaningful invitation’ because the applicant was not fit to give evidence and present argument to the Tribunal.

51                  MIMIA v SCAR provides little assistance as to the content of the requirement that an applicant be fit to give evidence and present argument to the Tribunal.  As the requirement of fitness in this sense is, as I understand the decision of the Full Court, a requirement to be found by implication in s 425 of the Act, the content of the requirement must be a question of law.  It is therefore necessary to identify the standard of fitness that the legislature is presumed to have intended to be implicit in s 425 of the Act.

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

53                  Some, albeit limited, guidance in this area can be gained from considering the common law concept of fitness to plead to a criminal charge.  While there are, of course, important differences between a criminal trial and a hearing before the Tribunal, both as to procedure and possible outcomes, in each case the ultimate determination may be of enormous significance to the individual concerned.  In Eastman v The Queen [2000] HCA 29; 203 CLR 1 the High Court gave consideration to the concept of fitness to plead to a criminal charge.  Significantly for present purposes Gleeson CJ at [24] observed that:

‘Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders.  The existence of the disorder does not, of itself, prevent them from being brought to trial.’

54                  The common law test of fitness to stand trial has been accepted by the High Court to require the ability to:

1.         understand the nature of the charge;

2.         plead to the charge and to exercise the right of challenge;

3.         understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged;

4.         follow the course of the proceedings;

5.         understand the substantial effect of any evidence that may be given in support of the prosecution; and

6.         make a defence or answer the charge.

See Kesavarajah v The Queen (1994) 181 CLR 230 at 245 per Mason CJ, Toohey and Gaudron JJ; Eastman v The Queen per Gaudron J at [58].

55                  The invitation which the Act requires that the applicant must receive is an invitation ‘to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review’ (see s 425).  For the invitation to be ‘meaningful’ in the sense discussed by the Full Court in MIMIA v SCAR, it would seem that the applicant should be competent to do that which the Act envisages, namely to give evidence and present arguments relating to the relevant issues.  However, in considering what is involved in a competence to do these things in any particular case, it is necessary to bear in mind the nature of the Tribunal and the way in which it can be expected to conduct a hearing.

56                  A Tribunal hearing, unlike a criminal trial, is not adversarial in nature.  Further, s 420 of the Act provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case.  The Tribunal thus has a capacity to modify its procedures to accommodate the particular circumstances of an applicant which a trial court does not have.

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

58                  I do not consider it wise to attempt to formulate an exhaustive test of ‘fitness’ to take part in a Tribunal hearing.  It seems likely that no single standard of fitness will be appropriate for all cases.  Fitness in the relevant sense will, in my view, require to be assessed having regard to the particular circumstances of each case including the intended purpose of the hearing before the Tribunal and the support and assistance available to the applicant. 

59                  In the particular circumstances of this case, notwithstanding that the applicant had the assistance of both Ms McAdam and Mr Ahmed, for the applicant to have been fit to take part in the hearing before the Tribunal he needed, in my view, the capacity to understand that the Tribunal was concerned that he had apparently advanced two separate sets of claims and that the Tribunal considered that his credibility was for this reason suspect.  He further needed, in my view, a capacity to understand and respond to the questions put to him by the Tribunal concerning his experiences in Bangladesh and the process by which his claim to be entitled to a protection visa had been prosecuted in Australia.

60                  In considering whether the applicant was fit, in the relevant sense, to take part in the hearing before the Tribunal, I have considered it appropriate to have regard principally to the two expert reports provided to the Tribunal, to the evidence given by Ms Tomkins to the Court and to the report of the hearing contained in the reasons for decision of the Tribunal.  No challenge to the accuracy of that report was advanced by the applicant who, as is mentioned above, was accompanied to the Tribunal hearing by both Ms McAdam and Mr Ahmed.  I have not found it necessary to determine whether or not the applicant has been accurately diagnosed as suffering from post‑traumatic stress disorder.  No evidence was led to suggest that that diagnosis had any practical significance for present purposes over and above the symptoms which the applicant was observed to display.

61                  Both in her report and in her oral evidence before the Court, Ms Tomkins expressed the opinion that the applicant was not fit to give evidence before the Tribunal.  While s 80 of the Evidence Act 1995 (Cth) has abolished the ‘ultimate issue rule’, Ms Tomkins’ expertise does not extend to answering what is in the present context a question of mixed fact and law.  There is nothing before me which makes clear the standard against which Ms Tomkins sought to judge the applicant’s fitness to give evidence before the Tribunal.  Nor did Ms Tomkins identify the specific deficiencies in competence from which, in her opinion, the applicant suffered.  However, I accept Ms Tomkins’ evidence to the extent that she reports that at about the time of the Tribunal hearing the applicant showed symptoms of depression and his speech flow was slow with deficient fluency and productivity.

62                  Professor Harris prepared his report after seeing the applicant for four consultations in November and December 2000.  I accept Professor Harris’ conclusion that the applicant exhibited psychomotor retardation and some slowness of speech when answering questions at that time.  I note, however, that Professor Harris found no evidence of neurological deficit and concluded that the applicant was oriented in space and time.

63                  The Tribunal’s assessment of the applicant’s presentation at the hearing is as follows:

‘The applicant at times presented as being deranged, clutching his forehead, holding one arm up in the air, rolling his eyeballs, sighing loudly, etc.  He pulled two or three hairs out of his head.  He sometimes said he could not understand questions put to him and sometimes did not answer questions.  He sometimes grew angry.  Whenever he appeared to have not understood a question the Tribunal took care to repeat the question through his friend, Mr Ahmed, who took an active part in the proceedings and who appeared to be able to make the applicant understand him.  The applicant’s readiness to answer questions lucidly grew during the course of the hearing, and the Tribunal noted that he gave evidence easily and fluently about his view of political conditions in Bangladesh.  By the end of the 2 ½ hour hearing the Tribunal was satisfied that the applicant had given a comprehensive account of his claims, consonant with the claims made to STARTTS (and, as it turned out later, with claims made to a medical examiner, Professor Harris).’

The accuracy of the facts concerning the applicant’s conduct contained in the above passage were not challenged before me.

64                  I have taken the view that the extreme behaviour of the applicant reported by the Tribunal (eg his presentation as deranged etc) may be discounted for present purposes.  Behaviour of this kind apparently was not consistently engaged in during the course of the Tribunal hearing.  Similar conduct was reported by Ms Tomkins in respect of her second interview with the applicant only to a limited extent; she found him ‘co-operative throughout the assessment process’.  Professor Harris did not report behaviour of this kind at all.

65                  As I disclosed to counsel during the hearing before me, I observed the applicant engaging in extreme behaviour of the kind described by the Tribunal at a direction hearing in this proceeding.  Like the Tribunal, I noted that the applicant could terminate the behaviour for the purpose of communicating with a person, who I believe to have been Mr Ahmed, who had accompanied him to the directions hearing.  I make use of my own observations of the applicant for the purpose of understanding and considering the Tribunal’s assessment of the applicant but not otherwise.

66                  In view of the extreme nature of the behaviour described by the Tribunal, I conclude that its effect, if genuine and to any degree persistent, would be to render the applicant unfit to function in the community without very considerable assistance.  No evidence was placed before the Tribunal or the Court from any person who spent time with the applicant in the community at about the time of the Tribunal hearing which suggests that behaviour of this extreme nature was exhibited by the applicant in his community life.  Indeed, no evidence at all was placed before the Court from any person who had observed the applicant going about his daily life.  I do not find it necessary to make a positive finding that the extreme behaviour of the applicant was simulated; it is possible that it was engendered for a period or periods by stress associated with the hearing.  However, I am satisfied that it was not sufficiently persistent to prevent the member of the Tribunal, who may be assumed to have experience in interviewing individuals under stress, from conducting the hearing as required by the Act.  I am also satisfied that it was not sufficient of itself to prevent the applicant from giving evidence and presenting arguments to the Tribunal.

67                  If the evidence of the extreme behaviour exhibited by the applicant is put to one side, the remaining evidence supports a conclusion that, at the time of the Tribunal hearing, the applicant exhibited symptoms of psychomotor retardation and slowness of speech when answering questions consistent with post‑traumatic stress disorder and depression.  I so find.  As is mentioned above, I gain no practical assistance from the conclusion that the applicant’s symptoms were consistent with post‑traumatic stress disorder.  I am satisfied that he was at the time of the hearing oriented in space and time.  I am not satisfied that he had any neurological deficit.

68                  I accept the submission of the respondent that, in making a judgment as to the fitness of the applicant to take part in the hearing before the Tribunal, I should accord weight to the view taken by the Tribunal.  The Tribunal was satisfied that the applicant knew the purpose of the hearing and had been able to give a comprehensive and lucid account of his claims.  I do not consider that this assessment is rendered improbable by the conclusions that I have reached above based on the expert evidence placed before me.

69                  It seems to me that, by analogy with a claim of procedural unfairness, the applicant must bear the onus of establishing that he was unfit to take part in the Tribunal hearing (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 195 ALR 502 at [36] per Glesson CJ; Rose v Bridges (1997) 79 FCR 378 at 386 per Finn J).  Having regard particularly to the assessment of the applicant made by the Tribunal member, I am not satisfied that at the time of the Tribunal hearing the applicant lacked the capacity to understand the concerns relating to his claim to be entitled to a protection visa that the Tribunal raised with him, including the Tribunal’s concern as to his credibility.  Nor am I satisfied that he lacked the capacity to understand and respond to the questions put to him by the Tribunal.  Further, I am not satisfied that the applicant lacked the capacity to give an account of his experiences in Bangladesh or the capacity to present arguments in support of his claim to be entitled to a protection visa.  For these reasons I am not satisfied that the applicant’s psychological condition was such as to deprive the hearing conducted by the Tribunal of the meaning which the Act intended it to have.

conclusion

70                  I am not satisfied that it has been demonstrated that at the time of the hearing before the Tribunal the applicant was unfit to take part in that hearing.

71                  The application will be dismissed with costs.

Associate:

Dated:              22 September 2003