FEDERAL COURT OF AUSTRALIA

Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166

MIGRATION LAW – obligation to invite applicant to appear before Tribunal – refusal to grant further adjournment for applicant suffering fluctuating psychiatric illness despite substantial delay before offer of hearing dates – breach of natural justice – decision set aside

Migration Act 1958 (Cth) s 420, s 425

Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359applied

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 applied

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003)128 FCR 553 applied

APPLICANT S296 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 2450 OF 2003

GYLES J

28 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal of 5 June 2000 be quashed.

2.                  The application for review be remitted to the Tribunal to be determined according to law.

3.                  The first respondent is to pay the costs of the applicant, including costs in the proceeding in the High Court prior to remittal to this Court.

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

REASONS FOR JUDGMENT

1                     The system has not served the community well in this case. The applicant arrived in Australia on 27 January 1998 on a temporary business visa. He applied for a protection visa pursuant to the Migration Act 1958 (Cth) within a month or so. When that was declined, he made an application to the Refugee Review Tribunal (the Tribunal) for review of that decision on 1 May 1998. For reasons which are not explained, the first hearing which he was offered was on 10 December 1999, more than 18 months after the request for review. The Court, of course, is aware that there was a considerable crush of work to be dealt with at that time. However, the reality was that a great length of time had expired.

2                     As the chronology of the matter has been fully set out in the reasons of the Tribunal, I will not repeat it here. Suffice to say that the first scheduled hearing of 10 December 1999 and a second scheduled hearing of 21 March 2000 were not insisted upon by the Tribunal in view of the applicant’s psychiatric difficulties which were raised by the applicant’s adviser. The Tribunal, when dealing with the inability of the applicant to appear for the second scheduled hearing, refused a request that the matter be effectively stood over for a further period of about three months in order that the applicant’s psychiatric position could be better assessed. The Tribunal informed the adviser to the applicant by letter that the member reviewing the case was not minded to agree to that request subject to any submissions that the applicant’s adviser may make. That letter then set out a history of the case and dealt with both the request for a further adjournment and with some substantive aspects of the case. The Tribunal invited a response by 18 April 2000. On 17 April 2000, pursuant to a request for additional time, the time for response was extended to 23 May 2000. On 17 May 2000 the adviser to the applicant wrote to the Tribunal as follows:

‘We refer to your letter to us dated 28 March 2000. I have not had a chance to discuss [the applicant’s] medical condition with either Dr Samad or Dr Zolfaghari. I understand from [the applicant] that his medicare card had expired and he could not make his last appointment with Dr Samad. Instead he has been given an appointment in the second week of June. I propose to discuss [the applicant’s] medical condition with Dr Samad following this consultation. If there is a reasonable prospect of improvement in [the applicant’s] condition within the next few months then it would be consistent with the legislation that [the applicant] be given an opportunity to appear at a hearing within such reasonable time.’

The adviser also forwarded certain other material in relation to the merits of the matter. The letter concluded as follows:

‘We are presently collecting data on the testimony of torture and trauma victims from STARTS, which might explain the apparent inconsistencies in [the applicant’s] accounts, which you have alluded too. We submit that [the applicant’s] mental state and symptoms would corroborate, to some extent, the fact that he has suffered some major torture/trauma before he left Pakistan, given that he had no history of mental illness prior to this onset.

We wish to address the Tribunal on this aspect after consulting with Dr Samad and [the applicant].’

3                     So far as the evidence shows, the next communication from the Tribunal to the applicant was dated 9 June 2000 and advised that the Tribunal had made a decision which would be handed down on 27 June 2000. That decision was subsequently forwarded to the applicant with a copy to the adviser.

4                     In that part of the Tribunal’s reasons under the heading ‘Findings and Reasons for Decision’, the Tribunal first of all dealt with the decision to go ahead without giving the applicant a further opportunity to appear. I note that the Tribunal accepted that the applicant had clearly suffered some trauma in the past, consistently with the diagnoses offered by both a psychologist and a psychiatrist. The operative decision-making part of the reasons for going ahead can be gathered sufficiently from the following extract:

‘As indicated in the Tribunal’s letter dated 28 March 2000, the Tribunal is required, under section 420 of the Act, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. While the Tribunal is obliged under section 425 of the Migration Act to invite an applicant to appear before the Tribunal to give evidence (as it has done in the present case), I do not consider that the Tribunal is obliged to keep postponing a hearing where, as in the present case, there is clear evidence that the Applicant is mentally unfit to give evidence at a hearing before the Tribunal and where the expert evidence indicates that there is no certainty when, if ever, the Applicant will have recovered sufficient lucidity of mind to be able to attend a hearing before the Tribunal.

It has now been six months since the Tribunal first invited the Applicant to appear before it and the psychiatrist’s report indicates that the Applicant’s condition was present when he first saw the Applicant on 17 June 1999, almost a year ago. I do not consider that it is appropriate for the Tribunal to keep granting repeated postponements of the hearing in the absence of evidence that at some time in the reasonably foreseeable future the Applicant will in fact be fit to attend a hearing. In the circumstances of the present case I consider it appropriate to make a decision on the basis of the material already before me.’

5                     It is submitted on the part of the applicant that the decision to proceed failed to comply with the obligations of s 425 in the context of the Act as it then stood and was also a breach of the rules of procedural fairness sufficient to amount to jurisdictional error. I am not satisfied that this was a breach of s 425 of the Act for the reasons explained by Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (NAHF) (2003) 128 FCR 359, particularly at [25]–[30]. However, I am satisfied, in the particular circumstances of this case, that what occurred was an unreasonable refusal of an opportunity to present a case sufficient to breach the rules of natural justice or procedural fairness, again as generally explained by Hely J in (NAHF) at [31]–[39], that reasoning being supported, at least, by the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003)128 FCR 553. I also refer to the passage relied upon by counsel for the applicant from the judgment of Gummow and Gaudron JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40].

6                     I take that view not because of any general fault in the reasoning of the Tribunal, but because of the wider context in which that decision came to be made. There can be no general disagreement with the proposition that the Tribunal is under a duty to deal with a review in a ‘fair, just, economical, informal and quick’ manner (s 420). There will be circumstances where the incapacity of an applicant is such that the review by the Tribunal simply must take place without the benefit of oral evidence or oral contribution from that applicant.

7                     However, in the present case, the Tribunal member does not appear to have given consideration to the fact that the application for review had been on foot since 1 May 1998. This, when taken together with the fact that the Tribunal member accepted that there were genuine psychiatric problems, led to a situation which, in my respectful submission, required that there be at least another opportunity given to put forward or to seek to put forward material from the applicant in person. After all, the Tribunal member had made it clear enough that he was not proposing to, and could not, find for the applicant on the basis of the written material. Thus, the appearance of the applicant would be essential to change the mind of the Tribunal member. There were, as submitted by counsel for the applicant, some indications in the evidence of fluctuations in the psychiatric condition of the applicant. There is also merit in the submission on his behalf that, given that it was accepted that there had been a trauma earlier in his life, there was a lively issue as to the cause of that trauma, and the effect of that cause upon a claim for a protection visa.

8                     I must say that there is, and will be, a great air of unreality in dealing in August 2006 and thereafter with an application for a protection visa first made at the end of February 1998. I am also appreciative that, if the decision is set aside, the matter may be reconsidered in a different statutory setting. Whether that be the case or not, I cannot be troubled by the effect of that as the statute will prevail.

9                     I should add that, in my opinion, there was no merit in the alternative point put by counsel for the applicant which was founded upon the acceptance by the Tribunal of the existence of an earlier trauma and sought to set aside the substantive reasoning on that footing. I also note that the Minister has very properly not sought to rely upon delay as a separate and independent ground of refusal of relief in this case. There is no need for me to do more than note that circumstance.

10                  The following orders are hereby made absolute:

(1)               The decision of the Refugee Review Tribunal of 5 June 2000 be quashed.

(2)               The application for review be remitted to the Tribunal to be determined according to law.

(3)               The first respondent is to pay the costs of the applicant, including costs in the proceeding in the High Court prior to remittal to this Court.

Associate:

Dated: 30 August 2006