FEDERAL COURT OF AUSTRALIA

SZGUR v Minister for Immigration and Citizenship
[2010] FCA 171

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders made by the Federal Magistrates Court on 12 August 2009 be set aside and in lieu thereof it be ordered that:

(a)                there be an order in the nature of an order absolute in the first instance for a writ of certioriori to quash the decision of the second respondent signed on 3 September 2008 to affirm the decision of the first respondent not to grant the applicant a protection visa;

(b)               there be an order in the nature of a writ of mandamus directing the second respondent to hear and determine the application for review according to law;

(c)                the first respondent pay the applicant’s costs.

3.                  The first respondent pay the appellant’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Nepal having arrived in Australia in December 2004.  In January 2005 he applied for a protection visa under s 36 of the Migration Act 1958 (Cth).  He was unsuccessful in that application before a delegate of the Minister and the Refugee Review Tribunal.  His application to the Federal Magistrate’s Court for constitutional writ relief against the tribunal’s decision also failed.

2                     This appeal is concerned with two principal questions.  First, whether the tribunal had an adequate basis, rationally, to take into account, as it said it had, a psychiatric diagnosis that the appellant suffered from depression and bipolar mood disorder.  It rejected these as capable of explaining why his evidence was inconsistent and he was, as he claimed, forgetful.  Secondly, whether the tribunal ought to have considered the appellant’s request that it exercise its power under s 427(1)(d) of the Act to ask the Secretary of the Department to obtain a psychiatric examination of the appellant.

The appellant’s claims

3                     The appellant claimed that he was entitled to protection because of his fear that the Nepalese army would harm him for reasons of his political opinion.  He claimed to have been associated with the Maoist political movement in Nepal, to have collected donations over the long period for that movement from various businesses and others in the capital, Kathmandu, where he had a business, and to have made arrangements relating to security for leaders of the Maoist movement when they travelled inside Nepal.  It is not necessary to go into detail about his claims, for the issues raised by this appeal fall within a narrow compass.

4                     The review of the appellant’s claims has had an unfortunate history, through no fault of his own.  The current proceedings arise after the tribunal on a third occasion affirmed the delegate’s decision to refuse to grant him a protection visa.  Two earlier tribunal decisions had been set aside by the Federal Magistrates Court.  Perhaps unsurprisingly, when the tribunal constituted by the third member held two hearings in March and April 2008, it found that there were inconsistencies between the appellant’s various accounts of his activities relating to matters that were central to his claims.

5                     On 11 April 2008, after the fourth hearing before the tribunal (which was the second hearing before the third member), the tribunal wrote a letter to the appellant under s 424A of the Act.  That letter identified inconsistencies and contradictions in the appellant’s evidence and other material he had provided in support of his application for a protection visa that the tribunal considered would be a reason, or part of a reason, for rejecting his claims.  It told the appellant that this was relevant to his review because those differences indicated that he may not have been a truthful witness and may have not told the truth in his original application, or in evidence to the tribunal in the various stages of the review, including during the four hearings.

6                     In May 2008 the appellant’s new migration agent, Oli & Associates, responded to the tribunal’s letter.  The agent said that he had interviewed the appellant and had reviewed the information in his case, making an assessment of his circumstances, including his mental health.  The agent provided the tribunal with a handwritten certificate by a consultant psychiatrist that the appellant was suffering from depression and would be unfit for work for the next two weeks from 14 May 2005.  The agent also provided the tribunal with five statutory declarations made by friends of the appellant who had known him for varying lengths of time.  Each of the statutory declarations referred to the deponent’s perception of the appellant as a person who had a bad memory, particularly for important dates and events.  The deponents referred to his appearing depressed and stressed and that this condition may have affected his ability to remember matters.

7                     The agent asked the tribunal for an extension of time because of the appellant’s depression and the agent’s previously planned trip overseas.  The agent informed the tribunal:

“Moreover, looking at his circumstances, his claims (that he forgets things very quickly & provides different account of an issue), his current depression and the statutory declaration signed by few Australians closely known to him, I have asked him to obtain detailed psychological report.” [sic]

8                     The tribunal respondedto the agent’s request and granted an extension of time until early July 2003.  On 20 June 2008 the agent wrote to the tribunal again.  He enclosed a further medical report dated 16 June 2008 from the consultant psychiatrist that said that the appellant was being treated for bipolar mood disorder.  The psychiatrist said that the appellant was receiving regular medication and attended consultations with him.  The agent’s letter also attached two statutory declarations to the same effect as the earlier ones, namely that the appellant was forgetful and exhibited signs of stress.

9                     The agent’s letter of 20 June, dealt with the matters raised in the tribunal’s letter under s 424A of the Act.  First, the agent confirmed that the appellant could not remember things that had happened and accepted that the information he had provided to the tribunal was contradictory.  The agent said that the appellant could not tell which information was correct and which was not.  The agent said that he had attempted to get matters clarified, but that the appellant had “mixed up the things all the time”.  The agent also wrote that the appellant had asserted that he had told the tribunal during a hearing of his forgetfulness.  Secondly, the agent said that because of the appellant’s ongoing mental problems and his depression, he was unable to provide categorical comments on the issues that the tribunal had raised and that the appellant appreciated that his problem of forgetfulness was getting worse.  Thirdly, the agent said that the information provided in support of the original application for a visa and at earlier times was more likely to have been correct than what the appellant had provided on later occasions.  Fourthly, the letter went on to say:

“I previously asked him to present detailed psychiatric report.  I had given him a letter to hand to his psychiatrist.  Now he claims that I never gave him such a letter.

For the above reasons I would like to request you to assess his application based on his original application and evidences concerning his mental health.

To further assess his mental health situation, I would like to request you to arrange independent assessment of his mental health, if required.  The [appellant] confirmed that he would pay the cost of the assessment.”  (emphasis added)

10                  The last request sought to invoke the tribunal’s power under s 427(1)(d) of the Act to require the Secretary of the Department to arrange for a medical examination.  The power of the tribunal was found in s 427(1)(d) as follows:

“(1)      For the purposes of the review of the decision, the Tribunal may:

            …

(d)        require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give the Tribunal a report of that investigation for examination.”

11                  The tribunal’s decision record did not refer at all to the agent’s request for the appellant to be medically examined.  It had recited the terms of the agent’s letter of 20 June 2008 in considerable detail, in the section of its decision record headed “Claims and Evidence”, but that recitation also did not refer to the agent’s request for a further independent assessment of the appellant’s mental health.

12                  The tribunal came to a number of adverse credibility findings about the appellant in the section of its decision record headed “Findings and Reasons” and it found that he was not a credible witness.  It observed that, both in writing and orally, he had made a number of substantive incorrect, as well as inconsistent and contradictory statements to the Department and the tribunal.  The tribunal concluded that these matters indicated that, contrary to his claims:  he was not a supporter of, or closely associated with, the Maoists;  did not collect money for them;  did not provide them with security information;  was not being sought by the army;   and he and his family had not gone into hiding.

13                  Critically, the tribunal said:

“125.    In reaching the above finding the Tribunal has taken into account the statutory declaration provided by the applicant’s friends as to his forgetfulness.  In reaching the above finding the Tribunal has also taken into [sic] the medical certificates of Dr Masood Khan, consulting psychiatrist the first of which stated that he was suffering from depression and the other which stated that the applicant is being treated for Bipolar Mood Disorder and is receiving regular medication and attends consultations with him.  The Tribunal has also taken into account that the applicant, by being separated from his family, is in a stressful situation.  Further, the Tribunal has taken into account the time that has lapsed since the applicant left Nepal and he lodged the application.  However, the Tribunal was not provided with any further details about the applicant’s condition by himself or Dr Khan nor did the medical certificates specifically address the issues raised in the Tribunal’s letter of 11 April 2008 or the applicant’s forgetfulness.  Further, there is a difference between forgetting everyday events, dates and names and forgetting specific details that are central to the applicant having to leave Nepal even if the Tribunal takes into consideration, in combination, the length of time since the applicant left Nepal, the applicant’s claimed forgetfulness and depression/Bipolar Mood Disorder.  In particular the Tribunal would expect the applicant to remember when he started to collect donations or, at least, with better specificity than a difference of 7 years (between 2045 and 2052) and where he collected those donations whether it was in a rural area or where he had operated his business for sometime.  The Tribunal would also expect the applicant to remember who provided assistance to him at the airport so he could leave Nepal and whether he had arranged this assistance the day before or it happened by chance on the day.  Further, the Tribunal would expect the applicant to remember if the assistance was provided by a relative or not, irrespective of how long it was since he left Nepal.”  (emphasis added)

14                  The tribunal accepted the generalised evidence of the appellant’s friends in their statutory declarations about his forgetfulness.  There was no medical evidence before the tribunal other than the consulting psychiatrist’s two letters identifying the appellant’s depression and bipolar mood disorder.  In particular, there was no evidence of the effect, if any, that each of those conditions may have had on the appellant’s memory.  This raised the question of what the tribunal asked itself when it stated that it had “taken into account”, or “into consideration” the appellant’s claimed forgetfulness and the relevance to this of his depression and bipolar mood disorder.  However, as is evident from the quoted passage, which is the only place in which the tribunal dealt with this issue, it gave no reasoning process of how it took into account or consideration the medical conditions diagnosed by the consultant psychiatrist, beyond identifying a series of expectations that the tribunal entertained as to what a person, presumably affected by those conditions, would nonetheless remember.

The parties’ submissions

15                  The appellant argued that the tribunal had no material before it on which to found the expectations which it identified.  There was no evidence before the tribunal as to what, if any, effect either depression or bipolar mood disorder had on the appellant’s memory.  That sets the scene for the substantive issues in the appeal.  The appellant argued that this raised two substantive questions.  First, whether the tribunal in fact gave proper, genuine and realistic consideration to his claims.  He argued that the tribunal made a jurisdictional error in constructing a series of expectations without any evidentiary foundation, and in circumstances where the tribunal had not sought further expert evidence.  Secondly, he argued that in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ left open the possibility that a jurisdictional error could be committed by a decision-maker, such as the tribunal, that failed to make an obvious enquiry about a critical fact the existence of which was easily ascertained.  Their Honours observed that in some circumstances such a failure could supply a sufficient link to the outcome to constitute a failure to review, and so give rise to a jurisdictional error by a constructive failure to exercise jurisdiction.

16                  The appellant argued that here, the tribunal failed to enquire about the appellant’s mental health so as to ascertain what, if any, effect depression and or bipolar mood disorder may have had on his memory.  He contended that the tribunal did not consider the request made by the agent that it obtain a medical report.  The appellant argued the tribunal had failed to make this obvious enquiry about a critical fact, namely the effect of his medical condition, the quality of his memory and evidence.  The context for such an enquiry arose because of the evidence of his forgetfulness and the agent’s assertion, in his two letters to the tribunal in May and June 2008, that he had asked the appellant to obtain a psychiatric report.  In the second letter, the agent referred to the appellant’s denial of the agent’s earlier request as a further matter suggestive of memory lapses by the appellant on important questions.  In effect, the appellant contended that these matters were suggestive of a failure by the tribunal to consider the comments and response made by the appellant, through the agent, to its letter under s 424A.

17                  The appellant argued that the tribunal had no medical or psychiatric expertise and that the evaluation of the effect on a person’s memory of depression or bipolar mood disorder was not a matter of common knowledge or experience.  He said that without a medical report explaining the significance of those conditions the tribunal was guessing about their effect in its reasons that recorded it having taken into account the psychiatrist’s medical certificate of the conditions.  From this he argued that a “guess” was a jurisdictional error because it amounted to a failure by the tribunal properly to conduct the review by failing to give his claims proper, genuine and realistic consideration on the material before it.  And, he contended that it had not given such consideration to his request for the tribunal to obtain a medical examination, referring to what Kenny and Lander JJ said (Spender J agreeing) in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2006) 88 ALD 304 at 316-317 [38].

18                  In response, the Minister contended that the tribunal was not under any obligation to consider a request for a medical examination made outside the ambit of ss 425, 425A and 426 of the Act.  These provided that where the appellant had been invited to a hearing by the tribunal he might ask the tribunal to obtain evidence from other persons.  But, as s 426(3) expressly provided, the tribunal was bound only to have regard to an applicant for review’s wishes, but it was not required to obtain evidence orally or otherwise from any person named by that applicant in a notice responding to the invitation to attend the hearing.  The Minister argued that because of the terms of Div 4 of Pt 7 of the Act, individually or in conjunction with s 422B (which provides that the Division is an exhaustive statement of the natural justice hearing rule with respect to the matters with which it deals), even though the agent had requested the tribunal to obtain an expert psychiatric report into the appellant’s condition the tribunal was not required to address that request at all.  In addition, the Minister contended that the inquiry suggested by the appellant, namely that the tribunal seek a medical examination, was not “an obvious enquiry of a critical fact the existence of which is easily ascertained” in the sense referred to in SZIAI 259 ALR at 436 [25].

19                  Alternatively, the Minister submitted that the inference should be drawn that the tribunal had considered and refused the request.  The Minister submitted that it was not required to give reasons for that refusal in its written statement under s 430(1) of the Act and so it had committed no error.  The Minister argued that the tribunal was entitled to pursue its inquisitorial function of review as it saw fit.  He contended that the tribunal had to make assessments of credibility, particularly in the context of inconsistent or contradictory accounts of important events by applicants on a routine basis.  In those circumstances, the Minister argued that the tribunal was well able to form a view as to its expectations of the applicant’s capacity to remember important dates, events or circumstances.  In substance, the Minister embraced the trial judge’s finding that:

“205.    Plainly, in the current case, the Tribunal was making an assessment as a lay Tribunal, as to what it believed to be the difference between forgetting everyday events and forgetting specific details central to an applicant’s claims. On what was before it, it was open to the Tribunal to have an expectation that the applicant, notwithstanding the evidence of his forgetfulness, and the evidence of his bipolar mood disorder and depression (none of which remotely suggested a complete state of memory loss or catatonic mental condition on the part of the applicant), that even someone with some memory loss and difficulties should be able to remember claims critical and central to the claim to fear to return to Nepal. Memory difficulties which, it must be remembered, were never attested to by a medical practitioner, but rather lay persons, who were friends and acquaintances of the applicant.”

How did the tribunal take the medical conditions into account?

20                  The tribunal explained at [125] of its decision record, that the two medical certificates did not specifically address the issues raised in its s 424A letter.  The certificates did not draw or suggest a connection between the conditions of depression or bipolar mood disorder and the appellant’s asserted forgetfulness.  The tribunal was entitled to approach making its assessment of the appellant’s evidence on that basis;  that is, that it had no evidence of any connection between his medically diagnosed conditions and his asserted forgetfulness.  It could take into account that he suffered from those conditions but was not able, and had no evidence, to understand what, if any, effect the conditions had or could have had on his memory or the quality of his evidence.

21                  The difficulty with the tribunal’s reasons is that on one reading it can be seen to have imposed a standard for what the appellant could be expected to remember even if he did suffer from depression and bipolar mood disorder.  Yet, the tribunal did not explain how it found such a standard or how it took the medical conditions into account, and discounted them, in arriving at its finding that they did not explain the inconsistencies or claimed forgetfulness in the appellant’s evidence.  The tribunal’s reasons merely asserted that there was a difference in forgetting differing classes of facts even after taking into consideration in an unspecified way the appellant’s psychiatric conditions.  It gave no reasons other than that it had an expectation that the appellant would remember the facts that it identified.  Once again, the source of its expectation was not identified by the tribunal.

22                  If a person’s memory is impaired, there is no apparent standard by which to judge what he or she should remember as against what he or she does or does not actually remember.  There was no medical evidence about how memory impairment operates, if at all, in a person suffering from depression and or bipolar mood disorder.  In that context, it is not immediately evident how the tribunal gave consideration to those conditions, as it said it had, in making its findings.  However, the evidence before it did not draw a connection between the conditions and any effect they might have had on the appellant’s memory.

23                  On balance, I am of opinion that a fair reading of the tribunal’s reasons does not reveal that it made a jurisdictional error in how it arrived at its rejection of the appellant’s explanations that his inconsistent and contradictory evidence should be excused because of his forgetfulness.  The inference is open that it proceeded on the evidence (or rather the absence of evidence about any connection between the conditions and the appellant’s memory) on the basis that the conditions did not affect his memory.  That is, the tribunal understood that the appellant had the medical conditions but was unable to use them to make a finding that they impaired his memory to any substantive degree because there was no evidence that they did:  Minister for Immigration and Multicultural and Indigenous Affairs for SGLB (2004) 207 ALR 12 at 49-50 [126]-[127] per Callinan J;  cp Re Minister for Immigration Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 71 [51]-[52] per McHugh and Gummow JJ, see too per Gleeson CJ at 63-64 [15], per Callinan J at 98 [173].

Should the tribunal have obtained a medical examination?

24                  In SGLB 207 ALR at 16 [19] Gleeson CJ said (see too at 21-22 [43] per Gummow and Hayne JJ and 49 [124]-[125] per Callinan J):

“[19]    Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the tribunal, apprehending that the respondent might be disadvantaged by “memory or other difficulties”, of its own motion, and with the respondent’s agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The tribunal was not then obliged to embark upon an open-ended investigation of the respondent’s psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage. It was not suggested in the letter of 30 July that anything the respondent said at the hearing of 26 June, or in his later affidavit, was unreliable.”  (emphasis added)

25                  In that case there was medical evidence that the applicant for review had post traumatic stress disorder.  The tribunal accepted that this condition may have resulted in his evidence containing inconsistencies and, in those circumstances it did not use them against him.  Rather, the issue there was whether a medical examination would have provided evidence that the condition was caused by the persecution which the applicant for review claimed he had suffered.  Gummow and Hayne JJ said that, under the Act, the tribunal did not have any obligation to obtain a psychiatric report and did not have to accede to a request that it obtain one.  They referred to the power of the  tribunal to obtain a medical report under s 427(1)(d) of the Act but noted that (SGLB 207 ALR at 20 [33], 21-22 [43], footnotes omitted): 

“… the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire.”

26                  Here, there is no express reference in the tribunal’s reasons to the appellant’s agent’s request that the tribunal obtain a medical examination of the appellant.  The agent had sought this having explained that the appellant’s ongoing mental problems and depression resulted in him not being able to respond categorically to the issues that the tribunal had raised in its s 424A letter in the context of his problem of forgetfulness getting worse.

27                  In Maltsin 88 ALD at 316-317 [38] Kenny and Lander JJ discussed s 361, the analogue of s 426 in respect of the Migration Review Tribunal’s functions, saying:

“By virtue of s 361(3), the tribunal is obliged to have regard to any notice given by an applicant under s 361(2) or (2A) of the Act. This means that the tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37] and Mazharat at [31]. It follows that the consideration that the tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (cf W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 ; [2002] FCAFC 211 (W360/01A) at [2] per Lee and Finkelstein JJ and [30]–[32] per Carr J), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the tribunal. These considerations flow from the nature of the tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The tribunal must bear in mind this statutory objective when considering the weight to be given these matters.”  (emphasis added)

28                  The issue here is whether, first, the tribunal overlooked, ignored or rejected the agent’s request and, secondly, if it did, whether it nonetheless had an obligation to obtain the medical report because this was an obvious enquiry about a critical fact:  SZIAI 259 ALR at 436 [25].

29                  The agent’s letter had given an explanation for the appellant’s failure to obtain a medical report himself – namely that although the agent had asked him to do so, the appellant later denied that he had been asked.  This explanation was not addressed by the tribunal in its reasons.  But the agent had put it forward to the tribunal in conjunction with his argument that the appellant’s mental problems and depression were affecting his memory.  The reason for the agent seeking that the tribunal obtain a medical report was obvious:  namely, it would explain how the appellant’s memory was affected and may have enabled the tribunal to understand the inconsistencies and contradictions that it had referred to in its s 424A letter in that light.

30                  Since s 424A(1)(c) required that the tribunal invite the appellant to comment on and respond to its concern expressed in its letter written pursuant to s 424A(1), the Act required the tribunal to have regard to the comments and response in the performance of its function of conducting its review.  It would have been open to the tribunal to reject the request for it to obtain a medical examination of the applicant.  After all, there was evidence before it that his migration agent had advised him to obtain one himself and he had not done so.

31                  However, there is nothing in the tribunal’s decision record or in the appeal papers to suggest, first, that the tribunal understood that the agent had asked it to exercise its power under s 427(1)(d) to obtain a medical examination or, secondly, that it had given any, let alone proper, genuine and realistic consideration to the request.  In Maltsin 88 ALD at 316-317 [38] the Full Court identified the latter function of consideration as a jurisdictional requirement where an applicant has made a request.

32                  There may be many situations where the tribunal need not elaborate on why it did not exercise a power to make a further enquiry:  cf SGLB 207 ALR at 49 [124]-[125] per Callinan J.  But, here the appellant’s agent’s comments and response in answer to the s 424A letter suggested that his medical condition and forgetfulness were linked and that a medical examination should be obtained.  There is nothing to suggest that the tribunal engaged in an active intellectual process or otherwise considered the request that it exercise its power:  see too Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [47]-[49] per Lindgren, Foster JJ and myself;  Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-182 [105]-[107] per myself.

33                  The tribunal is not required to deal in its written statement under s 430(1) with every possibility that could be adverted to or is raised by the applicant for review.  The duty to prepare a written statement must be sensibly interpreted and applied with a view to achieving good and effective administration:  Dornan v Riordan (1990) 24 FCR 564 at 567 per  Sweeney, Davies and Burchett JJ.  And the obligation imposed by s 430(1) requires the tribunal to set out and refer to the matters identified in each of paragraphs (a)-(d) of the subsection.  That obligation involves the tribunal recording what it did, not what it was asked to do, or supposed to do, or might have done.  Nor as McHugh, Gummow and Hayne JJ explained in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 345-346 [67]-[69], 349 [77], does s 430(1) require the tribunal to set out findings that it did not make.  They said (Yusuf 206 CLR at 346 [69]):

“It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material (Repatriation Commission v O’Brien (1985) 155 CLR 422 at 446, per BrennanJ;  Sullivan v Department of Transport (1978) 20 ALR 323 at 348-349, per Deane J, at 353 per Fisher J;  cf Fleming v The Queen (1998) 197 CLR 250 at 262-263 [28]-[29]). This may reveal some basis for judicial review .... in proceedings brought under s 75(v) of the Constitution. ... The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).”  (original emphasis in italics)

34                  Since the tribunal did not refer to the request or the test it applied to exclude the possible effect of depression and or bipolar mood disorder on the appellant’s memory, let alone indicate any consideration of these matters, it is safe to infer that it either overlooked them or had no good reason for not considering them:  Re Minister for Immigration and Multicultural and Indigenous Affairs;   Ex parte Palme (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ;  see too Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ who said that where an issue had been raised by an applicant for review on the evidence and he or she had made contentions on it, if it were resolved one way it would be dispositive of the tribunal’s review, a failure to deal it in the written statement under s 430(1) may raise a strong inference that it has been overlooked.  But, they cautioned that such an inference should not too readily be drawn where the tribunal’s reasons are otherwise comprehensive “… and the issue has at least been identified at some point”.

35                  In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96 [16] Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said:

“Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.”

36                  As the Full Court showed in Maltsin 88 ALD at 316-317 [38], the procedures that the tribunal had to follow in the course of its review included giving proper, genuine and realistic consideration to the serious request by the appellant’s agent for a medical examination.

37                  The Minister argued that the inference should be drawn that the tribunal did consider and reject the request.  If it had done so, it could have proceeded to make its decision on the basis that it did.  But, there is no material, including any reference to the request, on which I can be satisfied that it was considered.  There was no indication in the tribunal’s written statement or the material in the appeal book that the tribunal either identified the making of the request to it or, if it did, that it considered and then rejected it (as it would have been entitled to do):  WAEE 75 ALD at 641 [47].  The tribunal constructively failed to exercise its jurisdiction and failed to have regard to a relevant consideration, namely the request put as a response to its letter under s 424A.

Conclusion

38                  Both counsel agreed that the tribunal gave no alternative and independent basis for its decision and that the trial judge was correct to have so decided.  It follows that the appeal should be allowed.

Associate:                                             Dated:              4 March 2010