Federal Court of Australia

LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563

ORDERS

THE COURT ORDERS THAT:

1.    The direction made by the second respondent on 11 June 2021 that the applicant attend and participate in a consultation with Dr Wojnarowska is set aside.

2.    The first respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

BROMBERG J:

Introduction

1    The applicant seeks judicial review of a direction purportedly made by the second respondent (Tribunal) under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (Act).

2    On 11 June 2021 the Tribunal made the following direction (Direction):

1.    On a date to be fixed, but not before 19 June 2021, the Applicant must attend and participate in a consultation with Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, for the purpose of Dr Wojnarowska preparing an independent expert report; and

2.    The Respondent must pay all fees and costs associated with Dr Wojnarowska’s assessment and preparation of her report.

3    The applicant contended that the Direction was invalid on three grounds. First, properly construed s 33 of the Act did not permit the Direction to be made. Second, the making of the Direction was unreasonable. Third, the Direction was an improper exercise of the power under s 33 of the Act because its terms were uncertain.

4    The applicant seeks an order setting aside the Direction pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) or s 23 of the Federal Court of Australia Act 1976 (Cth).

5    For the reasons that follow the applicant should succeed on the first ground but fail on the second and third ground.

Background

6    The dispute arises out of a review of a decision made by a delegate of the first respondent (Minister) to refuse the applicant a protection visa.

7    In the course of the proceeding before the Tribunal, the applicant filed a psychiatric report and later a supplementary psychiatric report in support his claim.

8    Following receipt of the supplementary psychiatric report, the Minister applied for the hearing before the Tribunal to be adjourned so that the Minister could obtain its own psychiatric opinion. The applicant conveyed to the Minister that he would not consent to attending the psychiatric assessment.

9    On 9 June 2021, the Minister requested that the Tribunal make a direction under s 33 of the Act to compel the applicant to attend a psychiatric consultation organised by the Minister for the purpose of the Minister obtaining an independent expert report. Following an interlocutory hearing, the Tribunal made the Direction on 11 June 2021.

Ground 1 – The interpretation of section 33

10    At the outset it is convenient to set out those terms of s 33 of the Act relevant to the proceeding:

33 Procedure of Tribunal

(1)     In a proceeding before the Tribunal:

(a)     the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)     the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

…

Who may give directions

(2)     For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:

(a)     where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and

(b)     where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.

Types of directions

(2A)     Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

(a)    require any person who is a party to the proceeding to provide further information in relation to the proceeding; or

(b)     require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or

(c)     require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or

(d)     limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or

(e)     require witnesses to give evidence at the same time; or

(f)     limit the time for giving evidence or making oral submissions; or

(g)     limit the length of written submissions.

11    By the first ground the applicant contended that s 33 of the Act did not empower the Tribunal to involuntarily compel a party to attend and participate in a medical examination. That conclusion was said to follow from the text, context and purpose of s 33 as reinforced by the application of the principle of legality.

12    The principle of legality was relied upon in this way. First, it was contended, and I accept, that there is a fundamental common law right not to disclose personal and private information: Director of Public Prosecutions v Kaba (2014) 44 VR 526 at [86]–[90] (Bell J) and the cases cited therein; Hastwell v Kott Gunning (No 5) [2020] FCA 621 at [33] (Jackson J) (affirmed on appeal in Hastwell v Kott Gunning [2021] FCAFC 70). Second, it was contended, and I accept, that the authorities establish that, generally, specific statutory authority is required to support an order of a court or tribunal which would interfere with a fundamental right such as the right to liberty or the right to privacy.

13    In Hastwell, Jackson J was asked to make an order permanently staying a proceeding before this Court on the basis that the applicant had refused to submit himself to an examination by a consultant psychiatrist nominated by the respondent. His Honour recited the principle that “a direction requiring an interference with the liberty of an individual litigant has generally been viewed as requiring specific statutory authority”: at [32]. Justice Jackson observed that, although the examination there in question may not involve physical touching and would therefore not raise issues associated with “[f]undamental legal prohibitions on assault and trespass to person”, it would nevertheless “inevitably involve some encroachment on Mr Hastwell’s privacy”: at [33]. His Honour proceeded on the basis that the principle applied with equal force to psychiatric examination as it would to an ordinary medical examination. Applying the principle, his Honour concluded that although the Federal Court had no power to order a party to a proceeding to attend a compulsory psychiatric examination the Court could, in an appropriate case, order that the proceeding be stayed in circumstances where a party refused to participate in a medical examination: at [34]-[36].

14    During oral argument I was also referred to the decision of the Court of Appeal of Queensland in Nursing and Midwifery Board of Australia v HSK (2019) 1 QR 600. The decision in HSK concerned the power of the Queensland Civil and Administrative Tribunal (QCAT) to give directions under s 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Section 62 provided that in determining the review of a reviewable decision QCAT may give a direction at any time in the proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. I consider that the power under s 62 of the QCAT Act is relevantly analogous to s 33 of the Act. Furthermore, the appeal concerned whether QCAT had a power under s 62 to direct a party to the proceeding to undergo a medical assessment with a psychiatrist.

15    The Court of Appeal applied the same statement of principle as that applied by Jackson J in Hastwell, that a direction requiring an interference with the liberty of an individual litigant is generally viewed as requiring specific statutory authority: at [34] (Boddice J, with Morrison JA and McMurdo JA agreeing). The Court concluded that s 62 of the QCAT Act is procedural in nature and may be contrasted against a direction compelling an involuntary health assessment which involves an interference with the liberty of a litigant: at [31]. The Court concluded that QCAT had correctly found that s 62 of the QCAT Act did not support a direction compelling a person to attend a further health assessment with a psychiatrist for the purpose of an administrative review hearing: at [40].

16    The decisions in HSK and Hastwell follow a settled line of authority that a direction of a court or administrative tribunal that interferes with the liberty of an individual litigant generally requires specific statutory authority: see, eg, S v S [1972] AC 24; Furesh v Schor (2013) 45 WAR 546.

17    Although the present matter concerns the powers of the Tribunal under the Act, in my view, there is no compelling reason to depart from the principle expressed in HSK or Hastwell. Whether the principle identified is an application of the principle of legality or better understood as a narrower principle of statutory construction specific to the interpretation of powers of courts and tribunals is of little moment.

18    For those reasons and contrary to the Minister’s contention, I regard the principle applied in Haswtell and HSK as being applicable to the construction exercise herein raised. In that regard I do not accept the Minister’s submission that the Direction involves no infringement of the applicant’s fundamental right to not disclose personal and private information.

19    The Minister submitted that the principle does not apply in the present circumstances because by bringing the proceeding the applicant has elected to allow his right to liberty or privacy to be invaded. The principle identified above is not qualified in the manner contended for by the Minister. Furthermore, that approach would be in conflict with the authority of HSK and Hastwell where it could equally have been said that the applicant had elected to put his or her privacy in issue. If the principle were confined in the way described, it would rarely be applied because the party claiming its protection would always be taken to have waived his or her rights by bringing the proceeding.

20    I turn then to the text and context of s 33 of the Act. I accept the Minister’s contention that the power conferred upon the Tribunal to make directions is a broad power. However, the power is a broad power to make procedural directions.

21    Each of subss (2) and (2A) of s 33 speaks of the power to make a direction “as to the procedure to be followed at or in connection with the hearing of a proceeding” (emphasis added). Further, s 33(2) is confined by reference to it being “[f]or the purposes of subsection (1)”. Section 33(1)(a) provides that “the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal” (emphasis added). Section 33 itself is entitled “Procedure of Tribunal”. Like s 62 of the QCAT Act, the power to issue directions under s 33 is limited to those which are procedural in nature: see HSK at [29].

22    As the Court of Appeal found in HSK, a direction that compels interference with the liberty of a party to the proceeding is not readily characterised as a procedural direction: at [32]. It may be the case, however, that a direction ordering a stay of the proceeding until the applicant voluntarily attended a psychiatric assessment would answer that description: see HSK at [31]-[33] and Hastwell at [34]-[36]. But that is not the question before the Court.

23    The Minister’s submission that the Direction was supported by specific statutory authority because it was directly within the scope of s 33(2A)(a) of the Act cannot be accepted. Section 33(2A)(a) provides that the Tribunal may require “any person who is a party to the proceeding to provide further information in relation to the proceeding”. It may be accepted that the provision allows the Tribunal to direct a person to answer questions put in cross-examination: Charara v Commissioner of Taxation [2016] FCA 451 at [77] (Wigney J). However, that is an instance of requiring information to be provided to the Tribunal. To require a person to provide information to a second person for assessment and evaluation by that person in order for an opinion to be provided to the Tribunal is not naturally accommodated by the language utilized. In any event the language is not sufficiently specific to confer a particular power to compel a party to attend a compulsory medical examination. The provision is expressed at a high level of generality and therefore falls within the scope of the principle identified in HSK and Hastwell.

24    Furthermore, contrary to the Minister’s contention, it is not necessary for such a power to be conferred in order for the Tribunal to give effect to its obligation to afford procedural fairness to the parties. As noted above, the Tribunal may have a power under s 33 to direct that a proceeding be stayed until the applicant voluntarily submits to a medical examination, if doing so is an appropriate means of ensuring procedural fairness between the parties. There are a range of other means within the power of the Tribunal for ensuring that justice between the parties is achieved in the circumstances at hand. The Tribunal could determine not to receive the second report unless the applicant voluntarily attends the medical examination. Alternatively, it could afford the second report less weight on the basis that it had not been tested by opposing opinion. Whichever of those available means is best utilized to achieve justice between the parties is a matter for the Tribunal. The point here sought to be made is that despite not having a power to direct a party to attend a medication examination, the Tribunal is not denied the capacity to provide procedural fairness.

25    The applicant contended that several provisions of the Migration Act 1958 (Cth) also confirm the operation of s 33 of the Act outlined above.

26    Section 60 of the Migration Act provides:

Medical examination

(1)     If the health or physical or mental condition of an applicant for a visa is relevant to the grant of a visa, the Minister may require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition, at a specified reasonable time and specified reasonable place.

(2)     An applicant must make every reasonable effort to be available for, and attend, an examination.

27    By operation of s 43(1) of the Act, the Tribunal can exercise the power under s 60 of the Migration Act when conducting a review of a decision. The Minister, however, did not contend that this provision was applicable in this case.

28    Similarly, s 427(1)(d) in Pt 7 of the Migration Act provides that the Tribunal may for the purpose of its review:

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 to the Tribunal a report of that investigation or examination.

29    However, that power is not available to the Tribunal in the circumstances of a decision of the kind presently under review to refuse an application for a protection visa on the basis of s 36(1C) of the Migration Act. That is because the decision in question is not a reviewable decision under Pt 7 of the Migration Act.

30    The presence of specific powers under the Migration Act to order a person to attend a medical examination in limited circumstances is consistent with the principle in Hastwell and HSK. Their presence in the enactment which empowered the decision under review by the Tribunal supports an inference that the Act has left the subject matter of an involuntary medical examination to the underlying enactment. However, whilst those observations are consistent with the applicant’s construction, the difficulties inherent in using the terms of one statute to interpret another dissuaded me from attributing much significance to those observations.

31    Finally, the Minister submitted that the Tribunal has no power to force or compel a person to comply with its directions. It must be accepted that the Tribunal, as a non-judicial body, cannot itself impose punishment for a failure to comply with its orders. However, s 63(2) of the Act establishes that a person commits an offence entitled “Contempt of Tribunal” by engaging in conduct that would constitute contempt if the Tribunal were a court of record. In my view, very little turns on this point. The directions of the Tribunal clearly have a coercive effect even if the Tribunal itself cannot enforce its directions by way of contempt.

32    For these reasons the applicant succeeds on the first ground of review.

Ground 2 – Legal unreasonableness

33    By the second ground the applicant contended that the making of the Direction was unreasonable. The applicant submitted that an assessment of unreasonableness must be undertaken by reference to the statutory context in which the power in question occurs. For present purposes, the applicant said, the exercise of the s 33 power must be understood by reference to the obligation upon the Tribunal to pursue its objectives of providing an administrative review that is “fair, just, economical, informal and quick” and “proportionate to the importance and complexity of the matter”: s 2(b)-(c) of the Act. The applicant contended that the language of proportionality and expedition contemplated by s 2 of the Act was picked up by s 33(1)(b), which provides that “the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit”.

34    In the context of the present facts, the applicant contended that the Tribunal’s decision to make the Direction was unreasonable in light of its statutory objective to pursue a degree of expedition proportionate to the matter at hand. The applicant’s submission was in essence that the breadth of opinion evidence, being the two psychiatric reports put on by the applicant, sufficed for the Tribunal to make its decision, and that in the context of expedition and proportionality it was unnecessary and unreasonable for it to seek further evidence from the Minister. Further support was said to follow from considerations such as the Direction being uncertain, its interference with the applicant’s privacy and the privilege against self-incrimination, the harm that it may cause the applicant, the prospect of it delaying the final hearing of the matter, and there being no challenge to the adequacy of the existing psychiatric reports. Taken together, these facts were said to lead to a conclusion that the making of the Direction was legally unreasonable.

35    It may be accepted that the Act contemplates that the Tribunal should exercise its power with regard to balancing expedition, efficiency and fairness. However, where the balance falls requires an intrinsically evaluative assessment of the particular circumstances before the Tribunal upon which reasonable minds might differ. As the applicant accepted, the scope of decisional freedom afforded to a person exercising a power such as that provided by s 33 must be very large. One decision-maker may well rationally consider that the delay caused by the provision of a further report is unacceptable, whilst another may rationally consider it necessary to facilitate fairness between the parties. In either case the decision could not be impugned on the basis of legal unreasonableness. In the present case a rational basis for the Tribunal’s decision is readily apparent. The Direction was made to facilitate the Minister obtaining expert evidence for the purpose of providing an opposing opinion in a field where reasonable minds might differ. The decision cannot be characterised as irrational, illogical or capricious. The considerations adverted to by the applicant were all matters that may weigh in the balancing exercise undertaken by the Tribunal in the exercise of its power under s 33. There is no basis for the proposition that they were ignored or given so little regard as to invalidate the balancing exercise the Tribunal was required to undertake.

36    For those reasons the applicant must fail on the second ground.

Ground 3 – Uncertainty

37    By the third ground the applicant contended that the Direction was an improper exercise of the power conferred by s 33 of the Act because its terms were uncertain. The applicant contended that the Direction was susceptible to review under subss (1)(e) and (2)(h) of s 5 of the ADJR Act or, alternatively, s 39B of the Judiciary Act 1903 (Cth).

38    The applicant contended that the Direction was uncertain in that it did not describe, in terms or otherwise:

    the duration of the compulsory medical examination;

    the mode of compulsory medical examination;

    the place of the medical examination; and

    the questions that the applicant would be required to answer, or, alternatively, the topics upon which the applicant would be required to answer questions.

39    Section 5(1) of the ADJR Act stipulates a number of grounds upon which a person aggrieved by a decision may apply for judicial review, including:

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made[.]

Under s 5(2)(h) of the ADJR Act, an improper exercise of power under s 5(1)(e) is construed as including “an exercise of a power in such a way that the result of the exercise of the power is uncertain”.

40    Dealing with s 5(2)(h), Finn J in Randwick City Council v Minister for the Environment [1998] FCA 1376; 54 ALD 682 at 730 concluded that the matter at hand was not “concerned with the common law but with a matter of statutory construction”: see also Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301 at [183] (Gilmour, Foster and Barker JJ); Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCA 330 at [79] (Tracey J).

41    At common law, uncertainty is not a free-standing ground of judicial review in Australia: see Sunland Group Limited v Gold Coast City Council [2021] HCA 35 at [19] (Gordon J). The position differs from the United Kingdom where a rich jurisprudence has developed surrounding the role of certainty under the Human Rights Act 1998 (UK): see Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) at 366 [6.370]. However, in some circumstances it may be the case that, as a matter of statutory construction, certainty is implied as a requirement conditioning the exercise of a statutory power: Sunland at [19]; Buzzacott at [154]. There is, for instance, an established line of authority concerning the requisite degree of certainty required under price-fixing legislation: see King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184; Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210.

42    The applicant relied upon the observation made by Finn J in Randwick that the setting with which his Honour was there concerned was “significantly removed from that in which an organ of the state gives what purports to be a binding direction to the citizen in relation to the conduct of his or her affairs” in order to contend that a high degree of certainty will be required where a direction is made by the State to a citizen. In my view, that contention seeks to draw too much from the observation upon which it relies.

43    While it may be accepted, at a high level of abstraction, that certainty will generally be of greater relevance in circumstances where an individual is subject to compulsion by the State, in my view, Finn J was not suggesting that that would inevitably be so. To my mind his Honour was merely adverting to the fact that the degree of certainty, if any, required in the circumstances is context dependent. It is relevant to note, however, that in rejecting the uncertainty contended for in Randwick, his Honour relied upon the capacity for the person the subject of the direction “to seek clarification”: at 730-1.

44    For present purposes the power of the Tribunal under s 33 is analogous to the inherent or statutory power of a court to make orders providing for the procedure to be abided by the parties in proceedings before it. This is the setting in which the question of certainty must be assessed in this matter.

45    It is true that the Direction is not as detailed as it could be, but that does not necessitate the conclusion that the Direction is uncertain. The terms of the Direction are sufficiently clear. That it remained necessary for details concerning the consultation to be worked out subsequently did not render the Direction unclear in its terms. Matters such as the duration, mode and place of the medical examination are either sufficiently obvious from the context in which the Direction was made or, in the case of duration in particular, are conditioned by the implication that the Direction only requires the applicant’s compliance with lawful and reasonable requirements that may be made of him.

46    During the course of oral submissions the applicant explained that the focus of the complaint about uncertainty was the questions that might be asked of the applicant during the medical examination. Counsel for the applicant said that the Direction contemplated that the applicant would be asked questions but did not specify which questions would be asked. In particular the applicant observed that the Direction did not specify whether the applicant would be obliged to answer questions which might breach the privilege against self-incrimination.

47    However, again, the applicant’s complaint is resolved by the proper construction of the Direction and not by recourse to invalidity.

48    The applicant was required to “attend and participate in a consultation with Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, for the purpose of Dr Wojnarowska preparing an independent expert report”. If the applicant refused to answer any question put to him by the psychiatrist, then it may be the case that he would have breached the Direction by failing to “participate” in the consultation. However, properly construed, the Direction does not oblige the applicant to answer any and every question. It must be accepted that an order framed in general terms, such as the Direction, would not abrogate the applicant’s right to decline to answer a question by reason of the privilege of self-incrimination or legal professional privilege. Nor would it oblige the applicant to respond to a question which was unreasonable because it was irrelevant to the proceeding before the Tribunal. To that end the applicant should have the benefit of being accompanied by his legal representative at any consultation of the kind contemplated by the Direction.

49    Further and in any event, while it may have been preferable for the Tribunal to have made the implied caveats discussed above explicit in the terms of the Direction, it was not reasonable nor possible to set out the specific questions, or even the categories of questions, which could be lawfully and reasonably asked during the consultation, as the applicant contended should have been done. That is especially so in the context of a psychiatric consultation which inevitably involves a dynamic exchange between the interviewer and interviewee.

50    To state the matter shortly, the terms of the Direction were unremarkable. The generality of the phrase “attend and participate in” calls for some implication but that does not spell invalidity for uncertainty. The Direction was expressed in a practical manner and is to be construed in a practical manner. So construed it is not uncertain.

51    As stated already the applicant also brought his case relying on s 39B of the Judiciary Act. As noted above, there is no general principle that uncertainty in the exercise of statutory powers will give rise to invalidity. No effort was made to draw an implication from the Act that s 33 requires certainty (although it might be said that the exercise of power under s 33 must answer the description of a “direction”). Even if I were to presume in favour of the applicant that certainty was a condition of the exercise of the power under s 33, I consider that the conclusions above in relation to uncertainty under the ADJR Act would apply with equal force.

52    Accordingly, the applicant must fail on the third ground of review under the ADJR Act and s 39B of the Judiciary Act.

Disposition

53    I will make the orders sought by the applicant including an order that the Minister pay the applicant’s costs of the application.

Associate:

Dated:    15 December 2021