Federal Court of Australia

Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 214

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

The application

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the respondent not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act): Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2055.

2    The applicant contends that the Tribunal’s decision should be set aside for jurisdictional error on three grounds:

(1)    the applicant was not in a fit state to present evidence before the Tribunal and, as such, did not receive a fair hearing;

(2)    in preventing the applicant’s legal representative from asking the applicant’s sister about her journey from Vietnam to Hong Kong and/or her experience in a refugee camp the Tribunal failed to take into account a relevant consideration, failed to give genuine and proper consideration and engage with the applicant’s submissions, made findings that were legally unreasonable, and/or denied the applicant procedural fairness; and

(3)    in preventing the applicant’s legal representative from making submissions in reply to the respondent’s submissions regarding country information about the availability of psychiatric care in Vietnam the Tribunal failed to take into account a relevant consideration, failed to give genuine and proper consideration and engage with the applicant’s submissions, made findings that were legally unreasonable, and/or denied the applicant procedural fairness.

3    The factual foundation necessary to support these grounds of review has not been established. Considered in the relevant context, the Tribunal did not err in any of the three ways identified in the grounds of the application. Accordingly, the application must be dismissed with costs.

Background

4    The applicant arrived in Australia in 1992 when he was 16 years old.

5    In August 2019 the applicant was convicted of multiple offences and sentenced to 28 months’ imprisonment.

6    On 9 January 2020 the applicant’s Class BF Transitional (Permanent) visa was cancelled under s 501(3A) of the Migration Act as the respondent determined that the applicant did not pass the “character test” given his substantial criminal record.

7    On 30 March 2021 a delegate of the Minister decided not to exercise his or her discretion to revoke the decision to cancel the applicant’s visa.

8    On 2 April 2021 the applicant applied to the Tribunal for review of the non-revocation decision.

9    The hearing before the Tribunal occurred on 3, 4, 7, 8 and 21 June 2021.

10    On 22 June 2021 the Tribunal made its decision, followed by the provisions of reasons in writing for the decision on 1 July 2021.

11    Section 500(6L) of the Migration Act applied so that if the Tribunal had not made a decision in relation to the decision under review within the period of 84 days after the day on which the applicant was notified of the decision not to revoke his visa cancellation, the Tribunal would be taken to have made a decision to affirm the decision under review. The 84 day period expired on 22 June 2021 as referred to at [11] of the Tribunal’s reasons for decision.

12    At all material times, including during the hearing before the Tribunal, the applicant had legal representation.

Ground 1

13    The principal evidence in support of ground 1 is the transcript of the hearing before the Tribunal. There is no evidence: (a) from the applicant that he was not in a fit state to give evidence during the hearing before the Tribunal, or (b) from an expert that the applicant was not in a fit state to give evidence during the hearing before the Tribunal.

14    However, from the evidence before the Tribunal I infer that the applicant has been diagnosed as suffering from schizophrenia with dependence syndrome due to use of opioids. I infer also that the applicant is prescribed medication for his mental illness but has a history of not taking his medication as required.

15    The Tribunal made directions on 14 April 2021 requiring the applicant to file any witness statements by 5 May 2021.

16    As noted, the applicant was legally represented at the hearing before the Tribunal. The applicant also had the assistance of an interpreter. The hearing was conducted remotely by video conference. The applicant’s legal representative noted the applicant’s mental health issues at the outset (T 4.20) in the context of the applicant’s opportunity to have considered documents which were served late by the respondent.

17    The applicant was called to give evidence on 3 June 2021. He gave evidence in chief starting at T 9. Although the applicant was asked to recall events that were traumatic for him (his journey on a boat from Vietnam to Hong Kong and time in a camp in Hong Kong without his family) there is no indication of the applicant having any difficulty in giving evidence until T 13.13–14 when the applicant noted that it was still hard for him to talk about certain things. However, the applicant gave clear evidence after this including at T 13.29–47 that he was continuing to take medications and injections to deal with his problems. There is no sign of any further problem in the applicant giving evidence until T 23 when the applicant appeared to become frustrated with the questions being asked and said “I want to go now” and repeatedly asked why the questioner wanted to know the answers to the questions being posed.

18    Thereafter, in answer to a question about a conviction in 2003 before his conviction in 2019, the applicant replied at T 24.37–38:

I don’t know, I don’t care, I just don’t – can’t remember anything. I got here, I can’t remember. Don’t make me remember anything.

19    The applicant’s legal representative then asked if he could read a statement to the applicant and would then ask the applicant if he agreed or disagreed with the statement. The applicant replied at T 24.44:

It doesn’t make any difference, agree or disagree.

20    The statement did not relate to a conviction in 2003 but said that the applicant had never been back to Vietnam and would be like a foreigner there and that the applicant would not be able to survive without the loving care of his mother. The applicant said “I can still survive” at T 25.14 and when asked if he agreed or disagreed with the statement said at T 25.19–24:

I don’t think I can go back to Vietnam because, you know, I won’t be accepted by the government there, and I have nowhere to live, no accommodation at all. And about the care from my mother, now my mum is still alive, so I can enjoy, you know, being taken care of by my mother; but when she passes away, then I think I will be still survive, will be able to survive.

21    The following exchange then occurred at T 25.26–38:

MR KIKKERT: And Mr Nguyen, how would you feel if you had to be returned to Vietnam and be separated from your family in Australia?

INTERPRETER: I don’t know, I don’t know, you know, how I feel at the time, I have no idea.

MR KIKKERT: And what impact would it have on you to be separated from your family in Australia?

WITNESS: I don’t know, I don’t know.

MR KIKKERT: Thank you, Mr Nguyen. And I have no further questions, Member.

22    Cross-examination of the applicant started at 12.02pm on 3 June 2021 at T 27.14. The hearing was adjourned at 12.05pm so the applicant could find some documents and was scheduled to start again at 12.15pm (T 28.4–11). The hearing started again at 12.27pm (T 28.27). The applicant had not returned. The applicant’s legal representative, the Tribunal and the respondent’s legal representative then had an exchange from T 28.36–T 29.31 in which the applicant’s legal representative said the applicant had seemed agitated in giving his evidence and the representative was concerned about the applicant’s mental health. In response to a question from the Tribunal as to what suggestions the applicant’s legal representative might have about how to proceed, the applicant’s legal representative said he had no suggestion at that stage but that the issue was one to be aware of as the applicant was cross-examined. The respondent’s legal representative noted that there was evidence the applicant had schizophrenia and was being treated for it, but no evidence that the applicant could not engage with the hearing and give evidence. While the applicant had appeared agitated the respondent’s legal representative said that this did not mean the applicant could not respond to questions asked of him. The Tribunal then adjourned for lunch (T 31.12).

23    The hearing started again at 1.47pm on 3 June 2021 (T 32.1). The applicant was not present. The applicant’s legal representative informed the Tribunal that he had spoken to the applicant who had said that he did not want to talk about the past, he found the past horrible, and it had given him a headache (T 32.13–15). The Tribunal adjourned the hearing until 4 June 2021. In so doing the Tribunal said at T 33.42–34.5:

Now where we go from there depends entirely upon what the applicant decides but Mr Kikkert, it may be that you or the applicant's mother or sister can prevail upon him to appear tomorrow and hopefully if he is having a medical episode it will have passed by tomorrow. It seems to me that fairly obviously Mr Sharpe can’t engage in any cross-examination at all at this stage. It may or may not come to the point where I have to consider whether he is in fact proceeding with this application for review but I’m not forming any view on that at this time, and I do intend to be generous in the allowances I give the applicant, because of his particular circumstances and I have some sympathy for Mr Kikkert who’s doing his level best to represent his client fairly

24    The Tribunal’s statements throughout the hearing (see, eg, T 19.15–18) make clear that it was aware of s 500(6L) of the Migration Act, the effect of which would be to deem the Tribunal to have affirmed the decision under review if it did not make a decision by 22 June 2021.

25    The hearing resumed at 9.32am on 4 June 2021. The applicant’s legal representative said at T 38.15–26:

We don’t seem to have the applicant here at the moment, Member. I have spoken to the applicant this morning. Based on that call I do continue to have concerns about his mental wellbeing at the moment. Since that time I haven’t been able to speak to the applicant. The applicant’s migration agent hasn't been able to speak to him nor his family members. And so we are certainly in an unusual (indistinct), Member. From my perspective I continue to have instructions to pursue the applicant's application before this tribunal and I’d be seeking to present the applicant’s case to the best extent that I can and I’ll be guided by this tribunal about how best to deal with this in these current circumstances.

I do note that I have two other witnesses ready.

26    Exchanges ensued between the legal representatives and the Tribunal. By 10.20am the applicant had appeared (T 43.9). Cross-examination of the applicant started at T 45.36. Leaving aside interpretation issues there is no indication from the transcript that the applicant was distressed in giving evidence or might be unable to do so until perhaps T 71 when the applicant could not recall how long he had used drugs. From T 72.41 it is apparent the applicant did not want to answer questions about when he started using heroin. From T 73 it is apparent the applicant did not want to answer questions about why he left school. The Tribunal directed the applicant to answer at T 73.25. The applicant then answered questions clearly and cogently at T 74.10–21. The hearing was then adjourned at 12.30pm due to a medical appointment of the applicant’s legal representative. Cross-examination of the applicant continued from about 1.45pm on 4 June 2021. The cross-examination focused on when the applicant had started using heroin to which the applicant repeatedly answered he could not remember (T 77.30–78.14). The cross-examination continued without apparent problem culminating in the evidence at T 79.34–35 that the applicant could vaguely remember using heroin but not at what time. The cross-examination thereafter continued with the applicant giving clear and cogent answers about his use of methadone as a heroin replacement, and methamphetamines, and the effect of drugs on his mental health. At T 88 the questioning turned to the applicant’s detention on 20 March 2018. At T 88.11–12, the applicant said:

I can’t really remember. I couldn’t remember. I was had to [sic] a psychiatric ward, I don’t remember anything.

27    When pressed about this topic the applicant said (T 88.28):

I have to go, I can't remember, you just make me crazy.

28    The Tribunal then said (T 88.31–35):

I think we might take a short break for about 10 minutes at the moment, okay. Mr Nguyen, you’re obviously upset, sir… I’d like to give a short break to compose yourself, okay.

29    The hearing was adjourned at 2.38pm and resumed at 2.53pm on 4 June 2021. The cross-examination continued and the applicant again gave clear answers denying that he had not accepted his medical treatment plan. But at T 91.41–42 the applicant said:

I don’t know. I just want go back home and sleep. I have enough.

30    When the respondent’s legal representative again put to the applicant that he was non-compliant with prescribed medications the applicant said at T 92.28–29; 34–35:

I don’t know. I want to go home now. I commit a crime, I’m in gaol for three years and now I have no right to say anything.

…

I committed a crime, I was in gaol for three years. And now I’m innocent, I have no right to say anything.

31    The applicant’s legal representative intervened saying that he was worried as the applicant seemed to be getting agitated and seemed to be struggling and had been asked questions for a long period of time. The Tribunal decided to adjourn the hearing and did so.

32    The hearing resumed on the Monday, 7 June 2021. The Tribunal asked at T 99.12–14 whether any issues had arisen over the weekend which needed to be addressed. The applicant’s legal representative said there were no issues. The cross-examination of the applicant continued with the applicant again providing clear and cogent answers. The questions pressed the applicant about his compliance with taking prescribed medications. At T 113.42–43 the applicant said he took his medication and “[t]hat’s enough”. The Tribunal observed that the applicant was appearing a little agitated and that as the hearing had been going for about an hour they should give the interpreter a break (T 113.45–47). After a 15 minute break the cross-examination continued. Again, the applicant’s answers were clear and cogent until T 120. When asked about a hospital report recording that he had used cannabis the applicant denied the suggestion and said that “they” were lying. This followed at T 120.31–T 121.9:

No, I don’t care. They all lying. They all not true. So now, I living here, what you want me to do, I will do. But I don’t care and I don’t want to go on, but I don’t want to mention about those lying pig.

…

INTERPRETER: He say that all of the facts mentioned by the lawyer was lying. It’s not true. And now, he try - don’t remember about those things. He don’t care about those facts, and he says that he is living now currently, and whatever people want him to do, he will do, but he don’t care about the past. He doesn’t care about the past, yes.

MR SHARPE: Mr Nguyen, what I wanted to suggest to you is that you’ve actually got a better memory than what you make out.

INTERPRETER: Now, I don’t want to talk anymore. Just he needs the hearing and whatever you do, I will accept and I want to go home. You are, whatever you do, I receive and I accept. I accept. So give me the conclusion, give me a decision, and I don’t want you to keep talking about my past. Keep scrutinise my past.

33    The respondent’s legal representative then asked the Tribunal if he should continue questioning the applicant. The Tribunal said yes but that the applicant’s legal representative could make submissions. The applicant’s legal representative said he was concerned as the questioning had gone on for a considerable period of time. As the relevant issues had been covered the applicant’s legal representative said the questions should cease in the interests of the applicant’s health and wellbeing (T 121.16–34). The Tribunal asked the respondent’s legal representative if he had many more questions. The respondent’s legal representative said he wanted to ask questions about the applicant’s rehabilitation and noted that the applicant had appeared composed in giving answers except when the questions related to contentious issues about his past (T 122.19–47). The Tribunal decided to take the lunch adjournment early saying at T 123.7–10 that it was “trying to avoid any prospect of suggestion that the applicant’s been overborne by the manner in which the hearing’s been conducted”. The hearing adjourned at 12.04pm and resumed at 1.29pm. The first question asked the applicant if he wished to say anything more about why he committed the offences in 2018. The applicant responded clearly and cogently as follows at T 125.30–36:

No, I don’t want to state anything more, but however I just want to say that, back to that time, I could not control myself and that’s why I committed an offence, and for that I reserve [sic] my sentence and I comply with all the Magistrates Court order to me, and now I want to look toward the future. I remorse and I regret about what I have done, and please give me a chance. I want to come back to community. I want to live among our community.

34    The questions continued with the applicant giving clear answers such as at T 126.24–27:

I promise that I will [not] use methamphetamine or cannabis in the future, and I will comply with treatment that I need to help my mental health, and I will search for part-time job so that I can change my current situation..

35    There then followed a technical difficulty with the video conference. Questions re-commenced at T 129.29 and continued without any indication of distress on the part of the applicant until T 135.17. The Tribunal then adjourned the hearing for five minutes. On resumption the applicant’s legal counsel re-examined the applicant from T 136.18–139.15, again without any indication of distress on the part of the applicant.

36    Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that “the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case”. Accordingly, if a hearing is conducted before the Tribunal in circumstances where a party is in no fit state to appear or conduct the hearing or to give evidence as required the hearing may miscarry in a manner amounting to jurisdictional error: SCAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1481; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553. In SCAR, however, there was undisputed medical evidence that the party in question was not in a fit psychological state to give evidence.

37    In BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116 at [43] the Full Court said:

Applicants who assert that their psychological condition deprived them of the “meaningful opportunity” required by s 425 of the Migration Act must establish more than the fact of the condition. They must also establish that their condition is such as to deny them the capacity to give an account of their experiences, to present argument in support of their claims, and to understand and respond to the questions put to them: SZMSA v Minister for Immigration and Citizenship [2010] FCA 345 at [20]-[25] and [32]-[35] (Gilmour J); SZNVW [Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575] at [20] (Keane CJ). Further, even when psychological evidence may, had it been available to the Tribunal, have led it to take a different view of the credibility of an applicant’s account, the absence of that evidence does not, of itself, establish that the hearing before the Tribunal proceeded on a false assumption about the applicant’s ability to give evidence and to present arguments relating to the issues arising in relation to the decision under review: SZNVW at [19]. Generally, it is insufficient for applicants to show no more than that a medical condition may have deprived them of the ability to put their case to best advantage.

38    The evidence in the present case is confined to the fact that the applicant suffered from schizophrenia, had not taken his prescribed medication in the past but was taking it at the time of the hearing, and the transcript.

39    Contrary to the assumption in the submissions for the applicant, the transcript does not lead to an inference that the applicant was not in a fit state to give evidence. While the questions of the applicant started on 3 June 2021, this included examination in chief, the non-appearance by the applicant, technical issues with the video conference, and the usual delays caused by evidence being given through an interpreter. Cross-examination started on 4 June 2021 at about 10.20am. It continued until 11.27am when there was an adjournment. It resumed at 11.43am. The lunch adjournment was taken at 12.30pm. Cross-examination resumed again at about 1.45pm and continued until 2.38pm when the Tribunal again adjourned. The hearing resumed at 2.53pm and cross-examination continued until about 3.15pm when the matter was adjourned for the day. The hearing resumed on 7 June 2021. Cross-examination started at about 10.14am and continued until 11.08am. It resumed at 11.25am and continued until the Tribunal adjourned the hearing for lunch at 12.04pm. The hearing resumed at 1.29pm and cross-examination continued from then until about 2.19pm. Re-examination started at 2.34pm. On this basis, the applicant was under cross-examination on 4 and 7 June 2021 for a total of about 189 minutes on 4 June and 143 minutes on 7 June.

40    While relatively lengthy for a matter of this kind and interrupted by periods of agitation and distress on the part of the applicant, there is no basis to infer that the cross-examination was overbearing or rendered the applicant unfit to give evidence. To the contrary, it is apparent that the applicant only became distressed and agitated when asked about certain aspects of his past which he did not wish to recall. The Tribunal repeatedly adjourned the hearing to ensure that the applicant was sufficiently composed to give evidence. After each adjournment the applicant gave clear and cogent answers to the questions. It is not possible to infer from the evidence that the applicant was not fit to give evidence at any time during the hearing. His agitation and distress were responsive to questions (whether in chief or under cross-examination) about issues in his past he did not want to think about. The applicant’s legal representative had ample opportunity to confer with the applicant separately during the adjournments and made one application for the cross-examination to cease on 7 June 2021 which the Tribunal rejected. Following that objection, there is no evidence of the applicant having any difficulty answering the remaining questions.

41    The fact that a witness may find answering questions about unpleasant topics distressing and evince an unwillingness to answer does not mean that the witness is not in a fit state to give evidence. In the present case the Tribunal was alive to concerns about the applicant’s mental wellbeing and ensured that it gave the applicant adequate opportunities to regain his composure. On each occasion the Tribunal did so, the transcript indicates that the applicant did regain his composure. The applicant’s diagnosis of schizophrenia meant that the Tribunal was right to take the care it did. But there was evidence that the applicant’s schizophrenia was under appropriate treatment at the time of the hearing. The judgement that the Tribunal made, to permit the questioning to continue, was based on it having assessed the circumstances including having the advantage of seeing and hearing the applicant give evidence.

42    I am unable to infer from the evidence that the applicant was unfit to give evidence or overborne by the circumstances at any time during the hearing. Ground 1 must be rejected.

Ground 2

43    The applicant’s legal representative called the applicant’s sister to give evidence. It was not in dispute that the applicant had fled Vietnam before the rest of his family. His sister had fled subsequently with their parents. The applicant’s legal representative asked questions about the experiences the applicant’s sister had when fleeing Vietnam by boat and arriving in Hong Kong and being placed in a refugee camp at T 181–182. The respondent’s legal representative objected to the continuation of this line of questioning based on relevance at T 182.20–25. The Tribunal then said at T 182.27–30:

Mr Kikkert, I’m inclined to agree with Mr Sharpe. Weather conditions impact on seasickness, and I think we’re all aware of that. And there’s no indication that the experiences of this witness replicate those of her brother.

44    The applicant’s legal representative then explained that the evidence was relevant as it involved a comparable experience to the applicant’s experience of fleeing Vietnam and partly explained the applicant’s mental health issues and was therefore relevant to the “expectations of the Australian community, whether the Australian community would expect someone that has gone through all these experiences should be returned to the home country” (T 183.4–6). The Tribunal responded at T 183.12–19 that:

… the problem I’ve got with it is that you’re essentially seeking to transpose the experiences of this witness to your client. And I don’t think I can do that…

…

I think you’d be on much firmer ground relying on the medical reports.

45    The medical reports constitute numerous pages documenting the applicant’s mental health problems over many years. Information in these reports included that the applicant had been put on a boat with an Aunt at about age 12 to go to Hong Kong and was terrified throughout the 20 day journey in which conditions were poor and after which they were put in a refugee camp. The applicant had also given evidence in chief that he had been sent to Hong Kong with his Aunt before the rest of his family when he was 12, had found the experience difficult and “very traumatic”, and the journey had taken 20 days. He said it was still hard for him to talk about these experiences. The applicant’s sister had also provided a statement saying that the applicant was separated from the rest of his family for two years and that he was then “young and impressionable, and it was extremely difficult for him to be separated from his family in such harsh conditions” and he then began experimenting with drugs and that these experiences continued to affect him in Australia. The applicant’s sister also gave oral evidence that they were all a bit traumatised by having fled Vietnam. Her own experience of the journey was “terrible” and they were “crying all the time” (T 181.45–182.4). She said at T 182.4–14:

We wanted to go home. And also, we saw things. It just terrible. It’s like every day you feel sick throwing up. You can’t eat, can’t drink, can’t sleep. It’s just terrible. Yes.

Yes. Is it difficult to talk about those things?---It’s still very difficult. But lucky that we were quite young. There’s some things that just go away and some things that just there. It’s like the feeling. It’s like for me now, every time I step my foot on a boat or a ship, I would get that feeling again. Like I’m really scared, I’m really nervous.

Do you often think about that trip that you went through?---Yes.

46    In these circumstances it is not apparent what further material evidence the applicant’s legal representative believed he might obtain by being able to ask more questions of the applicant’s sister. There is no evidence from the applicant’s legal representative about the substance or materiality of any further evidence he wished to adduce from the applicant’s sister. Further, it was obvious from the applicant’s own evidence that he found the entire experience traumatising. The applicant’s sister gave similar evidence and said she believed the applicant had continued to be adversely affected by these experiences. As a result, it is not possible to infer that the Tribunal’s position of not permitting further questions about the issue prevented the applicant’s legal representative from adducing any further material evidence.

47    In any event, if the applicant’s legal representative believed that the Tribunal’s position was preventing the adducing of further material evidence, then it could be expected that the applicant’s legal representative would have explained to the Tribunal precisely what this evidence was and put the Tribunal on notice that refusing to permit the evidence to be adduced may result in a miscarriage of the hearing. The Tribunal is entitled to expect that a legal representative for a party will assist it in avoiding error. The fact that the applicant’s legal representative made no such submission to the Tribunal and has not identified on this application any evidence which he was prevented from adducing leads to the inference that there was no such evidence.

48    The position of the Tribunal, whether or not it constituted a ruling, was well within the bounds of reasonableness and there is no foundation for any inference that it resulted in a jurisdictional error of any kind. In particular, it must be recalled that by s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal’s procedures are within its own discretion, 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 “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”. As French J (as his Honour then was) said in Mt Gibson Manager Pty Ltd v Deputy Commissioner of Taxation [1997] FCA 1457; (1997) 81 FCR 335 the Tribunal is not bound to receive evidence of little probative value and is entitled “to be selective about the quality and quantity of material it will consider in any case”.

49    For these reasons ground 2 must be dismissed.

Ground 3

50    An issue in dispute in the proceeding was the availability of mental health care for the applicant in Vietnam. This issue was raised by the applicant in his statement of facts, issues and contentions at [26] and denied by the respondent in its statement of facts, issues and contentions at [76] –[79] by reference to country information. The country information formed part of the material before the Tribunal. Accordingly, the applicant’s legal representative was free to adduce evidence, whether by way of witness or documentary, about this issue in his case in chief.

51    By the time closing submissions had been reached on 8 June 2021 the Tribunal decided to adjourn for the day and reconvene for submissions on 21 June 2021. The applicant’s legal representative made oral submissions in chief which included that:

    the “the applicant clearly wouldn’t be able to cope at all in Vietnam with his mental health, that it is extremely likely that he would at best be homeless and not be able to survive in that society” (T 211.20–22);

    “the applicant would be in an even more difficult and dangerous situation were he to be returned to Vietnam where he wouldn’t have this support, where he wouldn’t have his mental health treatment, and where really he wouldn’t be able to survive in Vietnam” (T 220.35–38);

    the applicant’s mother believed he would not receive mental health treatment in Vietnam (T 229.42–46);

    there “is no medication for it in Vietnam. On the evidence before the tribunal, it seems to be that the applicant wouldn’t have the money, wouldn’t be able to get treatment, and certainly the applicant’s mother was convinced that the applicant would die were he to be returned to Vietnam” (T 230.1–4); and

    “all the evidence before the tribunal is – at best it’s very likely that he would be homeless, that – you know, he has been on a disability pension; he wouldn’t be able to access the medical treatment that he needs; and that there are real concerns presented to the tribunal that the applicant would in fact die in Vietnam” (T 231.4–8).

52    The respondent’s legal representative, in the course of closing submissions, referred to the details in the country information about the availability of mental health care in Vietnam at T 268.19–272.43.

53    The applicant’s legal representative, in the course of submissions in reply, submitted that nothing in the respondent’s submissions addressed the evidence that to obtain treatment in Vietnam, money was required (T 279.34–279.44). The applicant’s legal representative continued as follows at T 280.3:

Now, I note that my learned friend did refer to the number of psychiatrists. Now, that needs to be understood in the context of 900 psychiatrists in a population of 96 million people.

And we note that the applicant is not from a big city. We note that this would equate to really one psychiatrist to every .0001 persons. We would submit that even if there was - - -

54    The Tribunal interrupted, saying at T 280.12–13:

I think you’re going outside the evidence I've heard, and I think I’m giving you a fair bit of latitude…

55    The applicant’s legal representative did not seek to make further submissions in reply.

56    There is no evidence in support of this application about the further legal submissions in reply the applicant’s legal representative would have made had he been given the opportunity to do so. The transcript discloses that when interrupted by the Tribunal, the applicant’s legal representative did not identify to the Tribunal the further legal submissions in reply he wished to make or why they were material. The applicant’s legal representative did not submit to the Tribunal that if it prevented him from making those submissions the Tribunal might be committing a jurisdictional error.

57    Again, it seems to me that if there were further material submissions in reply the applicant’s legal representative wished to make then the applicant’s legal representative would not have immediately acceded to the Tribunal’s suggestion that the submission was going outside the scope of the evidence. Rather, the Tribunal was entitled to expect that the applicant’s legal representative would have informed the Tribunal that his submissions were based on the evidence and were material and why that was so. At the least, there would be some evidence in support of this application identifying what it is that the applicant’s legal representative said he was prevented from saying. There is no such evidence, however.

58    In these circumstances I am unable to accept that the course of the hearing of the submissions in reply involved any jurisdictional error. The applicant had ample opportunity to adduce evidence or make submissions in chief about the issue including the documentary evidence on which the respondent relied. The submissions of the respondent’s legal representative did no more than refer to the details in the documentary evidence which had been made available to the Tribunal and the applicant’s legal representative. If the applicant’s legal representative was genuinely taken by surprise by the way in which the respondent’s legal representative deployed those documents in closing submissions, it was incumbent upon the applicant’s legal representative to explain this to the Tribunal. The applicant’s legal representative did not do so.

59    For these reasons ground 3 must be rejected.

Other observations

60    This is not a case in which there can be any suggestion that the Tribunal’s conduct in some way overbore the applicant’s legal representative. The transcript discloses that the Tribunal was highly responsive to the positions put by the legal representatives of the parties throughout the hearing and willing to accommodate these and tailor its approach accordingly.

61    In these circumstances, a party asserting jurisdictional error by the Tribunal needs to do more than point to the Tribunal having suggested or indicated to the party’s legal representative that it did not immediately accept a procedural proposition put during the course of the hearing. The Tribunal is entitled to expect that legal representatives will put it on notice of any important procedural matter and enable it to make a fully informed ruling on the procedural issue at the time. In this case, the applicant’s legal representative did not do so other than when submitting that the cross-examination of the applicant should cease. I do not say this by way of criticism of the applicant’s legal representative. The fact the applicant’s legal representative did not put the Tribunal on notice of any important procedural matter during the hearing, in my view, reflects the reality that the Tribunal’s indications of its position had no material effect on the running of the applicant’s case. This, as I have said, is reinforced by the lack of any evidence about what evidence the applicant’s legal representative says he could not adduce from the applicant’s sister or what submissions in reply he could not make.

62    Further, and as the respondent submitted, the fundamental concern of procedural fairness is avoiding practical injustice: Karan v Minister for Home Affairs [2019] FCAFC 139 at [33]. That issue is to be determined by reference to the proceedings as a whole: Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [32]. The applicant has not demonstrated any practical injustice arising as a result of the conduct of the hearing. He has not identified that anything that might have occurred but for the indications given by the Tribunal challenged as part of grounds 2 and 3 could be material to the outcome because the content of that further material which might have been adduced in evidence or said in reply submissions is unknown. Accordingly, the asserted practical injustice and materiality of the issues remains merely hypothetical. The same propositions apply to the other ways in which the same alleged error is identified such as a failure of consideration. The alleged failures are merely hypothetical.

63    It follows that the application for judicial review must be dismissed with costs.

Associate:

Dated:    11 March 2022