5.3 Did the Tribunal extend to the appellants a real opportunity to appear in accordance with s 425 of the Migration Act (Grounds 2 and 10)?
95 It is convenient to deal with grounds 2 and 10 together as both concern the conduct of the hearing by the Tribunal.
96 First, by ground 2 the appellants alleged that the AAT failed to provide them with an invitation to appear in compliance with s 425 in circumstances where Dr Naidoo's report had clearly advised that Mr [AFD] was unfit to attend the Tribunal. In particular, the appellants submitted that the primary judge's reasons for finding that the appellants had not established that Mr [AFD] was not given a meaningful opportunity to attend a hearing and give evidence and present arguments at [27]- [28] were based on an understatement of Dr Naidoo's opinion as to Mr [AFD]'s mental state and a lack of appreciation of the submission made on behalf him, as well as an acceptance that the Tribunal did enough to accommodate Mr [AFD]'s mental health condition (AS-2 at [28]). As against the seriousness of Mr [AFD]'s mental illness, the appellants described the provision of rest breaks with some force as "hollow gestures" (AS-2 at [30]). They further submitted that:
The submission was that the First Appellant was not able to give cogent evidence or present arguments because of his serious mental state. His attendance at the hearing, was not evidence that he was able to make the decision to agree to attend or that he could give cogent evidence or present arguments. His evidence to the Tribunal in response in the affirmative to the question "are you medically able?" is not evidence that he was in fact able to give evidence and present arguments to the Tribunal. The Tribunal misunderstood its statutory obligation to provide an opportunity for a meaningful hearing and understated the severity of the diagnosed condition by the expert. The Tribunal did not properly take account of the entirety of the relevant evidence of the expert and it reduced a comprehensive report regarding the mental health condition of the First Appellant to a couple of points, being that he was unfit to work and attend the hearing, but that expediting the process would be of substantial benefit to him. The Tribunal preferred its own assessment of the medical fitness of the First Appellant to give evidence and present arguments over that of an expert consultant psychiatrist, without explaining why.
(AS-2 at [29])
97 In their submission the appellants stated that they did not contend that Mr [AFD] was denied the opportunity to put his case in the best possible way which was not an error of a jurisdictional kind, but rather that he was "severely prejudiced by his severe mental condition" (AS-2 at [30]).
98 Secondly, by ground 10 the appellants submitted that the FCC erred at [50] in finding that "the applicant had every opportunity to address the issues" of his mental condition and credibility and failed to find that the AAT had acted unreasonably by not permitting the appellants' advisor to participate in the hearing and assist given Dr Naidoo's evidence.
99 The transcript of the AAT hearing on 28 October 2015 reveals relevantly that the following exchange between the Tribunal member, Mr [AFD] and the appellants' migration agent, Mr McArdle, with the assistance of the interpreter (INT) took place after the member briefly outlined the criteria for a protection visa:
Q34 … Now, I am aware that there have been some mental health issues with yourself - with both applicants? Are you medically able to attend and undertake this hearing?
A(INT) I am very fearful.
MR McARDLE He's acting against advice in coming today.
Q35 So you have - you believe you are medically able to attend this hearing?
A(INT) But I am afraid, I am panicking, I am very, very scared.
Q36 Okay. I understand that you need - this is a yes or no question. So are you medically able to attend this hearing?
MR McARDLE It's not really a yes or no answer, if I may say so.
Q37 Can you just be quiet and not interject please? I am asking the applicant a question.
MR McARDLE I was just trying to be of assistance.
Q38 Well, can you stop being of assistance until I request your assistance. I have a copy of your psychiatric report. You have voluntarily attended - come to attend this hearing. Are you - do you believe that you are able and fit to attend this hearing? You need to answer yes or no. I understand you are anxious and nervous.
A(INT) I can but I am tired. There is a bit of exhaustion.
Q39 Okay. But you believe that you are able to attend?
A(INT) Yes.
…
Q41 Okay. Now, I have taken into account your medical report. If, during this hearing, you are getting too anxious and you need a break during the hearing please let me know and I'll facilitate those breaks for you if you believe your anxiousness - if you believe you are getting too anxious and it is impacting on your ability to give coherent evidence I am happy to give you a break. Okay. Do you understand?
A(INT) Okay. Yes, I understand.
…
Q45 Okay. What I will ask now if you can wait outside. As I said before, please let me know if you need a break during the hearing. Just to lower your stress levels I am happy to take a series of short breaks if you require them.
(AB408-410)
100 It appears that Mrs [AFD] was present during these exchanges, but was then asked to wait outside while her husband was questioned. Mr McArdle, the appellants' migration agent, was present throughout the hearing. On a number of occasions, during the hearing, Mr McArdle attempted to interrupt in order to request a break for the appellant. The first occasion was shortly before the end of the first hour when the member was in the course of asking questions about the risks that his daughters would be subjected to female genital mutilation despite Mr and Mrs [AFD]'s opposition. The member refused to allow Mr McArdle to speak, simply saying "Not finished yet." (AB419, Q96). Not long thereafter the following exchange took place:
Q104 So you wanted to raise something?
MR McARDLE Just you asked the witness if he wants to go to the toilet or something like that. We have been going for an hour and a half.
Q105 Yes, that is fine. Excuse me.
MR McARDLE Sorry.
Q106 Please do not do that.
MR McARDLE What's that, your Honour?
Q107 Please don't suggest to me when he might want to break.
MR McARDLE I see.
Q108 I will be the arbitrator.
MR McARDLE Okay. Well, it might be helpful if you ask him.
Q109 I'll ask him when I am ready to ask him.
MR McARDLE Very well.
Q110 Okay. I'd like to go on to your claim about religion.
MR McARDLE Can I just ask one thing though? You did say he could tell you if he ever wants a break.
Q111 Correct.
MR McARDLE You did say that earlier.
Q112 Yes I did.
MR McARDLE Yes.
Q113 I didn't say you could ask me for a break on his behalf though, did I?
MR McARDLE I was just trying to be of assistance.
Q114 Okay. I think, as I said at the start, unless you've got something substantive to add, then please don't try and interrupt.
MR McARDLE I'm not trying to interrupt, I was just trying to be of assistance.
Q115 Okay. I think we'll just leave it there. Okay. So I'd like to go on now to your claim about the Christianity.
A(INT) Can I please go to the toilet?...
(AB 420-421)
101 Finally, at this point Mr [AFD] was permitted to take a toilet break before the hearing continued.
102 It must be borne in mind that the audiotape of the hearing was not in evidence and therefore that the tone in which the AAT member was speaking in these passages is not known. Nonetheless, these passages give rise to real concerns as to the fairness of the hearing given in particular: Dr Naidoo's opinions as to the seriousness of Mr [AFD]'s mental illness, his extreme anxiety and the serious dangers which attending a hearing might pose to his mental health; and by reason among other things of the member's refusal to permit his representative to make submissions about his mental capacity to give evidence at the hearing and to request a break for Mr [AFD]. The member's conduct in these respects also, as I have mentioned, reinforces my conclusion that the Tribunal member has comprehensively failed to consider, in a real and meaningful sense, the ramifications of Dr Naidoo's medical opinions.
103 It is to be expected that an officer of the Commonwealth occupying a position of considerable authority and power will always treat an applicant and her or his representatives with dignity and respect, particularly where the applicant is in a situation of extreme vulnerability, and the failure to do so may be indicative of jurisdictional error. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 with reference to a consideration of whether a decision is legally unreasonable:
9. … The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
104 Nonetheless, despite my concerns I do not consider that a jurisdictional error is established in this case by grounds 2 or 10. Given my conclusion that the appeal must be allowed in any event on ground 5, my reasons can be briefly stated.
105 With respect to ground 2, the AAT's obligation to provide an applicant for a protection visa with an invitation to appear is governed by s 425 of the Migration Act. That section provides that:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
106 The AAT may fail to give an applicant an invitation in compliance with s 425 of the Migration Act even if it is unaware of the adverse impact of a mental illness upon the particular applicant's capacity to represent herself or himself and give evidence. As the Full Court in BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116 (BJB16) explained (referring to Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [41]):
41. The authorities concerning s 425 of the Migration Act indicate that an inability of applicants to represent themselves before the Tribunal by reason of mental or physical unfitness may, even if not known by the Tribunal, give rise to a failure by the Tribunal to provide a "real and meaningful" invitation to them to appear before the Tribunal to give evidence and to present arguments relating to the decisions under review.
107 The Full Court further explained in BJB16 that:
43. 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 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.
108 Similarly in SZNCR (in a passage cited by the primary judge at [25]), Tracey J held that:
30. … an applicant who has a diagnosed mental impairment which does not render him or her "entirely unfit" to attend a Tribunal hearing and answer questions cannot be held to have been denied a "real and meaningful" opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.
(emphasis added)
(See also Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 (SZNVW) at [20] (Keane CJ).
109 It can readily be accepted, as the appellants submitted, that Mr [AFD] was severely prejudiced by his serious mental condition. There is also considerable force in the submission that the Tribunal's offer to provide rest breaks only where Mr [AFD] asked for them and not his representative, failed sufficiently to accommodate Mr [AFD]'s serious mental condition and afford him a fair hearing, given among other things the implicit assumption that Mr [AFD] would feel able to do so and was able to self-assess as to when he needed a break.
110 However, as the primary judge held, the evidence did not go so far as to establish that Mr [AFD] was rendered "entirely unfit" to attend the AAT hearing and answer questions, applying BJB16 and SZNVW. The transcript indicates that he was able to participate in the hearing and answer questions generally in a responsive and, at times, relatively detailed manner. Nor did Dr Naidoo express an opinion that Mr [AFD] was unable to give evidence, as opposed to raising concerns about the serious dangers that attending a hearing might pose for Mr [AFD]'s mental health, as the primary judge held at [27]. That notwithstanding, the real difficulty in circumstances where his illness was the subject of detailed, expert evidence and no application was made for an adjournment on the basis of that evidence, was the Tribunal's failure to take the psychiatric evidence into account in assessing the Mr [AFD]'s credibility as I have already held with respect to ground 5.
111 With respect to ground 10, the appellants submitted that the Tribunal has a discretion to permit the appellant's advisor to participate in the hearing and assist which it failed to exercise reasonably for the following reasons:
The First Appellant had medical evidence that demonstrated an incapacity which, on any reading, impacted on his ability to attend the hearing and present argument. The complaint is not that he was not able to give his best evidence or present his best case, but to present his case unencumbered by significant mental illness and psychiatric impairment of which the Tribunal has evidence.
His legal representative was present and could have assisted with country information and the First Appellant's history. The approach adopted by the Tribunal indicates a distrust of the Appellant and his advisor, and his preventing the advisor from participating in the hearing was unreasonable in all the circumstances.
The measures taken by the tribunal to ask whether the First and Second Appellants felt medically able to give evidence and could take breaks if they needed to were insufficient and as submitted below to the Federal Circuit Court a "hollow gesture", which was meaningless and perfunctory and failed to address the real issue.
(original emphasis) (AS-3 at [26]-[28])
112 Notwithstanding the concerns earlier expressed as to the manner in which the AAT conducted the hearing, the appellants have not established that the AAT's conduct in restricting the appellants' representative's participation at the hearing in the way that it did constituted jurisdictional error.
113 First, any determination of legal unreasonableness falls to be determined against the particular statutory context: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 322 at [92] (Gageler J). In this regard, s 427(6)(a) of the Migration Act provides that a person appearing before the AAT to give evidence is not entitled "to be represented before the Tribunal by any other person" (cf s 366A). The AAT, therefore, had no statutory obligation to permit the appellants' representative to speak or participate in the hearing. It follows as McHugh J held with respect to s 427(6)(a) in Re Minister for Immigration and Multicultural Affairs; Ex Parte Cassim [2000] HCA 50; (2000) 74 ALJR 1404:
11. … That subsection declares that a person appearing before the tribunal is not entitled to be represented or to examine or cross-examine witnesses. The common law rules of natural justice cannot prevail against this legislative declaration.
114 Furthermore, while a refusal to permit a person to be represented may, depending upon the circumstances, constitute a breach of procedural fairness, s 422B of the Migration Act excludes the natural justice hearing rule in respect of the matters dealt with in that division, including s 427(6)(a): cf WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; (2004) 134 FCR 271 at [72] and [84] (French and Lee JJ) and [91] and [110] (Hill J) which concerned the Migration Act as it stood before the enactment of s 422B. It follows, as the Minister submits, that to suggest that it would be unreasonable not to permit legal representation as a general proposition would be to impose a requirement that is inconsistent with the statute.
115 Legal unreasonableness, however, is "invariably fact dependent… [and] will require careful evaluation of the evidence, including any inferences which may be drawn from that evidence": Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [42] (the Court). It is therefore possible that in the particular circumstances of the particular case, it may be unreasonable to refuse to permit a representative to appear and participate at a hearing, or to refuse to consider such a request, where, for example, the person was incapable by reason of psychiatric illness of making submissions on their own behalf. In my view, it is no answer to this, with respect, to say that many individuals who appear before the AAT suffer from psychological disorders or psychiatric illness contrary to the Minister's submissions (RS-3 at [18]). The decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [92] cited by the Minister does not suggest otherwise.
116 In this case, the Tribunal sought only to limit the representative's participation so as to enable the Tribunal to ask questions directly of Mr [AFD] without the representative's contribution. Furthermore, the Tribunal stated early in the hearing that after Mr and Mrs [AFD] had completed their evidence, "I'll give your adviser the opportunity to clarify anything that's been said or to put forward any additional comment." (AB407, Q30). At the end of the hearing, the Tribunal allowed the representative the opportunity to provide further information and submissions with the benefit of the transcript of the hearing, as requested (AB405-459). A further submission was in fact made following an unsuccessful application for the Tribunal member to disqualify himself, and was taken into account by the Tribunal in its decision.
117 In those circumstances, while reasonable minds may differ, even strongly, with the approach adopted by the Tribunal member with respect to the appellants' representative's ability to represent them at the hearing, that does not suffice to establish that the Tribunal's limitations upon the representative's participation were so egregious and unfair as to be legally unreasonable.