Amankwah v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The Applicant, Mr Solomon Amankwah applies to the Court for judicial review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs ("the Minister") that he not be granted a protection visa. The sole ground of review is that the Tribunal failed to observe procedures which it was required to observe: s 476(1)(a) and s 420(2)(b) of the Migration Act 1958 ("the Act"). 2 The case is an unusual one. On 25 January 1998, after he had applied to the Tribunal for review of the delegate's decision, but before the hearing of that review, Mr Amankwah was involved in a motor vehicle accident. It is not in dispute that as a result of that accident he suffered traumatic brain injury as well as a fracture of the cervical spine and multiple facial fractures. A neurosurgical procedure was required to evacuate an extra-dural haemorrhage on the day of the accident. He was subsequently transferred to a brain injury unit of Westmead Hospital. 3 On 3 March 1998 the Tribunal notified him that it was unable to make a favourable decision on the papers and advised him that a hearing was scheduled for 30 March 1998 so that oral evidence could be taken. A social worker advised the Tribunal that Mr Amankwah would be unable to attend the hearing on that day and that a letter would be sent to the Tribunal with medical certificates. A subsequent letter dated 16 March, signed by the social worker advised the Tribunal that a tracheostomy tube had been only removed on 6 March, that he as in a body cast from the waist up and was undergoing assessment. The letter noted that Mr Amankwah was keen to participate in a hearing and said that it was expected that a "date closer to the end of May or early June (would) be more appropriate". A letter signed by the Registrar Rehabilitation Medicine, (undated), which presumably accompanied the social worker's letter indicated that Mr Amankwah had made considerable progress to date, that assessments were proceeding and that Mr Amankwah could not appear at that time. That letter recommended that the hearing be delayed several months until he was well enough to appear. 4 The Tribunal replied on 19 March to the social worker advising that the hearing had been adjourned and would be rescheduled. The facsimile noted that the Tribunal would be in contact with the social worker in early May to discuss when Mr Amankwah would be ready for the hearing. It requested that the Tribunal be contacted if Mr Amankwah was released or his condition improved. 5 It seems that Mr Amankwah was released from hospital on 26 March. A social work summary from Westmead Hospital dated 15 April noted that Mr Amankwah had been in post traumatic amnesia until 19 February (25 days) and that it had yet to be determined whether he was left with ongoing cognitive problems. 6 It is not clear whether the Tribunal had further contact with the social worker. By letter dated 1 May 1998 it notified Mr Amankwah that a hearing would be held on 28 May. On the standard form Response to Hearing Offer, which Mr Amankwah was invited to complete, in answer to the question whether he wanted the Tribunal to take oral evidence from other witnesses Mr Amankwah indicated that he did. The question whether he had any special needs for the hearing elicited the response: "I prefer someone will come from the Westmead Hospital or CRS Commonwealth Rehabilitation Service, Ashfield". The form noted that Mr Amankwah would be represented by a migration agent. 7 The hearing proceeded on 28 May. So far as appears no request was made by the migration agent for an adjournment. 8 In its reasons for decision the Tribunal noted that it had read the medical evidence to which I have referred and that as a result of the accident Mr Amankwah had sustained cognitive deficits including some memory loss. It said that it accepted a neuropsychological report dated 24 April 1998. That report, given by a Ms Flanagan, from the School of Psychology of the University of New South Wales indicated that at the time of discharge from Westmead Mr Amankwah was reportedly functioning independently in terms of money management, public transport, cooking and limited grocery shopping. The report continued: "Some difficulties were reported in terms of high level problem-solving, following novel and/or abstract instructions, insight into the possible functional consequences of his injuries and frustration tolerance. He was also noted to fatigue more easily, requiring several rest periods during the day." 9 Later in the report Ms Flanagan wrote: "Mr Amankwah reported that he felt his memory had been affected by his injury and sometimes he 'can't remember quick'. He said that sometimes he found it difficult to understand what people said and his concentration was weak. He said that since the accident he had changed and he didn't feel himself. He said prior to his injury he had talked and laughed more with friends. He said that since the accident he had become withdrawn and quiet and sometimes felt himself 'slip back into oblivion'. He said friends had commented on his tendency to 'think too much'. He reported a loss of taste, itchiness of the head and a great deal of pain associated with his facial injuries. He also reported pain and discomfort in his back, both when sitting and laying(sic) down, and frequent headaches, which were only minimally responsive to Panadeine. He reported disturbed sleep, loss of appetite and loss of more than 15kg in weight since his injury. He reports that he is assisted with most of his activities of daily living, such as laundry and cooking, by his flatmate and that he finds it difficult to tolerate going out or socialising." 10 Ms Flanagan noted that on tests Mr Amankwah was below average with the exceptions of some tests of verbal immediate memory and learning. In many tests he scored in the severely impaired range. His immediate memory span for verbal information was borderline and his working memory was very limited. On the other hand he apparently performed well within the average range on a test involving the immediate recall of two short stories read to him once. Ms Flanagan expressed some doubts about the validity of the way this test was administered and the results recorded. Ability to recall events after a delay was worse than immediate recall. Information processing speed was slow. His verbal reasoning skills were difficult to assess. She noted that the tests demonstrated impairments in many areas of cognitive functioning. She noted that the results may have been affected by depression which Mr Amankwah also suffered from. She recommended that he receive psychological intervention and further testing to provide a clearer picture of the long term effects of his injury. 11 The hearing proceeded. Mr Amankwah had the assistance of an interpreter, which may make it difficult to determine what, if any difficulties he experienced. Suffice it to say that a perusal of the transcript does not demonstrate any difficulty in comprehending the process. However, Mr Amankwah often gave conflicting answers. The Tribunal found Mr Amankwah's claims (often in conflict with what he had said in his original application) not credible, confusing and contradictory and incoherent. The Tribunal wrote in its reasons: "The Tribunal finds that the applicant is not a credible witness. There were many material and substantial contradictions and inconsistencies in his claims, that were not explained to the satisfaction of the Tribunal. Some of his testimony and some of his claims were simply not plausible or believable. Some of his testimony was incoherent or confusing. As well, some of his claims were at odds with the independent evidence. In these circumstances, for the following reasons the Tribunal finds that his claims are not credible.