Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs

We wish to address the Tribunal on this aspect after consulting with Dr Samad and [the applicant].' 3 So far as the evidence shows, the next communication from the Tribunal to the applicant was dated 9 June 2000 and advised that the Tribunal had made a decision which would be handed down on 27 June 2000. That decision was subsequently forwarded to the applicant with a copy to the adviser. 4 In that part of the Tribunal's reasons under the heading 'Findings and Reasons for Decision', the Tribunal first of all dealt with the decision to go ahead without giving the applicant a further opportunity to appear. I note that the Tribunal accepted that the applicant had clearly suffered some trauma in the past, consistently with the diagnoses offered by both a psychologist and a psychiatrist. The operative decision-making part of the reasons for going ahead can be gathered sufficiently from the following extract: 'As indicated in the Tribunal's letter dated 28 March 2000, the Tribunal is required, under section 420 of the Act, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. While the Tribunal is obliged under section 425 of the Migration Act to invite an applicant to appear before the Tribunal to give evidence (as it has done in the present case), I do not consider that the Tribunal is obliged to keep postponing a hearing where, as in the present case, there is clear evidence that the Applicant is mentally unfit to give evidence at a hearing before the Tribunal and where the expert evidence indicates that there is no certainty when, if ever, the Applicant will have recovered sufficient lucidity of mind to be able to attend a hearing before the Tribunal.

It has now been six months since the Tribunal first invited the Applicant to appear before it and the psychiatrist's report indicates that the Applicant's condition was present when he first saw the Applicant on 17 June 1999, almost a year ago. I do not consider that it is appropriate for the Tribunal to keep granting repeated postponements of the hearing in the absence of evidence that at some time in the reasonably foreseeable future the Applicant will in fact be fit to attend a hearing. In the circumstances of the present case I consider it appropriate to make a decision on the basis of the material already before me.' 5 It is submitted on the part of the applicant that the decision to proceed failed to comply with the obligations of s 425 in the context of the Act as it then stood and was also a breach of the rules of procedural fairness sufficient to amount to jurisdictional error. I am not satisfied that this was a breach of s 425 of the Act for the reasons explained by Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (NAHF) (2003) 128 FCR 359, particularly at [25]-[30]. However, I am satisfied, in the particular circumstances of this case, that what occurred was an unreasonable refusal of an opportunity to present a case sufficient to breach the rules of natural justice or procedural fairness, again as generally explained by Hely J in (NAHF) at [31]-[39], that reasoning being supported, at least, by the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003)128 FCR 553. I also refer to the passage relied upon by counsel for the applicant from the judgment of Gummow and Gaudron JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]. 6 I take that view not because of any general fault in the reasoning of the Tribunal, but because of the wider context in which that decision came to be made. There can be no general disagreement with the proposition that the Tribunal is under a duty to deal with a review in a 'fair, just, economical, informal and quick' manner (s 420). There will be circumstances where the incapacity of an applicant is such that the review by the Tribunal simply must take place without the benefit of oral evidence or oral contribution from that applicant. 7 However, in the present case, the Tribunal member does not appear to have given consideration to the fact that the application for review had been on foot since 1 May 1998. This, when taken together with the fact that the Tribunal member accepted that there were genuine psychiatric problems, led to a situation which, in my respectful submission, required that there be at least another opportunity given to put forward or to seek to put forward material from the applicant in person. After all, the Tribunal member had made it clear enough that he was not proposing to, and could not, find for the applicant on the basis of the written material. Thus, the appearance of the applicant would be essential to change the mind of the Tribunal member. There were, as submitted by counsel for the applicant, some indications in the evidence of fluctuations in the psychiatric condition of the applicant. There is also merit in the submission on his behalf that, given that it was accepted that there had been a trauma earlier in his life, there was a lively issue as to the cause of that trauma, and the effect of that cause upon a claim for a protection visa. 8 I must say that there is, and will be, a great air of unreality in dealing in August 2006 and thereafter with an application for a protection visa first made at the end of February 1998. I am also appreciative that, if the decision is set aside, the matter may be reconsidered in a different statutory setting. Whether that be the case or not, I cannot be troubled by the effect of that as the statute will prevail. 9 I should add that, in my opinion, there was no merit in the alternative point put by counsel for the applicant which was founded upon the acceptance by the Tribunal of the existence of an earlier trauma and sought to set aside the substantive reasoning on that footing. I also note that the Minister has very properly not sought to rely upon delay as a separate and independent ground of refusal of relief in this case. There is no need for me to do more than note that circumstance. 10 The following orders are hereby made absolute: (1) The decision of the Refugee Review Tribunal of 5 June 2000 be quashed. (2) The application for review be remitted to the Tribunal to be determined according to law. (3) The first respondent is to pay the costs of the applicant, including costs in the proceeding in the High Court prior to remittal to this Court. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Counsel for the First Respondent: Mr G Kennett; Mr B O'Donnell

Solicitor for the First Respondent: Australian Government Solicitor

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 28 August 2006

Date of Judgment: 28 August 2006