MZYWC v Minister for Immigration and Citizenship [2012] FCA 1457 | Case summary

REASONS FOR JUDGMENT 1 This appeal is from the judgment of the Federal Magistrates Court of Australia, delivered on 12 September 2012 and published as MZYWC v Minister for Immigration & Anor [2012] FMCA 797. The learned federal magistrate dismissed with costs an application made to the Federal Magistrates Court by the appellant. The application was for the purpose of seeking to overturn a decision of an independent merits reviewer ("the reviewer"), the second respondent to the appeal, under the Migration Act 1958 (Cth) ("the Migration Act"). 2 The reviewer made a recommendation to the Minister for Immigration and Citizenship ("the Minister"), the first respondent to the appeal, that the appellant not be recognised as a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended, by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. If the appellant had been a person to whom Australia has protection obligations, pursuant to those instruments, he would have satisfied the criterion referred to in s 36(2)(a) of the Migration Act, which is a criterion for the grant of a protection visa. A recommendation by the reviewer favourable to the appellant would have given rise to consideration by the Minister as to whether the Minister should exercise his power under s 46A(2) of the Migration Act to permit the appellant to make an application for such a visa. 3 By the time the proceeding came on for hearing in the Federal Magistrates Court, there was an amended application to that court, which contained only a single ground. The ground suggested that the reviewer had denied the appellant procedural fairness, on the basis that the appellant's capacity to participate in a hearing conducted by the reviewer was significantly diminished by mental health issues, namely a cognitive disability which meant that the appellant was not able to understand or respond to questions put by the reviewer, or at least to do so consistently and without vagueness, and that the appellant's ability to make rational decisions was impaired in a substantial way. It is significant that the reviewer's recommendation was based heavily on his view of the credibility of the appellant. In turn, that view as to credibility was very heavily based on what the reviewer described as fundamental inconsistency and vagueness. 4 In support of the application to the Federal Magistrates Court, the appellant, who was then represented by counsel other than the counsel who appeared for him in this appeal, sought to rely upon a report of Dr Lindsay Vowels, signed on 6 July 2012. Counsel then appearing for the Minister, who also was not the counsel appearing in this appeal, opposed the admission of the report. 5 In the course of the federal magistrate's reasons for judgment, his Honour summarised the history of the appellant's application to be considered for a protection visa and the circumstances in which the appellant, a 40 year old Hazara man, left Afghanistan and travelled to Australia. His Honour also summarised the reasons for decision of the reviewer. His Honour then referred to several passages in the transcript of the hearing before the reviewer, in which the appellant had indicated to the reviewer, that he had some difficulties with dizziness, concentration and memory and that his memory led him to say inconsistent things. 6 The federal magistrate then referred to authorities. At [26], his Honour said: It is clear that evidence of the sort that the applicant seeks to rely on is potentially admissible. 7 After citing authorities concerning the admissibility of such evidence, his Honour then turned at [27]-[29] to an examination of the judgment of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553. In that case, the Full Court held that the invitation extended by the Refugee Review Tribunal ("the Tribunal") under s 425 of the Migration Act had not been a meaningful invitation, because the mental condition of the person concerned was such that he was unable to participate in a real way in the hearing by giving evidence and making submissions. At [30], the federal magistrate referred to Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41 (2010) 183 FCR 575, in which Keane CJ had distinguished SCAR. The distinction was that, in SCAR the Tribunal was oblivious of the facts that established that the person concerned did not have a full and fair opportunity to present a case, whereas in SZNVW the person concerned had relied on his psychological problems before the Tribunal, which had made adverse credit findings taking into account those psychological problems. 8 The federal magistrate then referred to evidence other than the report, in the form of medical records that had been made available to Dr Vowels. His Honour set out a number of passages from those medical reports, including a reference to a CT scan, which he said showed no abnormality. At [44]-[45], his Honour referred to the fact that the medical records revealed that the appellant had been saying over a substantial period of time that the process of review was stressful to him, but that he was also perfectly capable of giving coherent and reasonably detailed accounts of himself to various health professionals with whom he inter-related. 9 His Honour then examined the report of Dr Vowels, quoting various passages from it, and making comments on the weight of various assertions in it. In the course of summarising the submissions of the parties, at [62], the federal magistrate said: Counsel for the applicant submitted that the question of the admissibility of Dr Vowels' [sic] evidence was a matter for the Court's discretion. It is implicit in such a concession that it involves matters of judgment and degree. There has been some concern expressed in the argument on appeal as to whether such a submission was ever made by counsel then appearing for the appellant. If such a submission were made, it was manifestly wrong. Admissibility of evidence is never a matter of discretion. It is a matter to be determined according to the rules for which the Evidence Act 1995 (Cth) ("the Evidence Act") provides. 10 At [67], the federal magistrate said: In my view in the particular circumstances of this case, Dr Vowels' [sic] report should not be admitted into evidence. His Honour then referred to some observations of Heydon JA in Makita (Aust) Proprietary Limited v Sprowles [2001] NSWCA 305 (2001) 52 NSWLR 705 at [85], concerning the nature of experts' reports. Exactly what use his Honour made of these comments, other than that he said he bore them "steadily in mind," it is not clear. To the extent to which the material in Dr Vowels's report was to be judged as to its admissibility as evidence, it was so to be judged by reference to the rules about opinion evidence in Pt 3.3 of the Evidence Act, and particularly the criteria in s 79(1). 11 At [68], the federal magistrate summarised his reasons as follows: a) On any view, the report of Dr Vowels was very much later than the events the subject of particular concern. Unlike SCAR, Dr Vowels only saw the applicant over six months after his IMR hearing. Unlike SCAR, there is intervening medical evidence such as the report in February 2012 which shows the applicant to have been in reasonable health. I approach Dr Vowels' conclusions, which are of course critical to her findings as to how the applicant was in December 2011, with considerable caution; b) Dr Vowels has plainly taken the applicant's evidence as a datum, when it is not established; c) The tests upon which Dr Vowels relied, such as the Wechsler test, must also be approached with considerable caution. There is, in my view, force in the criticisms advanced by the first respondent's counsel as set out above; d) An examination of the transcript of the hearing shows, unlike the situation in SCAR, that the applicant did indeed refer to precisely the matters raised by Dr Vowels. The Reviewer was well aware that the applicant was asserting that he had difficulties in recollection and organising his thoughts, and the remarks in paragraph 69 of the Reviewer's decision as set out earlier suggest a sympathetic response to these issues; e) Unlike SCAR, the applicant was represented throughout the proceeding and his representative at no point sought to introduce any evidence as to his mental state, or otherwise seek an adjournment to do so; f) The apparent failure of Dr Vowels to pay attention to the CAT scan of the applicant's head, while certainly not in any sense determinative of the value to be ascribed to her report, is a matter of note. His Honour then said at [69]: In all these circumstances, in my view, the report of Dr Vowels should not be admitted. 12 In his concluding remarks at [71], his Honour said that he accepted fully that: Dr Vowels is a person who has specialised knowledge based on her training, study or experience to whom the opinion rule does not apply His Honour referred to s 79 of the Evidence Act. At [72], his Honour also said that Dr Vowels's report "generally meets the requirements set out by Heydon JA in Makita." His Honour again repeated: I do not think her report should be received into evidence. 13 Sadly, the argument in the proceeding at first instance seems to have been conducted on a wrong footing. The federal magistrate seemed to have assumed that he had some general discretion as to the admissibility of evidence, so that, despite his view that s 79 of the Evidence Act operated to exempt the report of Dr Vowels from the general rule excluding evidence of opinion, his Honour could somehow set aside that evidence. The passages I have quoted from his Honour's reasons for judgment in [62], [67], [69] and [72] demonstrate that his Honour saw himself as making a discretionary decision on the admissibility of the evidence. In part, the discretion seems to have been exercised against admitting the evidence because his Honour took the view that the report of Dr Vowels was not particularly reliable. 14 In saying what he said in subpara (a) of [68] of his reasons for judgment, his Honour seems to have misapprehended the principle in SCAR. That principle was effectively one as to the consequences of establishing that a particular hearing was not a hearing of the kind contemplated by s 425 of the Migration Act, and therefore that the requirement for an invitation to such a hearing had not been satisfied. SCAR was not a judgment in which there were any rules or principles laid down as to the nature of evidence that might establish that the principle was applicable to any particular hearing. It was not a matter bearing on the admissibility of the report that Dr Vowels only saw the appellant more than six months after his hearing before the reviewer. The question was, as Dr Vowels clearly understood, one as to the appellant's mental condition on the day of his hearing. The report of Dr Vowels was directed to demonstrating that, as a result of what she observed and was told, she was able to form an opinion that the appellant's mental condition was impaired on that day when he was appearing before the reviewer. 15 The fact that there might be other evidence that undermined some of the assumptions in Dr Vowels's report, or that might have given rise to a conflicting view, or even to have caused the court to reject the opinion of Dr Vowels, was neither here nor there in relation to the question of admissibility. For the same reason, it was wrong of the federal magistrate to take issue with the manner in which Dr Vowels relied on the history that the appellant had given to her. Dr Vowels's opinion was plainly based on that history. If, as a matter of fact, at a trial in the court, the validity of the history could be undermined by other evidence, or indeed could not be accepted because of the absence of evidence supporting the facts asserted, then that might be a reason for rejecting the opinion of Dr Vowels. It was not a reason for suggesting that the evidence of the opinion of Dr Vowels was not admissible. 16 Nor was it open to the federal magistrate to set himself above Dr Vowels as an expert in the application of tests such as the Wechsler test, as he did. It is clear from Dr Vowels's report that she well understood the limitations of the tests she applied in relation to a person with the background that the appellant had. His Honour had no power to reject the evidence of Dr Vowels's opinion by undermining her expertise, without any contrary evidence. In this respect, it is significant that his Honour did not regard the expertise of Dr Vowels as having been undermined, judging by what he said in [71] and [72] of his reasons for judgment. 17 In addition, factual distinctions between the facts of SCAR and the facts of the particular case were not relevant to the admissibility of the evidence of the opinion of Dr Vowels. It is difficult to see how the independent reviewer could have made any expert determination as to the mental condition of the appellant, based on the things that the appellant said in the course of the hearing before the independent reviewer. The significance of the principle in SCAR is that it is open to an applicant for a protection visa to challenge the findings made by a tribunal, or an administrative decision-maker, if that person is able to do so based on evidence that establishes a lack of mental capacity to participate in the hearing. 18 Finally, it is not at all clear what weight, if any, the federal magistrate placed on what he described as the failure of Dr Vowels to pay attention to the CT scan of the appellant's head. His Honour certainly took the view that that failure was not determinative. In that sense his Honour was correct. If the failure was of significance, however, it could only be significant in determining whether the opinion of Dr Vowels should be accepted ultimately and not in determining whether her opinion was admissible. 19 It is, therefore, clear that there was error on the part of the federal magistrate in not regarding the contents of the report of Dr Vowels as admissible evidence of her opinion. 20 In the course of preparing for the appeal, counsel for the appellant speculated in his written outline of submissions as to the basis on which the federal magistrate might be taken to have refused to admit the report of Dr Vowels into evidence. For the first time, reference was made to s 135 of the Evidence Act. That section provides: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 21 It is clear that the federal magistrate's attention was never directed to s 135. I have also been informed that counsel who appeared for the Minister at first instance did not make any application to his Honour to exclude the evidence of the opinion of Dr Vowels on the basis of a comparison of its probative value with any of the factors referred to in paras (a), (b) and (c) of s 135. Nevertheless, and no doubt prompted by the speculation of counsel for the appellant, the Minister was prepared to accept that the discretion of the federal magistrate had miscarried and to consent to orders that were intended to have the effect that the orders of the federal magistrate made on 12 September 2012 be set aside and that the matter be remitted for reconsideration by the Federal Magistrates Court, differently constituted, with the Minister paying the appellant's costs of the appeal. 22 These consent orders were submitted in a document dated 22 November 2012, signed on behalf of the Minister and the appellant. The document contained a note in the following terms: The Federal Magistrate erred in his exercise of the discretion as to the admission of the report of Dr Vowels. 23 For a number of reasons I felt it inappropriate to make these orders. The first was that they contained no order as to the disposition of the appeal. The second was that the order for remittal was not well expressed and I have doubts as to whether this Court has power to direct the composition of another court. It is true that appeals are often allowed and matters are remitted to be heard and determined again by another judge, but usually such orders are made within the one court and not with respect to a wholly independent court. It is also true that, from time to time, orders are made remitting matters to administrative tribunals and decision-makers to be heard and determined again, with a direction that the tribunal be reconstituted or the decision-maker be a different person. Such orders are made pursuant to specific statutory powers given to the Court. 24 Perhaps the most important consideration in my reluctance to make the proposed consent orders was that they seemed to me to be productive of opportunities for further exploration of questions of admissibility and admission of the evidence that were unwarranted. Not the least of these was that the proposed orders would have provided an opportunity for the Minister to raise in the Federal Magistrates Court the question of the discretion to exclude evidence under s 135 of the Evidence Act, a matter that had never been raised previously. 25 Second, it seemed to me that the evidence contained in the report of Dr Vowels was manifestly admissible and that, on the face of the report, that is to say without taking into account other evidence, the evidence of her opinion was of high probative value. The question of the admissibility of the report was a matter that I could determine conclusively in the appeal. The question of the exercise of any discretion to exclude such evidence was also a matter that I could determine on appeal on the basis that the matter could then be remitted to the Federal Magistrates Court to be heard and determined on the basis that the evidence before the court included the report of Dr Vowels. I should say that no objection to that report has ever been taken on the basis that the evidence was not given orally by Dr Vowels in open court. As to whether there would then be cross-examination of Dr Vowels and the admission of other evidence, both to substantiate the assumptions on which the report was based and to discredit them, if such evidence should be available, would be a matter for the Federal Magistrates Court. 26 After argument had proceeded to some extent, counsel for the Minister invited me to stand down the hearing of the appeal for a short while, to allow him to seek instructions. The result is that the parties are agreed that orders should be made by consent, allowing the appeal, setting aside the orders made by the Federal Magistrates Court on 12 September 2012, remitting the matter to the Federal Magistrates Court to be heard and determined on the basis that the evidence contained in the report of Dr Vowels is before that court, and requiring the Minister to pay the appellant's costs of the appeal. 27 In the circumstances, and for the reasons I have given, those orders appear to me to be an appropriate exercise of the judicial power of this Court in dealing with the appeal. The orders proposed do not invite me to determine the composition of the Federal Magistrates Court on any rehearing in that court. They do leave open the possibility that, if the same federal magistrate were to be assigned to the further hearing, there would be an objection to the same federal magistrate being involved, on the basis that his Honour has already stated some views of considerable firmness about the reliability of the contents of the report. It is therefore significant to record that the Minister, through his counsel in the appeal, is prepared to consent to an order that the matter be heard by a different federal magistrate. 28 I, therefore, make the following orders by consent:

The appeal be allowed.
The orders made by the Federal Magistrates Court of Australia on 12 September 2012 in proceeding number MLG 269 of 2012 be set aside.
The matter be remitted to the Federal Magistrates Court of Australia to be heard and determined on the basis that the evidence contained in the report of Dr Lindsay Vowels, signed on 6 July 2012, is before that court.
The first respondent pay the appellant's costs of the appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.

MZYWC v Minister for Immigration and Citizenship

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