The psychologist's report
35 This was a claim that the appellant had given a psychologist's report about his mental health to his migration agent at the time of the Tribunal review for delivery to the Tribunal. The Tribunal's reasons for decision make it plain, however, that no such report was given to it prior to its decision. The appellant stated that he believed that his migration agent failed to deliver the report to the Tribunal and relied on this assertion in support of his appeal.
36 The Tribunal's reasons record that, after the hearing, it had afforded the appellant an opportunity to provide further documents in support of his application. The Tribunal stated that it "gave the applicant until 7 February 2012 to do so" and that, in an email on 6 February 2012, the appellant's representative said, amongst other things, that the appellant "intended to provide a psychologist's report in relation to his mental health" and that he "required at least another three weeks in order to do so". The Tribunal returned to this topic towards the conclusion of its reasons, observing:
The Tribunal notes that at the hearing the applicant stated that he had been stressed by what was happening in Pakistan in 2009 which had prevented him from continuing studies in Australia and that in his email to the Tribunal received 6 February 2012 the representative advised that the applicant wished to provide a psychologist's report in relation to the applicant's mental health within three weeks. It is now over seven weeks since the Tribunal received that email and the applicant has not provided a psychologists [sic] report to the Tribunal. …
37 Since the Court recognised that, in some limited circumstances, a failure to provide a document to the Tribunal might render a decision reviewable for jurisdictional error or a constructive failure to exercise jurisdiction (without fault on the Tribunal's part), the Court gave the appellant an opportunity to provide some evidence that, prior to the Tribunal's decision, such a report existed and that the appellant had given the report to his migration agent.
38 For the reasons stated hereafter, the appellant failed to provide sufficient evidence to satisfy me that he had obtained such a report and that his migration agent had failed to provide it to the Tribunal. The appellant failed to persuade me that, in this regard, he had a tenable basis for alleging jurisdictional error or constructive failure to exercise jurisdiction. Accordingly, it has proved unnecessary to call on the Minister to make submissions on the issue.
39 There seems little doubt that a decision-maker may, without personal fault, deny procedural fairness in some circumstances: see, for example, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 ('Hot Holdings') at 448 [22] (Gleeson CJ) and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 ('SZFDE') at 206 [49]. In the latter case, a fraud "on" the Tribunal of a supposed migration agent led the High Court to hold that there had been a constructive failure to exercise jurisdiction.
40 In SZFDE, the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) held that a decision of the Tribunal to refuse the appellant a protection visa was vitiated by a constructive failure to exercise jurisdiction, despite the Tribunal itself being "blameless" for the error: see SZFDE at 193 [5] and 195 [14]. In that case, fraudulent conduct on the part of a third party, falsely claiming to be entitled to practise as a solicitor and a migration agent, led to the visa applicants not attending the Tribunal hearing and, in consequence, the rejection of their application. The Court held that the fraud of the third party "had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants": SZFDE at 206 [49]. As the Court said, the fraud critically undermined a core function of the Tribunal as contemplated by the statutory regime established by the Migration Act. Their Honours explained (at 206 [51]-[52]):
No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.
The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. …
41 Furthermore, a failure to provide a document to the Tribunal may, depending on the circumstances, result in a failure to accord procedural fairness to a visa applicant. Muin v Refugee Review Tribunal & Ors and Lie v Refugee Review Tribunal & Ors, both reported in (2002) 190 ALR 601 ('Muin and Lie'), are illustrative of this proposition. In Muin and Lie documents relevant to the applications of Mr Muin and Ms Lie for a protection visa were not provided to the Tribunal. In the specific context of their cases, a majority of the High Court held that the Tribunal's decisions were affected by jurisdictional error.
42 Relevantly, for present purposes, in Mr Muin's case, the Tribunal had informed him that it had asked the Secretary of the Department of Immigration and Multicultural Affairs "to send a copy its documents" (i.e., those before the original decision-maker when the original decision was made) and stated that it would "look at" all these documents when it received them. The Tribunal later confirmed that it had "looked at all the material relating to [his] application": see Muin and Lie at 617 [59] (Gaudron J). Part B of his original application (which listed 31 items of evidence) had not, however, been provided by the Secretary to the Tribunal. Mr Muin's hearing before the Tribunal proceeded on his mistaken belief that the Tribunal had received Part B of his application. Critically, the parties agreed that "if [Mr Muin] known otherwise, he would have taken steps to correct that situation": see Muin and Lie at 617 [59] (Gaudron J). In separate judgments, Gaudron, Gummow, Kirby, Hayne and Callinan JJ held that the Tribunal had denied Mr Muin procedural fairness because he was not "given an opportunity to place before the tribunal the material and submissions which, on the agreed facts, it is accepted that he … would have submitted if not mistaken about what was before the tribunal": Muin and Lie at 660 [257] (Hayne J). In similar, though not identical circumstances, Gaudron, Gummow, Kirby and Hayne JJ also held that there was a failure to accord procedural fairness to Ms Lie.
43 Neither SZFDE nor Muin and Lie can assist the appellant in this case to show jurisdictional error or a constructive failure to exercise jurisdiction. In Muin and Lie, it was critical that "each plaintiff was led to believe, by what the tribunal had said, that it had material relevant to [the claim] which it did not": see Muin and Lie at 660 [256] (Hayne J). The present case is not one in which the Tribunal in some way misled the appellant about its possession of a psychological report concerning him. On the contrary, in the present case, at the appellant's request, the Tribunal afforded the appellant an opportunity to provide a psychologist's report to it, but such a report was not ultimately given to it. Further, this case falls well outside the circumstances under consideration in Hot Holdings and the authorities to which Gleeson CJ referred in making his remark in that case that "[p]rocedural unfairness can occur without any personal fault on the part of the decision-maker": see Hot Holdings at 448 [22].
44 In this case, too, there is no evidence that there has been anything approaching a fraud "on" the Tribunal in the SZFDE sense. As the Court itself indicated in SZFDE, the situation in that case was unusual. Thus, the Court said (at 207 [53]):
The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligence advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
(Emphasis added)
45 The evidence that the appellant has placed before the Court does not show that the appellant's migration agent ever had in his possession a psychological report about the appellant, let alone that the agent failed, for some reason, to make it available to the Tribunal.
46 At the hearing of the appeal, the appellant sought to have the Court accept a different report of a psychologist, who had given his assessment pro bono at the request of the Asylum Seeker Resource Centre, in support of his appeal to this Court. I declined to accept that report, amongst other reasons, because, on its face, it could have no bearing on the outcome of this appeal. The report, which was dated 7 March 2013, had evidently been written following an assessment made after the appellant had received the judgment of the Federal Magistrates Court. The report was neither in evidence before the Tribunal nor before the Federal Magistrate; and, having regard to this, there was no basis on which it could be said to be relevant to any issue arising in this Court on appeal.
47 As earlier indicated, however, also at the hearing of the appeal, the appellant asserted that there had been an earlier psychological report, which he believed his representative had failed to provide to "the Immigration or RRT"; and, in consequence, the Court gave him leave to adduce evidence of this assertion and belief.
48 The appellant filed an affidavit affirmed on 24 April 2013, in which he said that:
1. I … received my first report on 6th Jan 2012 and gave it to my legal representative [at] that time for Refugee Review Tribunal.
2. I have obtained copy of that first report by my psychologist at that time 6th Jan 2012 by EDWIN KLEYNHANS for RRT.
49 A copy of a letter dated 6 January 2012 and a report written by Mr Kleynhans, psychologist, was annexed to the appellant's affidavit. The letter relevantly read as follows:
[The appellant] referred himself to me for the first time on 20 December 2011 as he feared persecution should he return to Pakistan where he is originally from. … I understand that that he applied for a Protection Visa … and needed a psychological report as evidence in relation to his mental state.
…
The attached confidential report outlines the findings of psychological tests.
50 At its outset, the accompanying report stated that "[m]ost of the information in this report is based on the 2-hour clinical interview I had with [the appellant] on 20/12/2011 as well as the 1 hour consultation on 4/1/2012". At the end of the report, the report reiterated "[t]he major part of this report is based on the clinical interviews I had with [the appellant]", although it went on to state:
However, I also had access to the following documents:
● Notification of Decision from The RRT;
● Acknowledgment of a Valid Application for a Protection Visa from DIAC;
● Invitation to appear at The RRT.
(Emphasis added)
51 Notwithstanding the Court's invitation to do so, the appellant provided no material that showed that he or anyone else had given a copy of this or any other report to his representative at the time of the Tribunal hearing on 10 January 2012, or at any time prior to the Tribunal's decision on 22 March 2012. There is nothing in the Tribunal reasons that indicates that either the appellant's representative or the Tribunal had such a report. The Tribunal's reasons make no reference to any discussion of the existence of a psychologist's report at the hearing or subsequently. Instead, the first mention of a psychologist's report in the Tribunal's reasons is in connection with the email that the Tribunal said it received from the appellant's representative on 6 February 2012 seeking three further weeks in which to "provide a psychologist's report in relation to [the appellant's] mental health": see [36] above. As already stated, the Tribunal went on to note that, as at the date of its decision, it had received no such report.
52 A copy of an email apparently sent on 6 February 2012 by the appellant's then representative (included in the material before the Federal Magistrate and therefore before this Court) stated, unequivocally, that the appellant was "waiting for a report from his Psychologist". This email relevantly read:
In addition to the above the application requests additional time to provide a report regarding his mental health. He advises that he is waiting for a report from his Psychologist.
To reiterate I request that the Tribunal to grant an extension of time for my client to provide the additional information indicated above. My client advise [sic] that he will need at least another three weeks.
(Emphasis added)
The Tribunal's account is substantially confirmed by this email. If the appellant in fact received and gave the psychologist's report to the appellant's representative on 6 January 2012 or thereabouts, this report should have been in the representative's possession at the time of the Tribunal hearing on 10 January 2012. In any event, even if it was not, the representative's statement that he would "need at least another three weeks" to provide a report makes little sense if in fact he or the appellant already had the report.
53 In these circumstances, it would appear more likely than not that the appellant's representative did not have a psychologist's report when he emailed the Tribunal in early February 2012. It is, however, unnecessary to rule on this, because the critical fact is that the appellant has not established any basis for his belief that his representative had the psychologist's report in his possession and, for some reason, failed to make it available to the Tribunal before it made its decision.
54 At this point, I note too that there is at least one other peculiarity about the material that the appellant has filed in the Court. This centres on the statement in the report (at p 7) that the psychologist also had "access to … Notification of Decision from the RRT". A letter from the Tribunal headed "Notification of Decision …" was not sent to the appellant until 23 March 2012, the Tribunal's decision being dated 22 March 2012. These dates fall over two months after 6 January 2012, which is the date on Mr Kleynhans' report.
55 Since there is nothing in the material to justify the view that the appellant's failure to provide the Tribunal with a psychologist's report was the fault of his representative, it is unnecessary to make any other findings about the evidence that the appellant has placed before the Court. There is no need to determine when a psychological assessment of the appellant was made or when any consequential report was produced and made available to the appellant.
56 So far as the appellant is concerned, it can at best be said that a psychologist's report was not delivered to the Tribunal, though one was foreshadowed, and the explanation for its non-delivery is unknown. As has been said many times in this Court and elsewhere, the Court has no general jurisdiction to intervene to remedy the consequences of a party's mistake, whether due to incompetence or negligence. Having allowed the appellant leave to produce some evidence of the allegation that he made at the hearing concerning his former migration agent's failure to provide the Tribunal with a psychological report, I am unable to discern any basis for attributing a constructive failure to exercise jurisdiction or jurisdictional error to the Tribunal's decision. It is unnecessary to discuss this claim further.