SZMSF v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Appellant is a citizen of Nepal. 2 He arrived in Australia on 19 November 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 28 December 2007. A delegate refused to grant the visa on 18 March 2008. 3 An application for review by the Refugee Review Tribunal was sought on 15 April 2008. The now Appellant appeared before the Tribunal on 5 June 2008. He gave evidence on that occasion with the assistance of an interpreter. The Tribunal affirmed the decision not to grant the visa by way of a decision dated 17 July 2008. 4 An Application seeking review was then filed with the Federal Magistrates Court of Australia on 4 September 2008. An Amended Application was filed in that Court on 1 September 2009. In summary form, it was claimed that the now Appellant had been denied a fair opportunity to present his case before the Tribunal by reason of his psychiatric and mental condition and also by reason of the medication he was then taking. At the hearing before the Court on 1 September 2009, evidence was given by (inter alia) a psychiatrist, Dr Chaudhary, called on behalf of the now Appellant and a consultant forensic psychiatrist, Dr Richard Furst, called by the Respondent Minister. 5 On 27 January 2010 the Federal Magistrate dismissed the Amended Application: SZMSF v Minister for Immigration and Citizenship [2010] FMCA 22. In doing so, the Federal Magistrate preferred the evidence of Dr Furst to that of Dr Chaudhary and was "satisfied that there is no evidence sufficient to establish that the Applicant was so affected by a medical condition or by the effects of prescribed medication that he was unable to participate effectively and appropriately in the hearing before the Refugee Review Tribunal. There is no denial of the right to a fair hearing under s.425 of the Act": [2010] FMCA 22 at [75]. 6 On 29 March 2010, in a separate judgment, the Federal Magistrate ordered that the now Appellant was to pay the Respondent Minister's costs in the sum of $24,459.54: SZMSF v Minister for Immigration and Citizenship [2010] FMCA 221. 7 On 10 February 2010 a Notice of Appeal was filed in this Court appealing from the decision of the Federal Magistrate given on 27 January 2010. The Grounds of Appeal are there stated as follows: GROUNDS OF APPEAL: 1. His Honour erred by not finding that the Second Respondent made jurisdictional error by reason that the appellant was denied a fair opportunity to present his case because of impairment arising from the appellant's psychiatric and mental condition and as a result of medication being taken by the appellant. 2. His Honour erred by not finding that the Second Respondent made jurisdictional error by making a finding that the appellant's quality of the oral evidence did not have anything to do with medication he was taking when there was no evidence to justify the making of that finding. 3. His Honour erred in failing to find that the Second Respondent made jurisdictional error by failing to consider whether the appellant's oral evidence had been affected by the depression and stress from which the Second Respondent accepted that he suffered. 4. His Honour erred in not finding that the Second Respondent made jurisdictional error by acting in breach of the Second Respondent's obligations under section 425(1) of the Migration Act. 5. His Honour erred in failing to find that the Second Respondent made jurisdictional error by reason of its assessment of the applicant's evidence given at the hearing as if he were a person without impairment. 6. His Honour erred by not finding that the Second Respondent made jurisdictional error by failing to investigate the effect of the appellant's depression and stress and/or the effect of his medications upon his capacity to give evidence and to present arguments. 8 The Appellant appeared unrepresented before this Court on 28 May 2010. He was accompanied by an interpreter. Further written submissions were filed on behalf of the Respondent Minister on 4 June 2010. An opportunity was extended to the Appellant to himself provide a written note as to anything further he wished to advance for consideration. But no such note was received in this Court. 9 The appeal is to be dismissed.

Section 425 10 The statutory provision of central importance is s 425 of the Migration Act 1958 (Cth) ("Migration Act"). That section provides as follows: Tribunal must invite applicant to appear (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. A further provision which should at least be noted is s 414, which provides as follows: Refugee Review Tribunal must review decisions (1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3). 11 The opportunity to "to appear … to give evidence and present arguments", it may presently be accepted, must be a meaningful opportunity. One circumstance which may prevent the opportunity being meaningful may arise where a visa claimant is suffering from a physical or mental condition which effectively denies him the opportunity to either present the evidence he wishes to rely upon or to present argument. 12 And it may further be accepted that circumstances may arise where an opportunity is rendered less than meaningful because a visa claimant does not raise his debilitating condition before the Tribunal and where the Tribunal may therefore be unaware of the condition. But the opportunity guaranteed by s 425, it has been said, imposes an "objective requirement" and it matters not whether the Tribunal was aware of a party's condition: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, 128 FCR 553 ("SCAR"). In those proceedings, and unknown to the Tribunal, the claimant was not in a fit state to take part in the proceeding. Jurisdictional error was established. Gray, Cooper and Selway JJ there observed: [33] Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 at [31]. … [37] … it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a "real and meaningful" invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. … [38] It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a "jurisdictional error". Their Honours concluded: [41] Given the findings of fact made by the primary judge that the respondent was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s 425 of the Act was not a meaningful one. Through no fault of the Tribunal it was not aware of this. Even so, the Tribunal did not comply with s 425 of the Act. It did not extend a meaningful invitation to the respondent. The respondent did not receive the fair hearing required by the Act. Consequently the Tribunal made a "jurisdictional error." See also: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 at [5], 172 FCR 1 at 4 per Gray J. 13 Notwithstanding the apparent simplicity of the terms of s 425(1), and the decision of the Full Court in SCAR, there continues to be "debate within this court as to whether SCAR was correctly decided": SZLLY v Minister for Immigration and Citizenship [2009] FCA 185 at [19] to [21], 107 ALD 352 at 357. 14 The terms of s 425(1), it may be noted, simply impose an obligation upon the Tribunal to"invite the applicant to appear"; the subsection says nothing expressly about the nature of any subsequent opportunity "to give evidence and present arguments …". The necessity, however, to provide some kind of hearing is said by some to be nevertheless implicit: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142, 154 FCR 365. Graham J there observed: [211] It is implicit from the terms of s 425(1) that not only must an appropriate invitation be extended but also it should be followed by a corresponding hearing at which the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review will be afforded to the applicant, subject to the provisions of s 425(3). His Honour, however, went on to further observe:

[212] Insofar as the Full Court in SCAR may have found that s 425(1) required more of an invitation to appear before the Tribunal than compliance with the terms of the Act, it was, in my opinion plainly wrong and should not be followed. The statute does not impose any additional obligation requiring an invitation to be "real and meaningful" or, simply, "meaningful".

His Honour reviewed some of the authorities and, in respect to the actual content of what s 425(1) imposed, concluded as follows: [223] … the sufficiency of an invitation under s 425(1) should be capable of being addressed the moment that the invitation has been given. In this case that would mean, as soon as it had been posted. The provision by the Tribunal at the corresponding hearing of an inadequate interpreter is another matter altogether. Given the debate it is not surprising that, in SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789 at [23], Middleton J also said that the decision in SCAR "has not met with universal approval". 15 The decision in SCAR, however,has recently been considered by the Full Court in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 ("SZNVW") - but the decision in SCAR was there sought to be distinguished, rather than overruled. "[N]either side sought to argue that SCAR was wrongly decided": [2010] FCAFC 41 at [31]. 16 For present purposes, any "debate" need not be further considered. And any effect of s 422B(3), a provision inserted by way of amendment after the decision of the Full Court in SCAR, need not now be resolved. Nor could it be by a single Judge. 17 Notwithstanding any uncertainty as to the extent of the obligation imposed by s 425(1), the onus nevertheless remains upon a claimant to establish that he is unfit to participate in the hearing following the giving of the "invitation" guaranteed by s 425: NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983at [69], 76 ALD 56 at 71 per Branson J. As noted by Her Honour, difficult questions may arise as to what is actually embraced by a finding as to "fitness". The conclusion reached was expressed as follows: [58] I do not consider it wise to attempt to formulate an exhaustive test of "fitness" to take part in a tribunal hearing. It seems likely that no single standard of fitness will be appropriate for all cases. Fitness in the relevant sense will, in my view, require to be assessed having regard to the particular circumstances of each case including the intended purpose of the hearing before the tribunal and the support and assistance available to the applicant. Difficult questions may also arise where a claimant may nevertheless be "fit" to participate in a hearing before the Tribunal but where his physical and emotional condition is nevertheless a matter to be taken into account by the Tribunal, particularly when assessing credibility: e.g., WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106, 204 ALR 624 per French J. 18 Where a claimant is "unfit" to participate effectively in a hearing before the Tribunal, it may be that the Tribunal should adjourn or postpone the hearing until a later date: Applicant S 296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166. But, as Gyles J there noted, "[t]here 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 the applicant": [2006] FCA 1166 at [6]. His Honour was not there called upon to illustrate the "circumstances" which could lead to such a conclusion. 19 A failure on the part of a Tribunal to give a claimant "a reasonable opportunity to present evidence and argument" has, in the past, had the consequence that the Tribunal "did not reach a decision after considering evidence and argument" and the further consequence that "the Tribunal did not conduct a review as required by the Act". In this instance, the decision was held "not [to be] a 'decision on review' for the purposes of … the Act": Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [43], 209 CLR 597 at 612 per Gaudron and Gummow JJ. 20 Whatever may be the extent to which SCAR is authority for any proposition extending beyond the "invitation" to which s 425 refers being a "meaningful" invitation, and extending also to the nature of any hearing before the Tribunal, s 425 does not require a Tribunal to press a claimant to call evidence as to whatever "psychological problems" he may seek to rely upon: SZNVW (supra). Keane CJ there concluded: [20] In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this court's decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20]-[25], the contention that an applicant's psychological difficulties were such as to deprive him of the "meaningful opportunity" required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant's condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him. The Chief Justice thereafter referred to ss 414, 420, 422B and 424 of the Migration Act 1958 (Cth) and continued: [22] None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light. His Honour summarised the views expressed in other cases as follows: [35] In summary to this point, there is nothing in the text of s 425, or in the statutory context in which it appears, or in the authoritative judicial exegesis of s 425, to suggest that it was the intention of the legislature that the Tribunal should take upon itself the role of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant's best advantage. Emmett J expressed agreement with the reasons of the Chief Justice: [2010] FCAFC 41 at [49]. 21 But before any conclusion can be reached that a claimant has been deprived of any opportunity guaranteed by s 425, there must necessarily be a factual basis advanced by the claimant or on his behalf as to the condition sought to be relied upon. In the absence of such evidence, the claim will fail: e.g., SZKPB v Minister for Immigration and Citizenship [2009] FCA 147. See also: SZMSA v Minister for Immigration and Citizenship [2010] FCA 345.

The Difficulties Confronting the Appellant 22 At least two fundamental difficulties confront the Appellant in the present proceeding. 23 First, the conclusion of the Federal Magistrate as to the "medical condition" suffered by the present Appellant was a conclusion as to a matter of fact. The conclusion that the evidence of one medical specialist was to be preferred to another was a conclusion based upon the evidence provided. That conclusion was one clearly open to be made. Having preferred the evidence of Dr Furst, the further conclusion reached that the Appellant was not so affected by any medical or other condition or by medication "that he was unable to participate effectively and appropriately in the hearing" was probably inevitable. Given that finding, no conclusion was thereafter open that the now Appellant had been denied a meaningful opportunity "to give evidence and present arguments" as referred to in s 425. Whatever difficulties were experienced by the Appellant when he appeared before the Tribunal, those difficulties did not deprive him of that opportunity. 24 The right of appeal conferred on this Court by s 24 of the Federal Court of Australia Act 1976 (Cth), however, is an appeal in the nature of a re-hearing: Knight v Beyond Properties Pty Ltd [2007] FCAFC 170 at [20] per French, Tamberlin and Rares JJ. This Court can receive further evidence on appeal (s 27) - but the right of appeal exists for the purpose of the correction of some legal, factual or discretionary error. In Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131, 220 ALR 211 at 220 to 221 Branson, Nicholson and Jacobson JJ referred to earlier authorities and summarised the role of the Court in matters on appeal as follows: [45] Importantly both Branir and S & I Publishing recognise that an appeal by way of rehearing is not simply a rehearing of, or second go at, the trial. The appellate court does not consider the matter de novo but, exceptional cases aside, sits to correct error made at first instance. Evidence additional to that adduced in the court below is not ordinarily received: O 52 r 36 of the Federal Court Rules. An appellant is ordinarily precluded from raising on appeal a point not argued at first instance: … An appellant is required to specify the grounds on which the appeal is brought. [46] The proper approach in the context of a case concerning an alleged contravention of s 52 of the TPA can, in our view, be restated in the following way. Where the determination of whether particular conduct was misleading or deceptive is not straight forward, but rather involves elements of degree, opinion or judgment, a simple preference in the appellate court for a view different from that taken by the trial judge may not carry with it the conclusion of error. The appeal court might conclude either that there could not be said to be only one possible correct determination or that the trial judge had a particular advantage, not shared by the appellate court, in assessing critical matters of nuance and judgment. In such a case, in determining whether or not the trial judge fell into appealable error, the appeal court should not proceed as though on a hearing de novo in which the views of the trial judge carry no weight. Rather the appeal court must give appropriate weight to the views of the trial judge and set aside his or her finding only if persuaded that the finding is wrong. However, if an appellate court is persuaded that particular conduct, found by the trial judge to be misleading or deceptive, was not in fact misleading or deceptive, it thereby identifies error in the decision of the primary judge. Similarly where an appellate court is persuaded that conduct which the trial judge did not consider misleading or deceptive is in fact misleading or deceptive. [citations omitted] An appeal from a decision of a Federal Magistrate is in no different position: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [3] per Graham J; Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 at [4], 50 ATR 429 at 431 per Kenny J; George v Deputy Commissioner of Taxation [2004] FCA 1433 at [11] to [12], 212 ALR 495 at 497 per Stone J. An appellant must establish some legal, factual or discretionary error: Mineo v Etna [2009] FCA 337 at [7] to [8], 176 FCR 74 at 76 per Gordon J. 25 No appellable error is discernible in the reasons for decision of the Federal Magistrate whose decision is now under appeal. 26 Second, even if the Court were otherwise inclined to test afresh the finding of fact as made by the Federal Magistrate as against the transcript of the hearing before the Tribunal, there is nothing in that transcript which suggests any reason to question the ability of the now Appellant to participate meaningfully in the hearing. Questions were asked and answered. At the outset of the hearing the now Appellant advised the Tribunal that he was "taking medication" and that he could not remember some things. Details of the medication were provided and a statement made that "it makes you go to sleep, it makes you think less". The Tribunal was clearly conscious of the difficulty sought to be relied upon. It proceeded to make its findings of fact, being findings open to it on the evidence. 27 Dr Furst, it may be noted, reviewed the transcript and stated in evidence at the hearing in the Federal Magistrates Court that he did not think it was likely that the now Appellant's answers given at the Tribunal hearing were affected or impaired by reason of his medical condition or the dosage of his prescribed medications. Dr Chaudhary was not provided with a copy of the transcript and only stated in a letter dated 3 April 2009 to the Appellant's solicitors and migration agents that there was "a probability" that the diagnosed condition and medication could have a sedative effect on the now Appellant's mind which could have affected his concentration. Indeed, given that Dr Chaudhary did not see the now Appellant until nine months after the Tribunal hearing, it would have been surprising had Dr Chaudhary expressed any other opinion. 28 Having reviewed the opinions of Drs Chaudhary and Furst, the cross-examination of those doctors that took place before the Federal Magistrate and the transcript of the evidence before the Tribunal, there is no reason to question the conclusion reached by the Federal Magistrate. It was clearly correct. 29 Nor is it respectfully considered that any other jurisdictional error is discernible in the decision of the Tribunal. 30 No matter how the Grounds of Appeal may be construed, no appellable error is discernible in the decision of the Federal Magistrate. The Appellant was not affected by any medical or other condition which denied him an opportunity to present his evidence and his arguments. And there was no obligation imposed upon the Tribunal to itself seek further evidence in respect to his condition. The Tribunal, it is considered, properly undertook the "review" of the delegate's decision as required by s 414 of the Migration Act.

Conclusions 31 The Appellant failed to establish that he was "unfit" to participate effectively in the hearing before the Tribunal on 5 June 2008. That was the finding as made by the Federal Magistrate and there is no reason to question that finding. 32 The fact that a party to an administrative hearing may be suffering from some mental illness or taking medication that affects his ability to adduce evidence or advance arguments will not in all cases deprive him of a meaningful opportunity to participate in a hearing process. When a disability becomes so severe that it denies a party an opportunity to be heard - or to be effectively heard in a meaningful manner - then it may well mean that difficult factual judgments need to be made. It may be possible to do no more than recognise that each case may well depend upon its own facts and circumstances - those circumstances including the nature of the disability and the complexity of the factual or legal issues to be addressed. Cases may arise where any difficulty may be avoided by simply adjourning a hearing in a manner consistent with the expeditious and just resolution of the claims being made. There remains, however, no obligation imposed upon the Tribunal "of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant's best advantage". 33 Whatever difficulties may await future cases, the present appeal involves no such difficulties. 34 An order is sought pursuant to O 62 r 4(2)(c) of the Federal Court Rules that costs be fixed in the gross sum of $5,850. An Affidavit was filed on 4 June 2010 in support of this amount. Such an order should be made.

ORDERS 35 The Orders of the Court are: 1. The Notice of Appeal as filed on 10 February 2010 is dismissed. 2. The Appellant is to pay the costs of the First Respondent fixed in the sum of $5,850.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.