Minister for Immigration and Multicultural and Indigenous Affairs v Sglb

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne JJ.,Kirby J,Callinan J
• Judgment Date: 17 June 2004
• Neutral Citation: 2004-0617 HCA A,[2004] HCA 32
• Court: High Court
• Docket Number: A256/2003
• Date: 17 June 2004

[2004] HCA 32

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne AND Callinan JJ

A256/2003

Minister for Immigration and Multicultural and Indigenous Affairs

Appellant

and

Sglb

Respondent

Representation:

S J Gageler SC with S B Lloyd for the appellant (instructed by Sparke Helmore)

S Walsh QC with S C Churches for the respondent (instructed by Refugee Advocacy Service of South Australia)

Migration Act 1958 (Cth), ss 65, 415, 474, 496.

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

Immigration — Refugees — Procedural fairness — Refugee Review Tribunal — Jurisdictional error — Expert medical advice — Psychological state of applicant assumed to be possible explanation for unsatisfactory evidence — Whether denial of procedural fairness by failing to order further psychological assessment of applicant — Whether denial of procedural fairness by accepting that applicant suffered stress disorder — Whether denial of procedural fairness by acceptance of effects of disorder on applicant without expert medical advice.

Statutes — Construction — Privative clause — Whether putative errors of the Refugee Review Tribunal fell within the operation of s 474 of the Migration Act 1958 (Cth).

ORDER

• 1. Appeal allowed.

• 2. Orders of the Federal Court of Australia made on 11 March 2003, to the extent that they relate to the appeal to that Court from the orders of the Federal Magistrates Court made on 20 December 2002, set aside (save that as to costs). In place thereof, order that the appeal to that Court against the orders of the Federal Magistrates Court is dismissed.

• 3. Appellant to pay the respondent's costs in this Court.

1 Gleeson CJ. For the reasons given by Gummow and Hayne JJ, I agree that the grounds upon which Selway J, in the Federal Court, decided this case against the appellant cannot be sustained. I also agree with what their Honours have said about the procedural aspects of the matter, and with their rejection of an alternative submission made on behalf of the appellant concerning s 474 of the Migration Act 1958 (Cth) in the event that the findings by Selway J of error on the part of the Refugee Review Tribunal were upheld.

2 In this Court, the respondent relied upon a Notice of Contention, submitting that the decision of the Federal Court should be affirmed but on a ground other than those relied on by Selway J. The ground was expressed as follows:

‘The Tribunal denied procedural fairness, amounting to jurisdictional error, in refusing the then applicant's request that a psychiatric report be obtained.’

3 I agree with what has been said by Gummow and Hayne JJ, and Callinan J, about the matter of procedural fairness, but I wish to add some comments related to the facts of the case.

4 In considering whether the Tribunal's refusal of the respondent's request that a further report be obtained involved a denial of procedural fairness, it is important to keep in mind the exact nature of the request, and the context in which it was made.

5 The proceedings before the Tribunal were the respondent's proceedings, seeking review of an adverse decision by a delegate of the appellant. In the proceedings before the Tribunal, the respondent was represented by a migration agent, and was also being advised by a barrister. Although, at one stage, a request was made for the hearing before the Tribunal to be postponed, it was subsequently indicated by the respondent's advisers that he was ready to proceed.

6 In her reasons for decision, the Tribunal Member recorded the following:

‘On 20 June 2002 the Tribunal as presently constituted held a “pre-hearing conference” with [the respondent]. This was necessary because [the respondent] had asked the Tribunal to postpone his hearing indefinitely because of his mental state. The Tribunal understood that he had “self-harmed” on several occasions and wished to discuss with him whether he wanted to give oral evidence and if so, when he might feel able to do so. On the day of the pre-hearing conference [the respondent] expressed a wish to give oral evidence as soon as possible, and it was agreed with him that the hearing would take place on 26 June 2002 … With the agreement of the Department, the Tribunal also arranged for an assessment of [the respondent's] psychological condition to be undertaken by a psychologist at the detention centre at Woomera. [The respondent] had no objection to doing this. The purpose of the assessment was to enable the Tribunal to take into account any memory or other difficulties which might be experienced by [the respondent] during the forthcoming hearing.’

7 Thus, before the hearing of 26 June 2002, the Tribunal had dealt with the matter of a postponement in accordance with the respondent's wishes, and had also, on its own initiative, and with the respondent's agreement, arranged to have him assessed by a psychologist. No complaint is made about any aspect of what the Tribunal did up to, or at, the hearing.

8 The hearing of 26 June 2002 was conducted by videolink. Present, as well as the respondent, were the respondent's migration agent and the barrister. It was not suggested, during the hearing of 26 June 2002, that the matter should not proceed to finality.

9 The correspondence following the hearing of 26 June 2002 is referred to in the reasons of Callinan J. Of particular importance to the Notice of Contention is the migration agent's letter of 30 July 2002, which contained the request referred to in the Notice of Contention.

10 The letter was written as a response to the Tribunal's letter of 27 June 2002, which set out, for comment, certain matters that the Tribunal regarded as potentially adverse to the respondent's case. Once again, to that stage the Tribunal conducted itself with scrupulous fairness. The letter of 30 July 2002 was some 13 pages in length. It was accompanied by an affidavit of the respondent dealing with the substance of his case. In the Tribunal's letter of 27 June, the following had been said:

‘The Tribunal has now received an assessment of [the respondent's] general state of mind … The Tribunal could infer from it that the inconsistencies in [the respondent's] account do not arise from blurred or confused recall.’

It was in response to that observation that the presently relevant parts of the letter of 30 July 2002 were written.

11 The letter of 30 July 2002 said:

‘We are not attempting to impugn the Woomera camp psychologist's ability, but contend that a further, more independent and expert assessment be undertaken to determine [the respondent's] state of mind and whether there can be justified links to his past claims of trauma and persecution. In other words, an expert assessment to determine the source of such behaviour and whether it stems from serious Post Traumatic Stress Disorder (PTSD). We consider that the Tribunal has a duty to ask the question about [the respondent's] anger and the source of that anger.’

12 That is the request referred to in the Notice of Contention.

13 In elaborating that request, the letter of 30 July 2002 advanced two reasons for seeking an ‘expert assessment’. Those reasons were not clearly separated, but they were both apparent to the Tribunal Member. One reason concerned the problem of inconsistency in information given at various times by the respondent. It arose out of the warning in the letter of 27 June 2002 that the Tribunal could infer that such inconsistencies were not the result of ‘blurred or confused recall’. It was to that warning that the letter of 30 July was responding. Another, and different, reason involved the suggestion that an expert might provide opinion evidence directly relevant to the substance of the respondent's claims that he had suffered persecution. The letter suggested that the expert whom the Tribunal was being invited to consult might express the opinion that the respondent's psychological problems were of a kind that demonstrated that he had suffered harm in the past, and that this could support his claim that he was a victim of persecution. The letter said:

‘We submit that it could be possible that our client's anger is a symptom of deeper trauma, which only an expert opinion could determine.’

14 This second aspect of the proposal contained in the letter of 30 July 2002 was, no doubt, what the Tribunal Member had in mind when, in giving her reasons for refusing the request for a further psychological assessment, she said:

‘As to whether [the respondent's] current condition is a consequence of Convention-related events in Iran, (rather than during his period of over two years in detention in Australia, for example), it is for the Tribunal to make findings on the events which [the respondent] claims led to his decision to leave Iran.’

She also said, in relation to the evaluation of the respondent's evidence, that she was prepared to accept that he was suffering from PTSD, and in those circumstances would not draw the adverse conclusion foreshadowed in her letter of 27 June. She said that she proposed to accept that the respondent's ability to give evidence clearly was almost certainly influenced by PTSD.

15 Senior counsel for the respondent, in this Court, expressly, and correctly, disclaimed any suggestion that there was a denial of procedural fairness in failing to give the respondent an opportunity to add to the substantive evidence in support of his claim by obtaining an opinion from a psychologist to the effect that he had been a victim of violence. Quite apart from the dubious reliability and relevance of any such opinion, and the possibility (adverted to by the Tribunal) that the respondent had been traumatised since arrival in Australia, there was no request by the respondent's adviser for the respondent to have an opportunity to present further information to the...