Minister for Immigration and Multicultural and Indigenous Affairs v. SGLB

The Respondent, SGLB, was an Iranian national who arrived in Australia without a visa in June 2000. He was immediately placed in immigration detention. In his initial interview with immigration officers there was “no suggestion by him that any fear of persecution and possible incarceration by the authorities there motivated his departure from Iran” (para. 100). In October 2000 he applied for a protection visa and gave different answers to those he gave during his first interview on arrival in Australia, in relation to his reasons for travelling to Australia and the treatment he suffered in Iran. On the basis of this inconsistent information and on country information about Iran, the delegate of the Minister rejected SGLB’s application for a protection visa. SGLB appealed this decision to the Refugee Review Tribunal (the Tribunal). Prior to the commencement of the hearing before the Tribunal, the Respondent was hospitalized after a suicide attempt. Following this, the Tribunal requested a written assessment of the Respondent’s “general state of mind” from the psychologist employed by the Woomera Detention Centre where SGLB was detained. The psychologist responded that SGLB was “emotionally and physically volatile” and had engaged in self-harming behavior and attempted suicides. During the proceedings, SGLB’s representative contended that SGLB was suffering from Post Traumatic Stress Disorder (PTSD), that this could contribute to his ability to provide consistent accounts of his past, and that a further psychological report on SGLB should be obtained to explore this possibility. While the Tribunal did not agree to obtaining a further psychological assessment, it stated that it considered it highly likely that the Respondent was suffering from PTSD; that his ability to give evidence was influenced by this; and accepted the evidence provided by SGLB. However, the Tribunal affirmed the delegate’s decision and denied the Respondent a protection visa.

The Respondent then applied for judicial review of the Tribunal’s decision in the Federal Court. The Federal Court ordered that the decision of the Tribunal be quashed and held that the Tribunal had made the following jurisdictional errors (para. 32):

1. That “there was no evidence before the Tribunal upon which it could be satisfied that the respondent was suffering from Post Traumatic Stress Disorder (‘PTSD’)”
2. That the “Tribunal erred in making findings as to the credibility of the respondent where there was no evidence before it which would enable it to assess the effects of PTSD on the credibility of the respondent”.
3. “Having found that the respondent suffered from PTSD, the Tribunal failed to satisfy itself that he could take part in the proceedings”.

In the appeal to the High Court, SGLB argued that the jurisdictional errors of the Tribunal (as held by the Federal Court but not phrased as such) amounted to a failure to observe procedural fairness, particularly by refusing to obtain a further psychological assessment of SGLB in relation to alleged PTSD. The Minister argued that there was no denial of procedural fairness before the Tribunal; in the alternative, if the errors found by the Federal Court were sustained, the decision of the Tribunal was a decision that fell within the privative clause of s 474 of the Migration Act 1958 (the Act), preventing its review.

The High Court held that the Refugee Review Tribunal did not deny SGLB procedural fairness. The Court held that the Tribunal was under no obligation “to embark upon an open-ended investigation of the respondent's psychological condition” (para. 19). Furthermore, there was “abundant evidence to justify a finding by the Tribunal…[in] the respondent’s favour, that he was suffering from PTSD, that this affected his ability to give evidence, and, further, that it provided an explanation for the inconsistencies between his accounts” (para. 121). The Tribunal was not bound to make particular inquires or obtain further evidence about medical or other matters. However, even if it was, there was no evidence to suggest that the Tribunal had not made appropriate and sufficient enquiries.

It also held that the privative clause in s 474 of the Act did not apply to the decision of the Tribunal. While this question was dealt with in obiter, the Court held that the decision was flawed because a lack of procedural fairness was not a decision and therefore not subject to the privative clause. The Court applied the previous case of Plaintiff S157/2002 v. Commonwealth (2003) 211 CLR 476, which said that: “‘decision[s]...made under this Act’ must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act…[A]n administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’” (para. 29).

“Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the Tribunal, apprehending that the respondent might be disadvantaged by ‘memory or other difficulties’, of its own motion, and with the respondent's agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The Tribunal was not then obliged to embark upon an open-ended investigation of the respondent's psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage.” Para. 19.

“The conduct of the proceedings by the Tribunal reveals no failure in its observance of the requirements of procedural fairness. To the contrary, the Tribunal went to great lengths to accommodate the respondent and his concerns. The Tribunal postponed the hearing when requested to do so and promptly undertook the hearing when requested to do so. The Tribunal stopped the hearing when it became apparent that the respondent was agitated. It gave him an opportunity to comment on its concerns after the hearing. In addition, as will later appear from these reasons, there was no obligation on the Tribunal to obtain a psychiatric report. The Act indicated that the Tribunal was not required to accede to any such request by an applicant.” Para. 33.

“This should also be said about stressed witnesses. They are by no means rarely encountered in courts and tribunals. Legal and inquisitorial proceedings can be very stressful occasions even for people who have no direct interest in their outcome. That a witness or a party may be stressed will rarely of itself constitute sufficient reason to postpone a hearing. Whether a party or a witness is so stressed as to be unable to give a reasonable account of himself or herself, or whether further inquiries as to the capacity of a person to do so should be made, is pre-eminently a matter for the court or the tribunal to decide, and courts and tribunals by experience are generally well equipped to do so.” Para. 126.