Case: M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127
Outcome: discussed
The appellants appealed to a Full Court of this Court. The Full Court said, in M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127 , at [10]-[11], as follows: "In a notice of appeal filed on 1 December 2003, the appellant effectively repeated the ground raised before the primary judge. That is, it was alleged that the Tribunal fell into jurisdictional error by considering dated and not recent country information and the primary judge erred in not concluding that the Tribunal had fallen into jurisdictional error. For the reasons given by the primary judge, this contention is without substance." 6 The Full Court also discussed the appellants' additional submissions, which sought to raise the 'medically unfit' ground mentioned in the draft order nisi filed in the High Court. The Court said, at [12]-[19]: "In written submissions, the [first] appellant raised a number of additional issues. They included that she had been denied procedural fairness because she had been required to attend the hearing before the Tribunal at a time when she was medically unfit. The appellant also contended, in effect, that the Tribunal failed to take into account her mental state when assessing her evidence and, in particular, when considering the significance of her inability to name the Tamil boarders she claimed to have taken in during 1999. It is apparent from the Tribunal's reasons that the hearing was delayed for three months at the appellant's request because of a psychologist's report concerning the mental health of the appellant. That report recommended that the appellant should receive treatment for her condition in the interim. After the three months had passed, the Tribunal asked the appellant to attend a hearing on 25 May 2001 but, at the appellant's request (made on 24 May 2001) delayed that hearing until 31 May 2001. The Tribunal refused to delay the hearing for a longer period. It did so on the ground that the psychologist, although stating that the appellant still suffered from the same condition, reported that the appellant had not sought the recommended treatment. The appellant attended the delayed hearing with her legal representative. The appellant's amended application and written submissions before the primary Judge were prepared by counsel. That application and those submissions appear to have abandoned a complaint made in the draft order nisi that the appellant was denied procedural fairness (and that the Tribunal failed to follow procedures required by [the Act ] and misconceived its duty) because the hearing before the Tribunal took place when she was suffering from a mental disability. It may well be that the matter was not pursued in either the application or submissions because those advising the appellant considered a denial of procedural fairness was not a ground available under the then legislative regime. The allegation of denial of procedural fairness is not raised in the notice of appeal. However it is relatively clear the notice was prepared by the appellant without legal assistance. A full investigation of the consequences of any mental illness the appellant might have suffered at the time of the hearings before the Tribunal, would almost certainly have involved evidence being led before the primary judge. It was not."