Case: NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56
Outcome: applied
learned Federal Magistrate concluded that the Tribunal had met its obligations to afford a real hearing opportunity pursuant to s 425. Mr Reilly, for the Minister, very properly in the course of his submissions drew my attention to NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 (hereafter NAMJ ). In that case, at paras 42, 43 and 44, Branson J summarises the effect of earlier decisions of the Full Court in relation to the affording of a meaningful opportunity to be heard, as required by s 425 , in circumstances where an applicant before the Tribunal is not in a fit state to take part in the hearing. The case before her Honour concerned a circumstance where it was alleged that the Tribunal did know of an asserted unfitness on the part of the applicant, but nonetheless reached a conclusion that the applicant was fit to take part in the hearing. Her Honour observed, at para 68 and para 69, page 71: I accept the submission of the respondent that in making a judgment as to the fitness of the applicant to take part in the hearing before the tribunal, I should accord weight to the view taken by the tribunal. The tribunal was satisfied that the applicant knew the purpose of the hearing, and had been able to give a comprehensive and lucid account of his claims. I do not consider that this assessment is rendered improbable by the conclusions that I've reached above based on the expert evidence placed before me. It seems to me that by analogy with a claim of procedural unfairness the applicant must bear the onus of establishing that he was unfit to take part in the tribunal hearing. Her Honour then refers to authority. Having regard, particularly to the assessment of the applicant made by the tribunal member, I'm not satisfied that at the time of the tribunal hearing the applicant lacked the capacity to understand the concerns relating to his claim to be entitled to a protection visa that the tribunal raised with him, including the tribunal's concern as to his credibility. Nor am I satisfied that he lacked the capacity to understand and respond to the questions put to him by the tribunal. Further, I am not satisfied that the applicant lacked the capacity to give an account of his experiences in Bangladesh, or the capacity to present arguments in support of his claim to be entitled to a protection visa. In this case the Appellants introduced no evidence, lay or professional, before the Tribunal in relation to the supposed, or the asserted, incapacity of the male Appellant. There was an assertion apparently on the part of the female Appellant, but this does not seem to have been developed in any detailed way in evidence before the Tribunal. The same applies in respect of the proceedings before the Federal Magistrates Court, and, for that matter, before this Court. Upon the appeal being called on, the male Appellant indicated that he wished the submissions in respect of the appeal to be made by the female Appellant. In NAMJ there was evidence received from a clinical social worker and a general practitioner. There is no such evidence at any stage of this case. In many cases, where a claim of an absence of compliance with s 425 on the part of the Tribunal is advanced, the introduction of medical evidence concerning capacity at the time of the hearing would be necessary. It is certainly possible, though, to conceive of cases where lay evidence may provide a satisfactory foundation for a conclusion as to an absence of capacity on the part of a visa applicant. The difficulty here is that there was just no evidence at all. The Tribunal made its own observation, which is recorded in the passage from which I have quoted. Against this background, and having regard to the court's decision in NAMJ , there is no error in the Federal Magistrate's conclusion that there was no violation of s 425. That, in one way or another, is the nature of the challenge which the Appellants advance. In my opinion, that challenge cannot, for the reasons given, succeed. The appeal is therefore dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 25 February 2009 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr T Reilly Solicitor for the Appellant: DLA Phillips Fox Date of Hearing: 17 February 2009 Date of Judgment: 17 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/147.html