Does a failure of the Tribunal to make accommodations for a cognitively impaired applicant recommended by a neuropsychologist amount to a denial of procedural fairness?
Brief summary
In this case, the Minister refused to grant the applicant a Temporary Protection visa under s 501(1) of the Migration Act 1958. The applicant applied to the Administrative Appeals Tribunal (AAT) for review of that decision. Prior to the completion of the final hearing, the applicant was assessed by a clinical neuropsychologist who reported that the applicant experienced cognitive impairments which would limit his ability to participate in the hearing and recommended specific accommodations that would minimise the difficulties experienced by the applicant.
The AAT gave directions that the Minister comply with the neuropsychologist’s recommendations and that the Minister provide advance notice of topics of cross examination (including page numbers of material the Minister intended to take the applicant to). The Minister provided advance notice on the morning of the resumed hearing and did not comply with the recommendations of the neuropsychologist.
Following hearing, the AAT affirmed the refusal of the applicant’s Temporary Protection visa under s 501(1) of the Act. The Federal Court of Australia found that the AAT’s failure to ensure compliance with the neuropsychologist’s recommendations amounted to a denial of procedural fairness and, therefore, jurisdictional error. The AAT’s decision was set aside and the matter remitted to the Tribunal.
Background
The Appellant was a non-citizen with a lengthy history of migration litigation following his initial arrival in Australia as an ‘illegal maritime arrival’ in 2012. In December 2018 a delegate of the Minister refused the applicant’s application for a protection visa. That decision was subsequently affirmed by a differently constituted Tribunal in March 2019. However, by decision dated 20 September 2021, the Full Court of the Federal Court of Australia made orders quashing the Tribunal’s decision and remitted the application to the Tribunal.
The re-hearing of the application commenced in May 2022, but was adjourned in the middle of the applicant’s cross-examination by the Minister’s lawyers to allow the applicant’s representative to obtain a medical report addressing the applicant’s impaired cognitive function, which had become apparent in the course of the applicant giving evidence.
The applicant was assessed by a clinical neuropsychologist who confirmed that the applicant had an impaired ability to adequately comprehend questions put to him during proceedings and that it was highly likely that he would be unable to retain instruction and miss significant portions of information put to him verbally, impacting his ability to provide accurate responses. The neuropsychologist recommended that the applicant’s “verbal legal instruction is supplemented in short and simple dot-point written format” and that questions be put to him in “in very simple short sentences of no more than ten words and that an interpreter is instructed to keep translations also in this format”.’
After the provision of the report, the Tribunal directed that the Minister comply with those recommendations during its cross-examination of the applicant and to provide advance notice of the topics of cross-examination, including specific references to material it intended to put to the applicant.
The Minister did not provide the required notice until the morning of the resumed hearing. Further, in the course of its cross-examination, asked questions in a way that did not comply with the neuropsychologist’s recommendations.
Ground of review
The applicant’s primary ground of review to the Federal Court of Australia was that the Tribunal denied him procedural fairness as a result of failing to adhere to the neuropsychologist’s recommendations and its own directions about the manner in which the hearing was to be conducted.
Federal Court’s Decision
While the Court accepted that, in general, procedural fairness does not require a party to provide advance notice of topics of cross-examination to a witness, the specific cognitive impairments of the applicant (evidenced by a comprehensive neuropsychological assessment) required that the applicant be provided with advance notice of the material to which he would be taken in cross-examination. Further, the late provision of that advance notice (on the morning of hearing) was insufficient to avoid practical unfairness to the applicant.
Further, the Court found that the Minister’s failure to comply with the neuropsychologist’s recommendation that questions be limited to no more than ten words was also procedurally unfair. The Court also found that the Tribunal pressed ahead with determining the application, despite acknowledging the Minister’ failure to comply with either the neuropsychologist’s report or the Tribunal’s directions. The Court found that, in doing so, the AAT deprived the applicant of an opportunity to present his case in a way which may have allowed him to overcome the barriers caused by his cognitive impairment.
Having found the AAT’s decision was affected by jurisdictional error, the Tribunal set aside its decision and remitted the application to be re-heard and determined according to law.
What does this case illustrate?
The Court’s decision in NDBR re-affirms some important principles relating to the issue of ‘procedural fairness.’
First, what procedural fairness requires depends on the specific circumstances of the proceeding.
Second, where there is expert opinion and/or recommendations relating to accommodations that could minimise the barriers faced by a cognitively impaired applicant (or witness), a failure to comply with those recommendations may amount to a failure to afford procedural fairness.
Finally, if there is no expert evidence before a Tribunal relating to the cognitive impairments experienced by an applicant (or witness) or relating to accommodations which could minimise the barriers flowing from that impairment, it will generally be much more difficult to establish a failure to afford procedure fairness.
If you or a family member is required to give evidence before the Administrative Appeals Tribunal and you are concerned that an impairment may limit your ability to adequately respond to questioning it is important that you provide expert evidence of that impairment and the barriers to participation it may present. Further, if there are accommodations that could be made to minimise those barriers, those specific accommodations should be included in any expert report provided to the Tribunal.
Hannan Tew – About Us
At Hannan Tew Lawyers we have a dedicated judicial review team that is experienced in making sure decisions made and actions taken by the Minister for Immigration, an immigration officer or the Administrative Appeals Tribunal are valid and lawful.
We offer a free, 20 minute judicial review consultation with our Special Counsel Joel McComber, who has extensive experience acting in judicial review applications of migration decisions before the Circuit Court, Federal Court and even High Court of Australia. At this consultation Joel will provide you with advice about the limitation period applying to your case, the Court that has the power to hear and determine your case, and the process of applying for judicial review.
Unfortunately we cannot provide you with advice regarding potential grounds of review or your prospects of success at a free initial consultation, but we do offer an assessment of judicial review prospects for a fixed fee of $2,000 (GST exclusive).
