Federal Court (Full Court). Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?
A delegate refused the Applicant's protection visa application, after which the Tribunal on review made the following direction:
1. On a date to be fixed, but not before 19 June 2021, the Applicant must attend and participate in a consultation with Dr GosiaWojnarowska, Forensic Consultant Psychiatrist, for the purpose of Dr Wojnarowska preparing an independent expert report; and
2. The Respondent must pay all fees and costs associated with Dr Wojnarowska’s assessment and preparation of her report.
The Applicant then sought in the Federal Court (FCA) an order setting aside the Direction pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act1977 (Cth) or s 23 of the Federal Court of Australia Act 1976 (Cth).
The FCA described the relevant background as follows:
7 In the course of the proceeding before the Tribunal, the applicant filed a psychiatric report and later a supplementary psychiatric report in support his claim.
8 Following receipt of the supplementary psychiatric report, the Minister applied for the hearing before the Tribunal to be adjourned so that the Minister could obtain its own psychiatric opinion. The applicant conveyed to the Minister that he would not consent to attending the psychiatric assessment.
9 On 9 June 2021, the Minister requested that the Tribunal make a direction under s 33 of the [Administrative Appeals Tribunal Act 1975 (Cth) - AAT Act] to compel the applicant to attend a psychiatric consultation organised by the Minister for the purpose of the Minister obtaining an independent expert report. Following an interlocutory hearing, the Tribunal made the Direction on 11 June 2021.
Section 33 of the AAT Act provided as follows:
33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as therequirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinksappropriate.
…
Who may give directions
(2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a) where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to theproceeding, by the President, by an authorised member or by an authorised officer; and
(b) where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
Types of directions
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d) limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e) require witnesses to give evidence at the same time; or
(f) limit the time for giving evidence or making oral submissions; or
(g) limit the length of written submissions.
Some of the questions to the Full Court of the FCA (FCA) on appeal from the FCA were as follows:
Question 1: Was the purpose of the direction to compel LPSP to attend and participate in a consultation with Dr Wojnarowska?
Question 2: Assuming the direction was valid, may LPSP be exposed to criminal liability if he did not attend the scheduled consultation with the Minister’s psychiatrist?
Question 3: Assuming the direction was valid, may LPSP be exposed to criminal liability if he attended the scheduled consultation with the Minister’s psychiatrist but did not co-operate during the consultation?
Question 4: Assuming that the direction exposed LPSP to criminal liability under s 63 of the AAT Act, did that exposure give the direction a coercive character, regardless of how likely it might be that a charge might be brought, or a conviction recorded?
Question 5: Was there also the possibility that the Tribunal would dismiss LPSP’s review application under s 42A(5) of the AAT Act if he failed to comply with the direction, which also gave a coercive character to the direction?
Question 6: Was the direction procedural, instead of one which interfered with personal liberty and autonomy?
Question 7: If the answer to Question 6 is 'no', can it be said, based on the principle of legality, that "the Court should not construe s 33 of the AAT Act as conferring the power on the Tribunal to make the Direction, because the Direction would interfere with his fundamental common law freedoms"?
Question 8: For the purpose of the principle of legality, is there a "relevant difference between a physical medical assessment and a psychiatric medical assessment"?
Question 9: For the purpose of the principle of legality, is there a material difference between an in-person consultation or one conducted via electronic means?
Question 10: Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?
Question 11: Can it be said that "the possibility that some other direction might have been made at some later date does not determine the validity of the Direction that was in fact made and is the subject of this appeal"?
The FCAFC answered those questions as follows: