BCN18 v Minister for Home Affairs
[2018] FCCA 2641
•28 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCN18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2641 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Tribunal found Applicant was not a witness of truth – whether Tribunal made illogical assumptions in considering a psychologist report and a psychiatrist report submitted by the Applicant – – whether Tribunal rejected expert opinions and substituted its own opinion – whether there were logical connection between evidence and conclusions drawn by the Tribunal – Tribunal’s credibility concerns were not overcome by evidence of the Applicant’s mental state – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 476 |
| Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | BCN18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 610 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 6 August 2018 |
| Date of Last Submission: | 6 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Yu |
| Solicitors for the Applicant: | Ms A Battisson, Human Rights for All Pty Ltd |
| Solicitors for the First Respondent: | Mr A Fisher, HWL Ebsworth |
ORDERS
The Application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 610 of 2018
| BCN18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, dated 31 January 2018, which affirmed the decision of a Delegate of the First Respondent, the Minister for Home Affairs (then the Minister for Immigration and Border Protection), made 25 May 2017. The Delegate refused to grant the Applicant a Protection (Subclass 866) Visa.
The Applicant is a 26 year old Tajik Sunni Muslim and a citizen of Afghanistan. He arrived in Australia in June 2015 on a Subclass 309 Provisional Partner visa on the basis of his marriage in Kabul to an Australian citizen of Afghani descent. The Applicant married his former wife, Ms A, in Kabul in 2014. She returned to Australia and sponsored the Applicant for a partner visa which was granted offshore.
At the end of June 2015, the Applicant arrived in Australia. However, once settled in Australia Ms A informed him that she did not wish to be married to him. As a result of the breakdown of their relationship a litany of “allegations”, by Ms A and her siblings were made, and the Applicant was charged with domestic violence related offences against Ms A and her family. The Applicant was later exonerated of all charges, but spent time in prison pending prosecution before being released on bail. By then Ms A had withdrawn her sponsorship, and his partner visa was cancelled. Whilst released on bail, he was placed in immigration detention.
On 7 April 2017 he applied for the Visa, the subject of the present proceeding. The Applicant appeared before the Tribunal by video conference on 15 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The Applicant was represented by his registered migration agent who attended the hearing. On 31 January 2018, the Tribunal affirmed the decision of the Delegate not to grant the Applicant the Visa.
On 8 March 2018, the Applicant applied to this Court for judicial review of the Tribunal’s decision.
The Applicant’s claims and circumstances
According to his evidence to the Department of of Immigration and Border Protection and to the Tribunal, the Applicant claimed protection on the ground that because of his and his father’s work for Afghan and American forces, the Taliban will harm him should he return to Afghanistan. He also claimed to fear harm from his former wife’s family in Afghanistan. Both the Applicant and his representative also claimed before the Tribunal that Ms A’s family in Afghanistan have connections to the military, one of whom is a high-ranking military officer, who would likely know about the breakdown of the Applicant’s marriage, and the Applicant claimed he would suffer harm from them should he return (Tribunal decision at [79]).
The Tribunal’s decision
The Tribunal held significant concerns about the Applicant’s credibility, and concluded that he was not a witness of truth, and that the account of events on which his protection claims are based is false.
The Tribunal “made extensive adverse credibility findings against the Applicant”. As a consequence of those findings the Tribunal rejected his claims. The Tribunal set out the credibility concerns it had with the Applicant’s evidence, addressing his evidence and submissions (including as to his employment), as set out:
(a) in written statement dated 9 September 2016, expanded upon in a further written statement dated 6 April 2017;
(b) in compliance interviews on 29 and 30 June 2016;
(c) in interview with the Delegate on 27 April 2017;
(d) in letters and additional material submitted by the Applicant’s representative by letters dated 11 May 2017, 23 June 2017, 3 August 2017, and 25 October 2017; and
(e) at the Tribunal hearing on 15 September 2017, and in an application for partner visa made in October 2014 (at [41]).
The Tribunal addressed the Applicant’s evidence and submissions under the headings “The applicant’s employment” (at [8]–[21]), “Recommendation letter from X” (at [22]–[35]), “Documents related to employment” (at [36]–[40]), “Evidence about employment and education in application for a partner visa” (at [41]–[45]), “Omission of important claims from compliance interviews” (at [46]–[51]), “Evidence about the employment of the applicant’s father” (at [52]–[60]), and “Evidence about receiving letters from the Taliban” (at [61]–[66]).
The Tribunal at [67] concluded its assessment of whether or not the Applicant was relating a truthful account as follows: “Considered cumulatively, the concerns the Tribunal holds about the [A]pplicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.” In reaching this conclusion, at [68]–[70] the Tribunal considered the submissions made by the representative in writing as well as in oral submissions made at the Tribunal hearing. However, for the reasons it gave at [69] and following, it found that those submissions did not overcome its adverse assessment of the Applicant’s credibility.
In this Court, both parties agreed that the Applicant’s challenge to the Tribunal’s decision focuses attention on the Tribunal’s treatment of two medical reports:
(a) a report from psychologist, Ms H, dated 24 October 2016, submitted with the Applicant’s Visa application; and
(b) a report from psychiatrist, Dr A, dated 7 June 2017, submitted by the Applicant’s representative together with other documents under cover of an email dated 2 August 2017 and accompanied by a letter dated 3 August 2017.
Both Ms H and Dr A reported on the Applicant’s history and circumstances relating to his marriage, including arriving in Australia on a spouse visa, the allegations, charges and arrest for domestic violence, and incarceration in jail and in detention. Dr A’s report being later in time, also recognises the dismissal of the charges. Ms H also recorded the Applicant’s concerns fearing to return to Afghanistan as his ex-wife’s family could harm him without repercussion in Afghanistan, and that “he is also fearful of persecution by the Taliban due to his family’s work with the American army”.
Psychologist’s report
In her report Ms H states:
[The Applicant] is fearful to return to Afghanistan as his ex‑wife's family could harm him without repercussion in Afghanistan. He is also fearful of persecution by the Taliban due to his family's work with the American Army…
[The Applicant] reported experiencing excessive anxiety and worry on more days than not in the last year about a number of things such as his marital breakdown, criminal case, incarceration, and concern about his future.
Ms H states that the Applicant had presented with generalised anxiety disorder and major depressive disorder beginning with the breakdown of his marriage in Australia. Ms H identified symptoms consistent with generalised anxiety disorder based on DSM-V, reporting difficulty controlling his worry with the symptoms causing significant distress and impairment in daily functioning. Ms H noted that the Applicant’s presentation and results are also consistent with major depressive disorder based on DSM-V. She stated that these symptoms caused the Applicant clinically significant distress and impairment in his daily functioning.
Ms H reported that the Applicant’s symptoms started during the allegations [made by Ms A and her family] and police involvement. Ms H concluded, “[the Applicant’s] mental health is likely to improve significantly should he be released from the immigration detention centre and allowed to reside in the community. Nonetheless, ongoing support from a mental health professional is recommended to monitor and manage symptoms”.
Psychiatrist’s report
In his report dated 7 June 2017, Dr A noted stressors being cultural shock, Court and visa application procedure, being in detention centre for more than a year, anxiety about his family and his case, stating that the Applicant “does not like to stay in McKenzie as he has found it hard to cope with detainees from jail (he has nothing in common with them)”. Dr A noted current medication and diagnosed him with “anxiety and mild depression (situational)”. Dr A identified current medication the Applicant was taking, and provided a plan including a two-month review.
In the Applicant’s representative’s letter dated 3 August 2017 she referred to the psychiatrist’s report by Dr A under the subheading “Mental Health”, stating:
[The Applicant’s] mental health is deteriorating in closed administrative detention. [The Applicant] has been diagnosed with adjustment disorder with anxious mood and is taking anti‑depressants. (See [psychiatrist’s report].) He has recently been moved to Christmas Island, away from his support network. It is noted that [the Applicant] remains in administrative detention after being held in prison for a crime that he has been cleared of committing. As such, it is requested that any decision of the [Tribunal] is taken in a timely and expedient manner. [page318]
Tribunal consideration of the medical evidence
The Tribunal addressed the medical evidence at [71] and [72]:
[71] In reaching its conclusions on credibility, the Tribunal has also considered medical evidence the [A]pplicant submitted to the Tribunal and the Department. According to this evidence, in October 2016, a psychologist found that the [A]pplicant presented with features of generalised anxiety disorder and major depressive disorder beginning with the breakdown of his marriage in Australia. In June 2017 a psychiatrist assessed the [A]pplicant as having an adjustment disorder with anxious mood disorder for which he was taking medication. The psychiatrist refers to stressors as being events that have occurred since the [A]pplicant arrived in Australia, namely, the breakdown of his marriage.
[72] The Tribunal has carefully considered this evidence and records that the [A]pplicant was well able to meaningfully participate in the hearing and give evidence. The diagnoses of these mental health professionals are to a great degree based on information and claims that are self-reported to them by the [A]pplicant. While the Tribunal acknowledges the diagnoses that have been made, because Tribunal finds the [A]pplicant is not a witness of truth and that the account of events on which his protection claims are based is false, it also finds that there is no credible evidence as to what has caused the mental states which these mental health professionals have assessed the [A]pplicant as having. Quite possibly, on return to Afghanistan, his immigration status in Australia resolved, his mental state could also resolve. At any rate, no claim was made that the [A]pplicant would suffer serious harm in Afghanistan because of his mental state as assessed nor does any such claim arise on the evidence before the Tribunal.
The Tribunal then took into account various documents submitted to corroborate the Applicant’s claims and reached a conclusion that the documents do not overcome the concerns the Tribunal holds about his credibility “which significantly discredit him as a witness” (see at [73]). The Tribunal did not give weight to certain documents, including a video submitted by his representative.
Tribunal’s consideration of the other evidence
The Tribunal, having concluded the Applicant was not a witness of truth, disbelieved his evidence about employment and work undertaken by the Applicant, his father and mother before, during and after the rule of the Taliban. It found all of the evidence to be false. The Tribunal similarly disbelieved the Applicant’s evidence about his father’s involvement in a political party, that he and his parents suffered harm in their lives in Afghanistan at any time, that his mother suffered a stroke, and about the Applicant studying and undertaking work as a pharmacist in Afghanistan. The Tribunal did not believe the Applicant in any claim or any of his evidence, except in a limited respect, at [79], as follows:
The Tribunal accepts that the [A]pplicant married in Afghanistan and is now separated from his wife who brought domestic violence-related charges against him in Australia which were then dismissed.
The Tribunal concluded that it had no credible evidence before it that anyone in Afghanistan would seek to harm the Applicant because of the failure of his marriage in Australia, nor did the Tribunal believe that the Applicant entered into a marriage in Afghanistan to escape from harm. Having disbelieved the Applicant on virtually all claims and evidence placed before the Tribunal, it then turned to assess whether the Applicant holds a well-founded fear of persecution within the meaning of s.5J(1) of the Act. It concluded, at [100], on the basis of country information on security, ethnicity, religion, returnees and inferences to be drawn from country information, that the risk of the Applicant suffering serious harm in Afghanistan is remote, and not a real chance. He does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act.
At [101] the Tribunal turned to consider the complementary protection criterion, and, for the same reasons, the Tribunal found that the risk of the Applicant suffering significant harm in Afghanistan is remote. It concluded that “accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the [A]pplicant’s removal from Australia to the receiving country, Afghanistan, there is a real risk that he will suffer significant harm.”
Ground of review
The Applicant set out one ground of review in his application, as follows:
1. The Second Respondent (the Tribunal) erred by making illogical assumptions about the Applicant's mental health conditions.
Particulars
a) The Tribunal, at [71] of its decision, accepted that in October 2016 a psychologist found that the Applicant presented with features of generalised anxiety disorder and major depressive disorder beginning with the breakdown of his marriage in Australia and that in June 2017, a psychiatrist assessed the Applicant as having an adjustment disorder with anxious mood disorder for which he was taking medication.
b) At [72] of its decision, the Tribunal concluded that 'While the Tribunal acknowledges the diagnoses that have been made, because Tribunal finds the [A]pplicant is not a witness of truth and that the account of events on which [h]is protection claims are based is false, it also finds that there is no credible evidence as to what caused the mental health states which these mental health professionals have assessed the [A]pplicant as having. Quite possibly, on return to Afghanistan, his immigration status in Australia resolved, his mental state could also resolve.'
c) At [79] of its decision, the Tribunal accepted that the Applicant had married in Afghanistan and had since separated from his wife in Australia. Having accepted this fact, there was no logical basis for finding that there was no credible evidence as to what caused the Applicant's mental health conditions.
(d) there was no logical basis for the Tribunal’s finding at [72] of its decision that the Applicant’s mental health conditions could resolve on return to Afghanistan.
e) In making the findings at [72] of its decision, the Tribunal impermissibly substituted its own lay opinion for that of the expert opinions provided by the psychologist and psychiatrist in October 2016 and June 2017, in making findings on the Applicant's state of mental health.
f) The findings made by the Tribunal at [71]-[72] of its decision were relevant to the Tribunal's conclusion that the Applicant was not a witness of truth and that his account of events could not be believed. Consequently, the findings were also relevant to the Tribunal's decision to affirm the refusal of the visa.
The proceeding before this Court
The Applicant was represented by counsel, Ms Yu, and the Minister was represented by Mr Fisher, solicitor. The Applicant was present in Court during the hearing.
As I have noted above, both parties agreed that the Applicant’s challenge to the Tribunal’s decision focuses attention on the Tribunal’s treatment of the two medical reports.
Applicant’s submissions
Ms Yu, for the Applicant, submitted that the fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to findings of credibility are not open. She submitted that in the present case the Tribunal reached the findings without any logical or probative basis. Relying on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135], she submit that the Tribunal’s decision may be affected by jurisdictional error for illogicality and irrationality if, among other things, there is no logical connection between the evidence and the inferences or conclusions drawn. She also submitted that unwarranted assumptions as to matters relevant to the formation of a view of credibility also amount to jurisdictional error: relying on WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 per Lee and RD Nicholson JJ at [54]; Carr J agreeing at [57].
Ms Yu submitted that the Tribunal’s findings and comments at [72] went beyond a mere assessment of weight, and instead amounted to a rejection of the medical opinions of Ms H and Dr A, and a substitution of its own lay opinion in place of the expert opinions. This is because, she submitted, the Tribunal did not accept that the experts’ opinions could be relied on in respect of their conclusions as to the Applicant’s state of mental health.
She submitted that, read fairly, the Tribunal did not accept that the Applicant was suffering from the diagnosed mental health issues, and was instead of the view that his mental state would resolve if he were to simply abandon his migration issues in Australia and return to Afghanistan. She submitted that there was no logical basis for the Tribunal to arrive at this conclusion, nor was it open to the Tribunal to take that approach for two key reasons:
(1)the causal link between the Applicant’s mental health issues as identified by Ms H and Dr A was the Applicant’s personal circumstances including those surrounding the breakdown of his relationship with his former wife, Ms A. The Tribunal accepted the facts of the relationship breakdown, domestic violence charges and their dismissal (see at [79]); and
(2)the Tribunal did not properly consider the nature and quality of the expert evidence provided by Ms H and Dr A; instead it substituted its own lay opinion for the expert opinion (referring to MZXTT v Minister for Immigration and Citizenship [2008] FMCA 1007 at [37]).
Ms Yu urged the Court to follow the Court’s approach in MZXTT. She submitted that the Tribunal made unwarranted assumptions about the Applicant’s state of mental health by speculating that his condition could resolve merely by reason of his return to Afghanistan, and in so doing, effectively rejected the expert opinions of Ms H and Dr A and substituted its own lay opinion.
Ms Yu’s submitted that a witness’ state of mental health is inextricably linked to their ability to recount events, and consequently, their perceived credibility before a decision-maker. She submitted that where credibility is in issue care needs to be taken by a decision maker, including a proper consideration of the medical evidence adduced and explanations given for gaps and inconsistencies in evidence.
She submitted that the Tribunal’s conclusions on the Applicant’s mental health and credibility formed a substantial part of its reasons for affirming the decision under review because those conclusions led it to find that the Applicant would not be harmed on return to Afghanistan, and, as a result, to find that he did not meet the criteria for a grant of a protection Visa.
Consideration
Commencing at [7] and through to [67], the Tribunal refers to and considers significant inconsistencies in the development of the Applicant’s claims. The Tribunal considers in detail the paucity of early claims, for example in written statements dated 9 September 2016 and 6 April 2017, when compared with later detailed written submissions and new claims.
At several points in its decision, the Tribunal contrasts detailed statements, which nonetheless omit important claims. See for example the Tribunal’s treatment of the evidence at [8] – [35] in relation to the Applicant’s purported employment in the period between November 2012 until December 2013 with “Z Company”, on a part-time basis, when he had earlier claimed, and said to the Delegate, he worked as a driver for “Y Company” in that period. The Applicant’s statements lacked information in any detail when claimed to be working as a driver in that period. The Applicant, however, provided detail about a recommendation letter from X, which he relied on to support his claims, but in May 2017 ceased to rely on it (as it was a fabrication).
The Tribunal expressed concerns as to the significant inconsistencies and conflict in the Applicant’s evidence about his employment, his father’s employment, his personal circumstances, and those of his family. The Tribunal noted that it was not merely an absence of detail, but rather very basic inconsistency between the two visa applications (partner and protection) on fundamental aspects of the Applicant’s life, namely his education and employment (see, eg, at [44]), that gave rise to its concerns, and lead to its findings.
As Mr Fisher for the Minister submitted, it is important to note the structure of the Tribunal’s reasons. These develop as follows.
At [7] the Tribunal concludes that the decision under review should be affirmed by reference to the claims for protection that due to his and his father’s work for Afghan and American forces the Taliban will harm him. The Tribunal then, commencing at [8], over several pages, explains the concerns it has about the Applicant’s credibility and the reasons for those concerns by reference to inconsistencies and omissions in the Applicant’s evidence, including his reliance on a false reference (recommendation letter from X) for a considerable period of time, (up until May 2017), and arrives at its conclusion on credit at [67].
The Tribunal then turns to set out and consider the Applicant’s representative’s submissions about the Applicant’s credibility, including submissions relating to the effect on the Applicant of extreme stress, anxiety and depression since arriving in Australia, having been accused, charged and jailed on the basis of false accusations (about violent behaviour related to the breakdown of his marriage). The Tribunal records the representative’s submissions, “that [the Applicant’s] memory and approach to the protection visa application process had not been clear, ordered or the subject of calm consideration” (at [69]).
The Tribunal says it has dealt with the Applicant’s mental state and experiences since his arrival in Australia, which I find reasonably refers back to [59] and at [60], where the Tribunal responds allowing for the various matters mentioned by the representative. It continues: “notwithstanding those matters, in his written statements, the [A]pplicant has given very clear and detailed accounts about his father’s work in Afghanistan and has been somewhat precise about the periods of that employment. None of the matters mentioned by the representative explain or excuse the inconsistency and vagueness in his evidence on this issue.”
The Tribunal considered additional evidence submitted by the Applicant. The Applicant submitted a video, which appeared to have been produced by “V Company” and related to the construction of a school and military facility in 2007 which involved American forces, and claimed that his father appeared in the video. The Tribunal noted that the appearance in a video does not overcome the inconsistency and vagueness in the Applicant’s evidence about the matter.
Returning to [69], the Tribunal was not satisfied that the concerns it held about the Applicant’s credibility can be explained or excused on the grounds submitted by the representative.
At [70], the Tribunal summarises the significant inconsistencies in the Applicant’s evidence as follows:
[70] The Tribunal does not accept that the [A]pplicant's mental state and his experiences since his arrival in Australia could possibly explain the significant inconsistency in his evidence about his and his father's employment, central features of his protection claims, his willingness to rely on a false reference from X, the omission of the basis on which he seeks protection at interviews with the Department and his inconsistent evidence about receiving letters from the Taliban. The Tribunal does not accept that his mental state and experiences in Australia were the cause of these very important credibility issues. It was submitted that the [D]elegate did not consider or hear the [A]pplicant's evidence relating to knowledge the representative claimed the [A]pplicant held about a particular construction method used in Afghanistan. Even if the [A]pplicant holds such knowledge, that would not overcome the concerns the Tribunal holds about his credibility. At best, all the Tribunal could conclude is that it has no credible evidence as to how the [A]pplicant acquired that knowledge, for what purpose and in what respects, if any, it was used.
I infer that the Tribunal, by its summary at [70], is saying that the problems with the Applicant’s evidence are so extensive that they cannot be explained by the Applicant’s mental state.
The Tribunal then deals with the reports of Ms H and Dr A. For the reasons it gives at [72], those reports too do not overcome the Tribunal’s concerns. Specifically, the Tribunal acknowledges the diagnoses that have been made. By implication, it accepts those diagnoses. However, to the extent that the medical reports set out information and claims that are self-reported to the medical experts by the Applicant (for example Ms H’s report regarding family and danger on return), the diagnoses did not persuade the Tribunal that the Applicant’s claims were credible. The Tribunal found “that there is no credible evidence as to what has caused the mental states which these mental health professionals have assessed the [A]pplicant as having”.
I note that each of Dr A and Ms H posit that the Applicant’s mental state could improve were he to be released from detention. I am informed from the Bar table that the Applicant is not presently in detention.
At [72], the Tribunal stated: “Quite possibly, on return to Afghanistan, his immigration status in Australia resolved, his mental state could also resolve.” It is quite correct, as the Applicant’s counsel submits, that the sentence is speculation. However, I do not consider that by the sentence, the Tribunal is a rejecting the mental health professionals’ reports. Rather, the speculation links to the diagnosis in Dr A’s report of the Applicant’s anxiety and mild depressive disorder as being “situational” (see above at [16]) and Ms H’s conclusions (see above at [15]).
The Tribunal, at [72] is exploring whether the health professionals’ reports can provide credible evidence in support of the Applicant’s claims. I note that the Applicant’s claims for protection are summarised in the decision at [7], and [79] in relation to the family members being connected to the regime and the likelihood of harm on return.
I conclude that the Tribunal was correct to observe at [72] that the Applicant did not make any claim that he would suffer serious harm in Afghanistan because of his mental state as assessed, and that no such claim arose on the evidence before the Tribunal. The Applicant did not claim a likelihood of harm on the basis of his mental state on return.
The Tribunal does not cavil with the diagnoses. Its key finding of fact is that there was no credible evidence as to what has caused the Applicant’s mental states which the mental health professionals have assessed the Applicant as having. This finding of fact proceeds from the premise that the Applicant has the mental states assessed.
The view that the Applicant’s mental state could resolve once his immigration status is resolved reflects both Ms H’s conclusion that his condition is likely to improve significantly should he be released from immigration detention centre and allowed to reside in the community as well as Dr A’s observation that one of the stressors affecting the Applicant was being in a detention centre for more than a year. That view of the Tribunal as to the resolution of the mental state of the Applicant in the future is distinct from the material finding of fact by the Tribunal that neither report establishes a cause of the mental state as originating from the Applicant’s protection claims to fear harm from the Taliban on return arising from his work/employment, or from his former wife’s family arising from the breakdown of their marriage.
Contrary to the Applicant’s submissions, I conclude that the Tribunal in its reasons does accept that the Applicant was suffering from diagnosed mental health issues, but concluded that those diagnoses did not displace the Tribunal’s finding at [67] that the Applicant was not a witness of truth, and that the account of events on which his protection claims were based was false.
Neither Ms H nor Dr A attributed their diagnoses to claims underpinning the Applicant’s protection Visa application. I note that even if Ms H and Dr A had expressed the opinion that the Applicant’s mental health conditions have been caused by certain events consistent with his protection claims (and they do not), the Tribunal, although respecting their diagnoses, is not bound to accept the psychologist’s opinion of the factual state of affairs leading to that diagnosis (noting Dr A did not proffer an opinion on them): Subramanian v Minister for Immigration and Multicultural Affairs [2001] FCA 891, [28], affirmed on appeal: Subramanian v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255, [47]-[48]; Algama v Minister for Immigration [2001] FCA 476 at [127]; and SZHHF v Minister for Immigration and Citizenship [2008] FMCA 1208, [15], an appeal from which was dismissed in SZHHF v Minister for Immigration and Citizenship [2008] FCA 1818.
Even if it could be said that impliedly, or implicitly, the mental health professionals considered that a cause, or causes, or contributors, of the Applicant’s mental health status was or were his marital circumstances, and allegations of domestic violence since he has come to Australia, and the stresses of being detained in prison and then in detention, those circumstances do not link to the Applicant’s experiences in Afghanistan, and so are not relevant to his protection claims.
To the extent that the Applicant’s representative before the Tribunal made submissions that the Applicant’s mental health status provided an explanation for the inconsistencies and vagueness in the Applicant’s account of events, the Tribunal has considered and dealt with those submissions at [68] through to [70], and by referring back to its consideration from [8] through to [67].
After recording at [67], that the Tribunal has serious concerns about the Applicant’s credibility, it then moves to consider whether there were any “countervailing” considerations, and in so doing, considered the Applicant’s representative’s submissions concerning the Applicant’s memory problems, and also the diagnoses of the mental health professionals. It is a matter for the Tribunal to make an assessment of the evidence before it, and the Tribunal properly does so. The Tribunal accepted the mental health professionals’ diagnoses that the Applicant was suffering variously from anxiety disorders and depressive states as identified in the medical reports.
Conclusion
The Tribunal found significant, indeed, overwhelming, credibility concerns with the Applicant’s claims and his evidence. The Tribunal found the extent of inconsistencies, and the combination of both detail and vagueness to be so great that they were not accounted for, or overcome by, the mental pressure under which the Applicant’s representative submitted the Applicant was placed in the period from making his first written statement in September 2016 up to the hearing before the Tribunal. The Tribunal reached its conclusions on material before it, and provided reasons on its findings as to the inconsistencies.
I conclude that the Tribunal did not err by making illogical assumptions about the Applicant’s mental health in coming to the conclusion that the Applicant was not a credible witness. Rather, the Tribunal concluded on the basis of significant inconsistencies in the evidence before it that the Applicant was not a witness of truth and was not credible. The Tribunal then tested its conclusions by reference to the Applicant’s representative’s submissions and by considering and accepting the mental health professionals’ diagnoses. It concluded, on the material available to it, that those diagnoses did not overcome the concerns it had as to the Applicant’s credibility. Whilst not expressed in the most felicitous language, as the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 has cautioned, it is not appropriate to nitpick with the Tribunal’s expression of its reasons.
I conclude that the Tribunal’s reference to the lack of credible evidence as to the facts of what has caused the mental states that the Applicant has is a finding of the absence of independent evidence of any cause originating from, or relevant to, the events on which the Applicant’s protection Visa claims are made (namely the claims summarised at [7] and [79]). It was a finding open to the Tribunal on the material before it.
It follows that I have concluded that the Tribunal has not erred, and that the Applicant’s claim must be dismissed. I will hear the parties on costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 28 September 2018
0
9
2