Dep18 v Minister for Home Affairs

[2020] FCCA 2726

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEP18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 2726

Catchwords:
MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority – where the applicant claims the Authority came to an illogical, irrational or unreasonable conclusion – where the Authority did not accept that the applicant suffers from memory problems “in the absence of corroborative evidence” – where the applicant submitted a link between his symptoms of Post-Traumatic Stress Disorder and memory problems – consideration of the meaning of the word “corroborate” – not satisfied the Authority’s conclusion was unreasonable – application dismissed.  

Legislation:

Migration Act 1958 (Cth), s.473FA(2), pt. 7AA

Evidence Act 1995 (Cth) s.55

Federal Circuit Court Rules 2001 (Cth) sch. 1 pt. 3 div. 1 item. 3

Cases cited:

R v Apostilides (1983) 11 A Crim R 381

Director of Public Prosecutions v Hester [1973] AC 296; [1972] 3 All ER 1056

Secondary Sources:

Heydon, JD, Cross on Evidence, (LexisNexis Butterworths, 11^th edition, 2017)

Applicant: DEP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 241 of 2018

Judgment of: Judge Young

Hearing date: 7 September 2020

Date of Last Submission: 7 September 2020

Delivered at: Darwin

Delivered on: 1 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Barnes

Solicitors for the Applicant: MSM Legal

Counsel for the Respondents: Mr Ellison

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant is to pay the Minister’s costs in the sum of $7,467. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 241 of 2018

DEP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 23 May 2018 affirming a decision of the Minister's delegate made on 27 September 2017 to refuse the applicant a protection visa. 

2. The applicant is a Sri Lankan Tamil who lived in northern and eastern Sri Lanka.  The Authority accepted a number of the claims made by the applicant, including that he was arrested and beaten by the Sri Lankan army (“SLA”) in 1987, his father’s cousin was shot by the SLA in 1987, the applicant fled to Northern Province until 1989 when he returned to his home in Eastern Province, in 1990 the SLA beat the applicant, and in December 1992 the applicant and his father were taken from their home by the police, SLA and militia, beaten, tortured and detained in a military camp, and then a military prison.  The applicant was released in January 1993.  His father was subsequently imprisoned.  

3. The applicant made various other claims, including that his sister had been conscripted as a nurse for the Liberation Tigers of Tamil Eelam (“LTTE”).  He said his sister had been released by the LTTE in 2008 because of poor health.  He gave inconsistent evidence about these events. In his screening interview he said he travelled to India in 2008 with his sister to seek medical treatment for her.  In his protection visa interview he said that he travelled to India with his uncle in 2008 to escape the war and was detained by the SLA on his return.  He said he travelled to India with his sister in 2010. 

4. He also said that after his sister left the LTTE in 2008 she was sought by the SLA and had gone into hiding for two years.  However, according to the applicant's narrative, his sister applied for a passport in 2009 and, along with the applicant, departed for India officially through a Sri Lankan embarkation point in 2010.  The Authority considered these claims implausible if the applicant’s sister was in hiding from the authorities.  The applicant also said at one point that he accompanied his sister to India to meet her fiancé.  

5. The Authority highlighted the inconsistencies in the applicant’s narrative.  It did not accept as plausible the applicant’s claim that his sister had been a member of or was conscripted by the LTTE and rejected the applicant's claims in this regard.  The Authority was also not satisfied that a letter which purported to be the applicant’s sister’s letter to the LTTE seeking to be released in 2008 was genuine. 

6. The applicant claimed in his oral evidence to have been detained, beaten and later released on his return from India in 2008.  He said the same thing happened on his return from India in 2010.  In his statutory declaration dated 6 September 2017 he claimed that he was detained on his return from India in 2008 because of his father’s involvement with the LTTE.  The Authority said this was the first time the applicant had claimed his father was involved with the LTTE. 

7. Additionally, the applicant claimed to have worked with the Tamil National Alliance (“TNA”) in 2012 during elections in Sri Lanka.  He said he and his father had been kidnapped by the Karuna Group, which was a pro-government Tamil militia, beaten and later released.  He said he later received threats from the Karuna Group and fled to another place.  The Authority identified inconsistencies in the applicant’s narrative about these events and the Authority was not satisfied that the applicant’s knowledge about the TNA was consistent with his claimed level of political involvement.  The applicant did not know, for example, that the TNA was an alliance of parties rather than a single party.  The Authority was prepared to accept the applicant and his father had been harassed and threatened by the Karuna Group and the TMVP (another political party) because of his involvement in the 2012 elections but did not accept his claims of threats or harassment at that time from the SLA, police or other government authorities.

8. The applicant arrived in Australia in 2012.  In July 2013 he consulted an organisation called Association for Services to Torture and Trauma Survivors Inc. which used the acronym (“ASETTS”).  In his statutory declaration dated 6 September 2017, and provided to the delegate, the applicant stated that he struggled with his memory and said he believed the main reason was his mental health.  In support of this claim the applicant provided an undated letter from a Ms Tate of ASETTS replying to a caseworker from Migration Support Programs in Perth who had evidently referred the applicant to ASETTS.  Although the letter is undated it refers to an “assessment” of the applicant having been conducted on 24 July 2013 by ASSETS.  The letter was probably written soon after that date. The letter does not mention Ms Tate’s qualifications.  

9. The letter briefly referred to the applicant’s background.  It referred to the applicant advising that he had trouble sleeping and had frequent nightmares.  The letter did not mention memory loss.  The letter refers to the applicant having completed a “Harvard Trauma Questionnaire” which, according to Ms Tate, indicated that the applicant displayed symptomology of post-traumatic stress disorder (PTSD). 

10. The ground of review raised by the applicant relates to the observation of the Authority at paragraph 26 of its Decision and Reasons that:

    [26] The evidence before me is that Ms Tate believed the applicant had symptoms of post-traumatic stress disorder in 2013.  There is no evidence before me to indicate that the applicant has undergone any mental health treatments or been given a mental health diagnosis.  In the absence of corroborating evidence, I do not accept that the applicant struggles with his memory because of his mental health. 

11. The applicant alleged that this conclusion was unreasonable. 

12. The single ground of review and particulars are as follows: 

    The decision of the [Authority] was affected by jurisdictional error in that the Reviewer’s rejection at [26] of the Decision of the assertion that the Applicant struggles with his memory because of his mental health was based and a finding that there was “no corroborative evidence”, and that this finding was illogical, irrational or unreasonable.  

    Particulars:  

    a. The Applicant claimed that his ability to provide consistent and detailed evidence was a result of the impact of his mental health issues on his memory.  

    b. In support of this claim, the Applicant provided a letter from the Association for Services to Torture and Trauma Survivors (ASeTTS) WA which summarised the trauma suffered, his symptomology and confirmed that testing indicated he was symptomatic for Post-Traumatic Stress Disorder.  

    c. This letter was considered by the [Authority] as part of the “review material”.  

    d. The Applicant’s representative had provided submissions regarding evidence of the link between Post-Traumatic Stress Disorder, memory problems and in particular recall of traumatic or stressful events.  

    e. The [Authority] accepted that the applicant had been beaten by the Sri Lankan Authorities in 1987 and 1990, and was subjected to imprisonment, beatings and torture for a period of 17 days in 1992.  

    f. Despite the factual findings of the trauma suffered, and considering both the ASeTTS letter and submissions, the [Authority] found that there was ‘no evidence’ to indicate that the applicant has undergone mental health treatments or been given a mental health diagnosis, and in the absence of ‘corroborating evidence’ did not accept that the applicant struggles with his memory because of his mental health.  

    g. It was illogical, irrational, or unreasonable of the [Authority] to disregard the ASeTTS letter and conclude there was ‘no corroborating evidence’ of memory issues, in circumstances where the results of psychometric testing by an employee working in the field of mental health counselling for a service that specialises in providing mental health support to refugees who have suffered trauma were provided.  

    h. Further, and as a consequence of the dismissal of this material the Reviewer erred by failing to: 

    i. Consider the corroborative value of the ASeTTS letter, and in particular the validity of the testing undertaken and the result described, and the finding that the applicant was displaying symptomology consistent with PTSD;  

    ii. Consider the link between the acceptance that the Applicant had suffered significant torture and trauma of a type that would be consistent with a PTSD diagnosis; and/or  

    iii. Set out the basis upon which the lack of evidence of the applicant undertaking mental health treatment was relied on to conclude that the applicant did not have mental health issues, given that a failure or inability to obtain treatment is not, in and of itself, evidence that a mental health condition does not exist  

    the [Authority] has failed to give proper, genuine, or realistic consideration to the applicant’s claim. 

    Submissions  

13. In submissions the applicant conceded that he had not provided any evidence of mental health treatment or been given a mental health diagnosis.  The applicant conceded that Ms Tate appeared to be a counsellor and not a psychiatrist or psychologist.  It was conceded that she was not qualified to make a diagnosis of post-traumatic stress disorder.  

14. However, the applicant said that the Authority accepted that he had been arrested and beaten by the SLA in 1987, his father’s cousin was shot by the SLA, he had been displaced by the war, the SLA beat him in 1990, and in December 1992 he and his father were taken from their home by the police, SLA and militia, beaten, tortured and detained in a military camp, and then a military prison.  The applicant was released in January 1993 but his father was subsequently imprisoned.  It was said that these were traumatic experiences that might be expected to have psychological consequences. 

15. In his application for a protection visa the applicant referred to the Administrative Appeals Tribunal – Migration Refugee Division Guidelines On Vulnerable Persons (“AAT Guidelines”), submitting that the applicant satisfied the definition of a vulnerable person under paragraph 8 of the AAT Guidelines (to the extent they are relevant, if at all, to a fast-track review under Pt 7AA) because he was a victim of torture.  In particular, the applicant relied on the following passage from the AAT Guidelines:  

    93. Common symptoms which follow the experience of traumatic events are anxiety symptoms, dissociative symptoms, poor attention and concentration, memory problems, depressive symptoms, suicidal ideation, physical symptoms (digestive, cardiopulmonary, sexual problems, chronic pain), symptoms characteristic of post traumatic stress disorder, and behavioural problems including risk taking behaviours and addictive behaviours.  

    94. The following symptoms and effects may manifest during the conduct of hearings and influence an applicant’s ability to participate:

    …

    • Memory difficulties which can manifest as extremely vivid recollection of some details alongside amnesia for other detail.  This may lead to apparent inconsistencies and/or inability to present a chronologically intact account.  These difficulties may be the result of any of the aforementioned factors – intrusive recollection of events, generalised fear, avoidance or depression, protection against shame and guilt [emphasis added]. 

16. The applicant did not say that the AAT Guidelines were guidelines applicable to the Authority or that there was any legislative or procedural requirement for the Authority to have regard to the AAT Guidelines.  Rather, as I understood the submission, it was said that the Authority accepted that the applicant was a person who had undergone torture and other traumatic experiences and that it followed that in undertaking its statutory function of deciding whether the applicant was a refugee it ought, because the issue arose on the facts, to have had regard to whether the applicant’s experience of torture or trauma may have contributed to what was described in the AAT Guidelines as: 

    …apparent inconsistencies and/or inability to present a chronologically intact account. 

17. The applicant said that his experience of torture, his complaint that he struggled with his memory, the common knowledge (at least to those working in the area and expressed, for example, in the AAT Guidelines which were before the Authority) that torture or trauma may adversely affect a person’s ability to present a consistent and/or chronologically coherent narrative, and the letter of Ms Tate, an apparently independent person with experience in counselling people with experience of torture or trauma, indicating that the applicant displayed symptoms of PTSD, were all consistent and supported the possibility that the inconsistencies in the applicant’s narrative may be due to that experience of torture or trauma, rather than deliberate falsity, and required the Authority to consider whether that may be so.  

18. The applicant said that notwithstanding he had not brought forward any evidence of a mental health diagnosis or mental health treatment the assessment carried out by Ms Tate was, at least, “corroborative evidence” of his claim to suffer memory loss.

19. The applicant did not, and nor did the first respondent (“the respondent”), offer a definition of the adjective “corroborative” or the form used by the Authority, “corroborating”. In my view the applicant implicitly used the word to mean evidence which provided support for his claim, in the sense that it could rationally affect, directly or indirectly, the assessment of the probability of whether the inconsistencies in the applicant’s account or his inability to present a chronologically intact account were because of his history of trauma (echoing the definition of relevant evidence at s. 55 of the Evidence Act).

20. The respondent submitted that the letter from Ms Tate could be given “no weight” because, it was said, Ms Tate was not a qualified medical practitioner or qualified to give an opinion about whether the applicant suffered from a mental health disorder or condition, including PTSD.  Further the only evidence she gave was that she had undertaken a questionnaire indicating the applicant was symptomatic for PTSD, but that, of itself, did not establish that the applicant suffered from PTSD.  In addition Ms Tate did not express an opinion that the applicant's mental health was causing memory problems and, indeed, Ms Tate said nothing at all about the applicant's memory or whether he suffered from any ability to recall events. 

21. The respondent submitted that it was thus the case that the applicant's assertion that he struggled with his memory because of mental ill health, resulting from torture or trauma, rose no higher that an assertion without confirmatory or adequate supporting evidence and, as such, the Authority's conclusion that there was no “corroborating evidence” of the applicant’s claim was accurate and was not illogical or irrational. 

    Consideration

22. In my view the submission that Ms Tate was not qualified to provide a medical diagnosis or opinion, that she had done no more than undertake a questionnaire which indicated the applicant may be symptomatic for PTSD, and that she did not mention the applicant having memory problems or express an opinion about the applicant's mental health causing memory problems, is correct.

23. However, to approach the issue, as counsel for the respondent appeared to do, in terms of whether the letter or the opinion from Ms Tate would be admissible in proceedings to which the Evidence Act applies is too narrow because s 473FA(2) of the Migration Act provides:

    The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or the rules of evidence.  

24. Part of the difficulty in this matter arises from unexpressed different meanings attributed to the words “corroborative” or “corroborating” by the applicant and the respondent.  Implicit in the applicant’s submissions was an assertion that the Authority, in using the phrase “in the absence of corroborating evidence”, meant that Ms Tate’s letter did not constitute evidence which could rationally affect, directly or indirectly, the assessment of the probability that the inconsistencies in his narrative were the result of past trauma affecting his mental functioning.  

25. If this is what the Authority meant by the phrase I would tend to agree with the applicant’s argument that the letter from Ms Tate was at least relevant because it affected the assessment of the probability of his claim that the inconsistencies in his narrative were the result of past trauma affecting his mental functioning.  I accept that the letter from Ms Tate does not refer to memory loss.  Nevertheless, the applicant complained of memory loss.  The Authority accepted that the applicant had experienced torture and other traumatic events and it may be accepted that in some cases such experiences can lead to:  

    … apparent inconsistencies and/or inability to present a chronologically intact account.

26. The fact that the applicant is a member of a class of persons having experienced torture and other traumatic events does not mean that the applicant, in fact, has memory problems or that it should, therefore, be accepted that he has memory problems affecting his capacity to provide a chronologically consistent and coherent account. Nevertheless, the letter from Ms Tate was not completely neutral on that issue.  She undertook a questionnaire that indicated that the applicant was symptomatic for PTSD, a mental health disorder, and one notoriously associated with memory deficits, as reflected, for example, in the AAT Guidelines.  She recorded other aspects of the applicant’s history indicative of impaired mental health or functioning. 

27. The facts that the applicant had experienced torture or other traumatic events which can give rise to symptoms including memory loss, that he claimed loss of memory as an explanation for inconsistencies in his narrative and the evidence of a trauma counsellor that she had undertaken an objective questionnaire to the applicant, which indicated that the applicant displayed symptomology of PTSD, a mental health disorder, constitute evidence that the applicant's claims may be true. 

1. The letter from Ms Tate nevertheless fell well short of providing evidence that it was likely that the inconsistencies in the applicant’s narrative were due to memory loss or associated with mental ill health resulting from torture or trauma.  In my view the letter, along with the other elements I have mentioned, raise no more than the possibility that this was the case.  

2. If the Authority had reasoned in this way, accepting the possibility that the applicant may have suffered memory loss or confusion resulting from his experience of torture or trauma, it would have then needed to consider whether it was satisfied that the inconsistencies in the applicant’s narrative were in fact explained by memory loss.  It is clear that some of the claims made by the applicant were rejected because of implausibility.  For example some of the applicant’s claims about his sister, or absence of expected knowledge, such as that the TNA was not a single party but an alliance of parties.  The possibility of memory loss did not address these other problems with the applicant’s reliability. In other words, the letter and the other elements are consistent with the applicant’s claims but they are not inconsistent with the applicant’s claims being unreliable for reasons other than memory loss.  

3. Counsel for the respondent submitted that while it may have been open to the Authority to reason in the manner the applicant said was required, it was not illogical or unreasonable for it to fail to do so.  Further, the court should not read the reasons of the Authority with “an eye keenly attuned to error”. 

4. Counsel for the respondent implicitly interpreted the meaning of the Authority’s use of the phrase “absence of corroborating evidence” narrowly, to mean absence of directly relevant or confirmatory independent evidence that the applicant suffered from memory loss.  Counsel said such evidence was clearly missing. 

5. There are obvious limits to applying case law and principles developed in courts in which the rules of evidence apply, and which are applied mainly in criminal trials, to administrative decision-making.  However, in this case I am satisfied that it is appropriate to make reference to the meaning or meanings ascribed to the word “corroborate” by superior courts. 

6. According to JD Heydon, Cross on Evidence, (LexisNexis Butterworths 11^th edition, 2017), [15165]:  

   ‘Corroboration’ is not a technical term.  It simply means ‘confirmation’. 

7. The footnote to the last sentence observes that:  

   In earlier editions of this work the word ‘support’ was included in this context.  Its use has been deplored in R v Apostilides (1983) 11 A Crim R 381 at 401…

8. In Apostolides Kaye J delivered the leading judgement of the Victorian Court of Criminal Appeal.  At page 401 his Honour said there was a distinction between evidence which is “corroborating” and evidence which is “supporting”, pointing in part to the etymological differences, observing that the Latin verb “corroborare” means to strengthen while the verb to support is “sustinere”.  His Honour referred to the judgement of Lord Morris of Borth-y-Gest in Director of Public Prosecutions v Hester [1973] AC 296 at 315 which, in part, said:

   … the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible. 

9. Kaye J also quoted Lord Diplock in the same case who said:

   An examination of the basic 19^th century cases makes it plain that in the judgments “corroboration” was not used in any other sense than “confirmation”. 

10. Kaye J said:

    In my opinion, there is sound reason for using the word “corroboration” in its ordinary meaning of confirming or strengthening and for avoiding the word “supporting” as a substitute for it. 

11. Cross on Evidence at [15170] goes on to say that:

    In determining whether a given piece of evidence is capable of amounting to corroboration regard must be had to the issues at the trial.  …  It is on this basis that courts have rejected (as corroborative evidence) evidence which is as consistent with innocence as with guilt, for example opportunity, or which merely tends to confirm a matter which is common to the case of the Crown and that of the accused …

12. I am satisfied that the Authority’s use of the phrase “in the absence of corroborating evidence” was consistent with an intention to convey the view that there was no independent evidence before it to confirm or strengthen the applicant’s claim that the inconsistencies in his narrative were due to memory loss resulting from his earlier experiences of torture or trauma.  The letter from Ms Tate made no such claim, directly or indirectly.  The letter made no mention of memory loss and, accordingly, the letter did not and could not confirm such a claim.  The letter may be interpreted as raising the possibility of the applicant suffering from PTSD.  If that is accepted it might be thought that it is possible that the symptoms the applicant experienced might include memory loss, although the letter did not go so far.  In my view, this does not amount to “corroboration” in the sense described by Kaye J. 

13. I also have regard to the passage from Cross on Evidence at [15170] which, if translated into a non-criminal law context, suggests that if evidence is consistent with conflicting propositions then it is not corroboration.  In the context of the issues in this case, if the letter of Ms Tate is consistent with the applicant suffering from memory loss because of his experience of torture or trauma and consistent with him not suffering from memory loss because of his experience of torture or trauma then it is not corroborative of either proposition.  In my view, that is the case here. 

14. I am not satisfied the Authority incorrectly described the evidence before it or misunderstood the significance of that evidence for the issues for determination.  I am not satisfied that its conclusion that there was an “absence of corroborating evidence” of the applicant’s claim to suffer memory loss affecting his capacity to provide a consistent and coherent narrative was unreasonable or, indeed, inaccurate.  Accordingly, I am not satisfied that the Authority failed to give proper, genuine, or realistic consideration to the applicant’s claim as alleged in the ground of review.  The application is dismissed.  

15. Neither party submitted that costs should be other than the sum provided for in Schedule 1, Part 3, Division 1, Item 3 of the Rules.  There will be an order that the applicant pay the respondent’s costs in that amount. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 1 October 2020