DYT18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 106

Federal Circuit and Family Court of Australia

(DIVISION 2)

DYT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 106  

File number(s):	MLG 2269 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	16 February 2023
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth): s 36
Division:	Division 2 General Federal Law
Number of paragraphs:	44
Date of last submission/s:	15 February 2023
Date of hearing:	15 February 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Aleksov
Solicitor for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the First Respondent:	Ms Campbell
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

MLG 2269 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DYT18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	16 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The application filed on 2 August 2018 as amended on 25 January 2023 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,853.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE VASTA

Introduction

1. On 29 June 2018, the AAT affirmed a decision not to grant the applicant, DYT18, a protection Visa.  On 2 August 2018, the applicant asked this Court to review that decision.

2. The matter did not have a court date until February 2020.  On that date, Registrar Carlton made the usual orders as to filing of material but did not give the matter a firm listing date.  The matter was transferred to the National Migration Docket and ended up with me towards the end of 2022 and was listed for hearing on 15 February 2023. I subsequently made some administrative orders, by consent, on 23 January 2023.

3. Nevertheless, this means that it has taken over 4 ½ years for this Court to dispose of the application by the applicant.  On behalf of the Court, I apologise to the applicant for this inordinate delay.  It is also part of the reason that I have made this decision as quickly as I possibly could. 

4. There was, however, a benefit to the applicant from this delay.  Three weeks ago, the applicant filed an amended application which was far better in delineating what jurisdictional error was identified by the applicant.  Such an opportunity may have been denied to him if the hearing had occurred earlier.

5. The merits of this amended application have caused me to think long and hard before I arrived at my final conclusion.  I do thank Mr Aleksov and Ms Campbell for their assistance.

   Background and claims

6. The applicant is a citizen of Malaysia.  He said that he moved to Kuala Lumpur and started work as a taxi driver.  He said that, in 2014, he borrowed 50,000 Malaysian currency units from a moneylender so that he could pay the initial deposit to buy his own taxi.

7. He said that he purchased his own taxi in early 2015 for 226,000 Malaysian currency units.  He said that he signed an agreement to repay this amount on a regular monthly basis.  He said that business began to slow down later that year and he could not pay his taxi loan.  He then organised a further loan of 50,000 Malaysian currency units from another moneylender so that he could pay his repayments.

8. Not surprisingly, this caused him further problems as he now owed money to 2 different moneylenders as well as the taxi company.  He said that he was approached by one of the moneylenders to pay what he owed immediately or he would be harmed.  He said that, in September 2015, he was beaten by persons who came into his taxi and was warned that his body would be cut into pieces to feed chickens if he did not pay.

9. He said that he did his best to get money from other sources to pay what he owed but was unsuccessful.  He said that, on 10 October 2015, moneylenders came to his house and took him to discuss the loan repayment. He said that he was beaten harshly by these people. He said that he promised that he would pay the amount that he owed within 2 to 3 weeks.  He said that they told him that this was his final warning and that they would only kill him from then on.

10. He said that he could not seek help from the police.  He said the police did not interfere when it is a moneylending matter between “Ah Long” and other people.  The police and the moneylenders have a relationship where the police do not interfere in their business.  He said that everyone is afraid of the gangsters as they are very powerful and strong people.  He said that he could not move to any other part of the country because the moneylenders have gangsters throughout the country and they also have the applicant’s photo and a copy of his ID card.

11. The applicant gave more detail in a statutory declaration that he provided to the Department.

12. The applicant estimates that he owes the moneylenders upwards of 250,000 Malaysian currency units.  He said that the rule is that, if you borrow 1000 currency units, then you must repay 1300 currency units.  He said that he agreed to pay 1000 currency units a week or 4000 currency units a month and he would have all of his loan is paid off in about 2 ½ years.

    History

13. It would seem that the applicant arrived in Australia on 6 November 2015.  He had previously come to Australia twice before.  The applicant made a valid application for the protection Visa on 27 March 2016.

14. On 22 June 2016, the delegate refused the application for a protection Visa.  The applicant made an application to the Tribunal on 22 July 2016.  On 10 August 2017, the applicant was invited to a hearing.

15. The AAT hearing began on 6 September 2017.  The hearing was adjourned to 15 September 2017.  Following the hearing, the applicant made further submissions and gave further evidence to the Tribunal on 6 October 2017.  The applicant gave to the Tribunal further country information on 19 October 2017.

16. The applicant supplied a psychological report to the Tribunal on 27 October 2017 as well as further post-hearing submissions.

    The psychological report

17. As earlier noted, the applicant supplied a report to the Tribunal from psychologist, Dr Annie Cantwell-Bartl, on 27 October 2017.  It was sent under cover of an email.  In that covering email, the following was written:-

    Importantly for the Tribunal’s consideration, Dr Cantwell-Bartl has diagnosed (the applicant) with Post Traumatic Stress Disorder and a Major Depressive Episode.  His symptoms are consistent with his account of harm in Malaysia and she considers his presentation credible.  Dr Cantwell-Bartl was provided with a copy of the AAT Guidelines on Expert Evidence in preparation of her report.  She has substantial experience with trauma.

18. In her CV (which accompanied her report), the psychologist says the following regarding her experience, “I have over 20 years of experience working with vulnerable clients with a specialty in loss and trauma.”

19. In her report, the psychologist speaks of the current mental health of the applicant.  With regard to PTSD, the psychologist said that she administered a particular test.  She said that the applicant scored 77 in this test and that a cut-off score of 50 is a clinically significant score.  She said that this means that the applicant has a diagnosable PTSD.  She said that the applicant had all three symptoms of traumatic stress - arousal (intrusive thoughts), hypervigilance and numbness.

20. The psychologist wrote in her summary that:-

    In summary, on the basis of my assessment of (the applicant), I believe that (the applicant) has traumatic experiences and exhibits genuine fear regarding return to Malaysia as well as psychological symptoms consistent with those experiences.  I consider his account to be credible on the basis of my extensive experience, his presentation to me and my assessment of his account and his demeanour.

21. It is clear that, by submitting this report to the Tribunal, the applicant was making a submission that he was currently suffering poor mental health and that an experienced psychologist found that his account was credible.

    The findings of the Tribunal

22. The Tribunal assessed the credibility of the claims of the applicant in a very thorough and proper manner.  However, before making that assessment, the Tribunal dealt with the matter of the mental health assessment.  The Tribunal summarised the contents of the report at paragraph 28 of the reasons.

23. At paragraph 29 of their reasons, the Tribunal said:-

    I accept that the applicant suffers from PTSD and major depressive disorder on the basis of the writer’s experience and training.  However, I do not accept her opinions on why or how the applicant developed these disorders - her extensive experience does not extend to assessing the credibility of accounts presented to her.

24. The Tribunal then went on and made its thorough assessment of the claims of the applicant.  At paragraphs 56 and 57 of their reasons, the Tribunal said that they did not accept the claims made by the applicant and found that the applicant had fabricated them before the Tribunal in order to strengthen his overall claims.

25. The Tribunal said that they took account of the applicant’s diagnosed mental health, and his vulnerability, but the concerns, and the difficulties with the evidence of the applicant, were too critical to his claims, and too far reaching, for the Tribunal to be able to ignore the deficiency in his claims.  The Tribunal found that the applicant had manufactured the claims in order to remain in Australia.

26. The Tribunal assessed that the applicant did not fulfil the requirements under both s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth).

27. For those reasons the Tribunal affirmed the decision of the delegate.

    The present application

28. On 25 January 2023, the applicant filed an amended application which consisted of two grounds.  At the hearing, the second ground was not pressed.  This meant that the only ground upon which this application is made is the following:-

    1.The decision of the Tribunal is affected by jurisdictional error because the Tribunal failed to consider important evidence, being the psychologist’s claim to have experience in making credibility assessments.

29. This ground is based upon the report of the psychologist and the reasons given by the Tribunal (at paragraph 29 of their reasons) for not accepting the opinion of the psychologist that the account of the applicant was “credible”.  Realistically, this meant that the Court had to consider whether it was open for the Tribunal to reject the opinion that the account of the applicant was credible because the psychologist did not have extensive experience of assessing the credibility of accounts presented to her.

    What is the gravamen of the ground?

30. It was accepted that Post Traumatic Stress Disorder (“PTSD”) occurs when the brain is confronted by a circumstance with which it cannot cope.  The traumatic event then causes affects upon the brain. 

31. The reasoning of the psychologist is that the applicant displays the symptomology of PTSD.  If the events described by the applicant actually occurred, this would explain the symptomology noted by the psychologist.  This is why the psychologist said that she believed that the applicant did have traumatic experiences.  This is why the psychologist believes that the applicant exhibits genuine fear regarding return to Malaysia.  This is why the psychologist believes the applicant displays psychological symptoms consistent with those experiences.

32. The psychologist said that she considered the applicant’s account to be credible on the basis of her extensive experience (which was over 20 years of working with vulnerable clients with a specialty in loss and trauma), the applicant’s presentation to the psychologist and her own assessment of his account and his demeanour.

33. There may be many reasons why such an opinion would be immediately discounted, most of which are extremely obvious.

34. However, the only reason given by the Tribunal for the discounting of that opinion, is that the Tribunal concluded that the psychologist’s extensive experience did not extend to assessing the credibility of accounts presented to her.

35. In the hearing before me, the applicant conceded immediately that the psychologist did not ever claim that she had extensive experience in assessing credibility.  But, the applicant argues, it is implicit in the fact that the psychologist has 20 years’ experience (of working with vulnerable clients regarding loss and trauma), that such experience must, of necessity, include making assessments of credibility.

36. The applicant argued that if that is the case, then it was simply not open for the Tribunal to dismiss the opinion of the psychologist (that the account of the applicant was credible) because the experience of the psychologist did not extend to “assessing the credibility of accounts presented to her”.  If that then is the case, then the Tribunal has committed an error.  Given that it is an error that goes to the question of the assessment of credibility, and the error was made before the Tribunal went ahead and made its extensive investigations into credibility, the error would have to be a jurisdictional one.

    Is there an error?

37. Whilst it is that the applicant contends that the experience of psychologist must, of necessity, include assessment of credibility, there are degrees of what such assessment must entail.  On the material provided by the psychologist, her experience does not extend to forensic psychology.  Her experience would seem to be totally at the therapeutic level.  There is a difference.

38. For a psychologist to treat a patient, a therapeutic relationship must be forged.  The basis of the therapeutic relationship is not one in which the psychologist is concerned with ascertaining the objective truth about whatever history is given to them by the patient.  This differs from the forensic psychologist who must not only assess the history that is given by a patient, but also assess the collateral material available so that an objective assessment can be forensically given.

39. All that the therapeutic psychologist must do is to assess the history given by a patient and correlate what symptomology corresponds to that history, so that the psychologist is able to make a diagnosis which then enables treatment to begin.  To that extent, the assessment of credibility by a treating, or therapeutic, psychologist is a far different beast to the assessment that must be objectively and dispassionately made in the assessment undertaken by a forensic psychologist or psychiatrist. Or, as in this case, the Tribunal.

40. As this psychologist states, her 20 years of experience is “working with vulnerable clients with a specialty in loss and trauma”.  This may very well include 20 years of assessing of credibility, but it would only be an assessment at a very superficial level so as to be able to make a proper diagnosis taking into regard symptomology and the history given.

41. I cannot see that the 20 years of experience, as explained by the psychologist, must definitively equate to experience of a forensic kind in which collateral material is thoroughly assessed and juxtaposed to the history given by a patient.

    Conclusion

42. Having regard to this factor, I cannot see how it would not be open for the Tribunal to say of the psychologist, that “her extensive experience does not extend to assessing the credibility of accounts presented to her”.

43. Because such a conclusion is open on the evidence before the Tribunal, what was said by the Tribunal, at paragraph 29 of their reasons, cannot amount to a jurisdictional error.

44. I dismiss the application with costs fixed in the sum of $7,853.  I will also order that the name of the Minister be changed to its latest iteration.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       16 February 2023