DZAAK V Minister for Immigration & Anor [2012] FMCA 1027
An interesting new judgement has come out of the Federal Magistrates Court regarding the use of Psychologists’ reports in Migration matters.
In this case, the applicant appeared before the Independent Migration Review (IMR) board on two separate occasions. On the second sitting, the applicant raised new information with the examiner regarding the background circumstances that led to the applicant seeking refuge in Australia.
The applicant claimed that the new information was introduced at the second and not at the initial interview because of psychological issues that the applicant had since overcome after seeing a “psychologist”.
The applicant sought to substantiate the inclusion of new information by submitting a Counsellor’s Report which outlined that due to psychological issues at the time of the previous interview, the applicant was not mentally capable of clearly relaying and recalling the events leading up to the applicant’s departure from his country of origin. Importantly, the Counsellor’s Report was proclaimed as a Psychologist’s Report and as such, it was put forth by the applicant’s council as expert material.
The so-called “expert material” did not impress the Federal Magistrates Court (FMC) which distinctly pointed to the strict requirements of Expert Witnesses that is set out in the Federal Court Practice Note CM7 on Expert Witnesses. Not only was the Councillor’s report incorrectly defined as a Psychologist’s report, but in any case, an “expert” in any particular field is required to properly particularise their training, study or experience by which they have acquired such expert knowledge. As the Councillor was not a Psychologist, the nature and extent of her expertise could not be precisely defined or determined and consequently the applicant’s case was dismissed.
The FMC found that the Councillor’s report did not add weight to the applicant’s claims that new information should be admissible due to psychological issues. In any case, regardless of the fact that the report was not of an expert nature, its relevancy would remain a decision for the IMR to make.
Hence, what is evident from this decision is that the use of an expert’s report is not a fool proof mode of substantiating an applicant’s claims. An examiner is entitled and expected to assess and reflect on the surrounding circumstances in determining what weight should be placed on an expert’s report.
Summation
It is not unusual that some applicants appearing before the IMR board seeking Refugee status have experienced a high level of trauma or distress that has led to the applicant seeking refuge in Australia.
Applicants will need to bear in mind how imperative it is that they discuss all matters relating to their circumstances of migration, including and particularly those matters that resonate on an emotional and psychological level or, they may not be awarded another opportunity to do so and consequently risk their application failing in light of inconsistent and conflicting claims which fracture the truthfulness of their application.
Should you have any Immigration Law queries, call our Principal Solicitor George Hanna on (02) 9587 0458 or send an email to ghanna@gmhlegal.com to arrange a free consultation.