Immigration Law Conference Sydney, 24-25 February Workshop for Refugee Advocates

What is the relevance of a protection applicant’s alleged history of psychological trauma? It may affect the applicant’s capacity to prepare their case and participate in the hearing It may be that psychological evidence should be submitted

Capacity to prepare the case and participate in a hearing It is the specific consequences of trauma not the trauma itself that is significant It is rare that capacity is compromised to the point that a hearing cannot be conducted Very significant disruption to ability to attend, respond relevantly and recollect personal history (active psychosis; severe dissociative disorder; severe depression or head injury) It is much more common that a degree of cognitive impairment due to mental illness or trauma related avoidance or partial amnesia affect the way the applicant participates.

The role of psychological evidence Is rarely determinative: is evidence of an integer: Eg Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 Is occasionally crucial: Minister v SCAR FCFCA 2003 (cf Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 (10 May 2010; SZQBN v Minister FCA 2014; “The fundamental difficulty of running a case dependent on evidence of a person with an impairment should not be confused with the requirements of ensuring a real opportunity to be heard” – MZYMC v Minister FCC 2014. May be significant where psychological evidence is material to the decision: cf MIBP v MZYTS [2013] FCAFC 114: “the fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of the error”

The role of psychological evidence, continued Can be important evidence in the following areas: Corroborative of trauma history Impediments to participation (short of incapacity) Reasonableness of relocation: MZYQU v Minister FCA 2012 Reasonable explanation for delay in filing for judicial review: MZZJY v Minister 2014 FCA.) Whether the claimed harm amounts to serious or significant (psychological) harm: SBTF v Minister FCA 2007; SZKQV v Minister FMCA 2008

The role of psychological evidence, continued Explaining aspects of applicant’s presentation liable to adversely affect credibility: Late disclosure (NOTE s 423A) Inconsistencies and revisions of claims Demeanor Ability to disclose traumatic material

The quality of psychological evidence The strength of psychological or psychiatric report is diminished when: It appears to be advocating for the applicant; It is not written impartially and dispassionately; It recites the applicants claims or the history provided in the statutory declaration; It makes claims about causation or prediction that go beyond what psychological evidence can say – eg the applicant will be severely harmed if repatriated; the PTSD was caused by the applicant’s imprisonment It is not written by someone suitably qualified;

The quality of psychological evidence, continued The author goes beyond their field of expertise or addresses ultimate issues: The applicant will suffer persecution The applicant will be severely traumatised by repatriation/ is too unwell to relocate (in the absence of contextual evidence) The applicant holds certain beliefs (religious adherence; conscientious objection); is of this sexual orientation; is of good character… Symptoms and impairments are stated in general terms: ‘she suffers from post traumatic memories’; his memory is impaired’; without providing sufficient specificity

The working relationship between the migration agent and the provider of psychological evidence Plenty of notice is generally needed if a psychological report is to be produced; Note implications of author of psychological report being a treater vs independent assessor AAT practice direction on expert evidence (the declaration and letters of instruction) opinion vs factual evidence The availability of expert independent assessors

The working relationship between the migration agent and the provider of psychological evidence, continued With client’s consent the statutory declaration should be shared with the report author to avoid inconsistencies; To allow the reference to be made to it in the personal history section of the report and avoid recitation of claims; To allow the report author, with the client’s consent, to provide the migration agent with additional information There are risks of inconsistencies when statutory declarations and psychological reports are written many months apart (is happening with legacy case load cases) Psychological treatment may assist the applicant’s capacity to articulate their claims and fully participate in the hearing However especially for severely traumatised individuals there is a tension between rapid disclosure in order to provide a detailed statutory declaration and what is therapeutically indicated.

Some useful commentaries and guides: UNHCR - The Istanbul protocol : A manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment International Association of Refugee Law Judges’ Guidelines on the Judicial Approach to Expert Medical Evidence Hunter,J; Steel,Z; et al. Managing and Understanding Psychological Issues Among Refugee Applicants UK’s Freedom from Torture Reports: ‘Proving Torture, Demanding the Impossible, The Home Office’s mistreatment of expert medical evidence Nov 2016 AAT guidelines - Expert and Opinion Evidence Guideline; Guidelines on Assessment of Credibility; Guideline on Vulnerable Persons. Canadian Immigration and Refugee Board - Assessment of Credibility in Claims for Refugee Protection