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MIGRATION - judicial review - protection visa - expert medical and psychological evidence - admissibility of expert - whether existence of medical conditions consistent with abuse - credibility of witness - whether taken into account - jurisdictional error - when failure to take into account relevant material amounts to jurisdictional error

Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC

Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 268 (27 August 2002)
Last Updated: 4 September 2002


FEDERAL COURT OF AUSTRALIA
Thirukkumar v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 268


MIGRATION - judicial review - protection visa - expert medical and psychological evidence - admissibility of expert - whether existence of medical conditions consistent with abuse - credibility of witness - whether taken into account - jurisdictional error - when failure to take into account relevant material amounts to jurisdictional error

Migration Act 1958 (Cth) s 476(1)(b), 476(1)(c), 476(1)(e)

Craig v South Australia (1995) 184 CLR 163 discussed

Khan v College of Physicians and Surgeons of Ontario (1992) 94 DLR (4th) 193 considered

Lowery v The Queen [1974] AC 85 followed

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed

Murphy v The Queen (1989) 167 CLR 94 followed

R v B (an accused) [1987] 1 NZLR 362 considered

R v B.(G.) (1988) 65 Sask R 134 followed

R v FEJ (1989) 53 CCC (3d) 64 considered

R v French (1977) 37 CCC (2d) 201 followed

R v Turner (1975) 60 CrAR 80 followed

Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 applied

Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 applied

Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255 referred to

NAGAMUTHU RANJINIDEVI THIRUKKUMAR and RAJANAYAGAM THIRUKKUMAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 774 OF 2001

DRUMMOND, COOPER AND FINKELSTEIN JJ

MELBOURNE

27 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 774 OF 2001





ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA


BETWEEN:
NAGAMUTHU RANJINIDEVI THIRUKKUMAR and RAJANAYAGAM THIRUKKUMAR

APPELLANTS


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, COOPER AND FINKELSTEIN JJ


DATE OF ORDER:
27 AUGUST 2002


WHERE MADE:
MELBOURNE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal, including any reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 774 OF 2001





ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA


BETWEEN:
NAGAMUTHU RANJINIDEVI THIRUKKUMAR and RAJANAYAGAM THIRUKKUMAR

APPELLANTS


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, COOPER AND FINKELSTEIN JJ


DATE:
27 AUGUST 2002


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
DRUMMOND J:

1 I have had the benefit of reading in draft the reasons of Cooper and Finkelstein JJ for concluding that the appeal should be dismissed. I agree with their conclusion. My reasons for doing that follow.

2 As Cooper and Finkelstein JJ observe, the grounds of appeal relate solely to the manner in which the Tribunal dealt with two expert reports, one from a doctor, Dr Kouteris, the other from a psychologist, Ms Curry. Both expressed the opinion, properly the subject of expert opinion evidence that would, if relevant to some issue, be admissible in a court bound by the rules of evidence, that the appellant currently has a post traumatic stress disorder. Ms Curry, however, went on to express the further opinion, in her report under the heading "Conclusions":

"Mrs Thirukkumar's present difficulties, particularly her somatic symptoms, avoidance, and psychosexual difficulties, are highly and specifically consistent with her history of trauma ...
I believe that Mrs Thirukkumar's personality and current coping strategies are also consistent with the major life events that she has experienced as traumatic and largely outside her control ...

The combination of these factors, taken together, is highly consistent with a history of trauma and imprisonment, and provides evidence in support of the substantial nature of Mrs Thirukkumar's claims for protection."

3 The issues raised for determination by the appellant in the appeal are similar to those raised by the appellant in Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255, another case heard by the Full Court as now constituted. Those issues are, firstly, whether the learned primary judge erred in not finding that the Tribunal's decision was flawed with reviewable error within s 476(1)(b), (c) or (e) the Migration Act 1958 (Cth) because of the Tribunal's failure to recognise and to deal with the psychological and medical evidence before it as expert evidence rather than as mere hearsay and, secondly, whether the learned primary judge erred in failing to find reviewable error within one or other of these provisions of the Act because of the Tribunal's failure to take into account relevant material, viz, that same psychological and medical evidence. These contentions are based on the statement in [82] of Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. I have explained in Subramaniam my understanding of this statement. I do not think the appellant's real complaint can be described as a complaint that the Tribunal failed to take into account or failed to give sufficient weight to the practitioners' assessment of the appellant's account of her prior history as a truthful account.

4 Counsel for the appellant acknowledged that the Tribunal did make some references to these two expert reports in its reasons. But counsel submitted that the Tribunal did not take into account Dr Kouteris' opinion or Ms Curry's opinion that there was a high degree of consistency between the psychological symptoms the appellant displayed when seen by them and the history of trauma which she gave to them. It was in reliance on this same history of ill-treatment that the appellant contended she had suffered Convention related persecution in Sri Lanka: it was the foundation for her claim to a protection visa.

5 In its reasons, the Tribunal said:

"Given the above discussion, the Tribunal is not satisfied that the applicant was detained as claimed for 14 months either in Thandikulam or Thalladi. This finding does not dismiss the claim that the applicant has made about being raped twice. The Tribunal simply notes that its finding is related to her claimed detention in Thandikulam and other camps during that period. The Tribunal concludes that the applicant was not raped in detention. There is no other evidence before the Tribunal which would allow it to make a finding that rapes did occur and if so that they occurred for a Convention reason. The reports from medical practitioners and other health professionals represent a reflection of the applicant's own recounting of her story, indeed the applicant may well have been subjected to rape at some point and in some location but given the findings above, the Tribunal is not satisfied that if rapes did occur they are related to a reason under the Refugees Convention."
6 It is apparent that the Tribunal did not place any weight on the opinions expressed by the two experts as to the appellant's truthfulness. According to the rules of evidence, those particular opinions are not properly the subject of expert opinion since they are not opinions that can only be reached by persons with special expertise. But the Tribunal is not bound by the rules of evidence and could have given weight, if it chose, to the expert's assessments of the appellant's veracity. It chose not to place any weight on that material and no complaint can be made about that.

7 But Ms Curry expressed another opinion, properly the subject of expert evidence, about there being consistency between the appellant's current symptoms and her history of trauma. (Dr Kouteris was of similar opinion, though his report is less cogently expressed than Ms Curry's.)

8 Central to the appellant's claim to a protection visa was her evidence that she had been twice raped while in detention in Sri Lanka. The Tribunal was not prepared to reject her claim that she had been raped. But it was not prepared to find that the appellant had been detained or that it was while she was detained that she was assaulted. It is not clear from the passage in the Tribunal's reasons set out above whether, in arriving at this factual conclusion, the Tribunal had regard to the expert opinion evidence of Ms Curry that the appellant currently displays symptoms consistent, or more accurately "highly and specifically consistent", with the appellant's history of trauma, which included her being twice raped.

9 It may be that the Tribunal did take into account Ms Curry's opinion but concluded nevertheless that the appellant's account of being ill-treated by the authorities in Sri Lanka was implausible. The Tribunal said that: "The reports from medical practitioners and other health professionals represent a reflection of the applicant's own recounting of her story, indeed the applicant may well have been subject to rape at some point in some location ...". This suggests that the Tribunal may have been prepared to accept the appellant's claim to having been raped because there was expert opinion evidence to the effect that she was currently displaying symptoms consistent with such a history, even though it was not prepared to accept, on a consideration of all the evidence, that the rapes occurred in circumstances that amounted to Convention related persecution.

10 If, however, it be assumed in the appellant's favour that the Tribunal did not take into account this particular expert opinion as to consistency of her current condition and her stated history in the course of finding the facts upon which her entitlement to a protection visa depended, that does not, in the circumstances of this case, show any reviewable error of the kind alleged. Ms Curry's expert opinion as to there being consistency between the appellant's present symptoms and her history of ill-treatment in Sri Lanka is not merely an opinion that the appellant is a credible witness. The existence of a stress disorder opined to be consistent with her claimed history is supportive of her claim that she did suffer the ill-treatment she said she had. It is supportive of her claim that she was persecuted for the same reason that, if there were, eg, material showing that those usually in close contact with her in Sri Lanka did not see her during the time she claimed she was detained, that material would be supportive of her claim. If the Tribunal did ignore that particular opinion evidence, it failed, in finding the facts, to have regard to evidence material to the factual issue it had to consider, viz, did she in truth suffer the ill-treatment at the hands of the authorities in Sri Lanka that she claimed?

11 But such a failure does not, in the context of this case, constitute a reviewable error in the Tribunal's decision within s 476(1)(b), (c) or (e) the Migration Act as that concept is explained in the passage in Yusuf upon which the appellant relies. I incorporate here what I said in Subramaniam about this passage.

12 There was no suggestion made by the appellant that the Tribunal made any error in understanding the legal principles to be applied to the facts found by the Tribunal in order to resolve the question of whether she was entitled to the protection visa she sought. The Tribunal set out its understanding of the relevant law at pp 2 to 4 of its reasons. No criticism was directed to what it there said.

13 Even if the Tribunal failed to take into account Ms Curry's opinion as to the consistency between the appellant's current symptoms and her history of ill-treatment and thus ignored evidence that supported her in what she said had happened to her in Sri Lanka, that was no more than an error of fact finding not resulting from any error of law. It follows that, though the Tribunal's ultimate decision may be flawed with factual error, its decision nevertheless was made in accordance with the relevant law and so cannot be said to be infected with jurisdictional, ie, reviewable, error within any of the provisions of s 476(1) relied upon.

14 For these reasons, the appeal should be dismissed.

15 The joint judgment also examines the rules of evidence that govern the admissibility, in tribunals bound by those rules, of expert opinion evidence as to the veracity of a witness.

16 I agree that, save only perhaps in very exceptional cases, experts are not permitted by the rules of evidence to offer an opinion as to the veracity of any witness. It is difficult to conceive of a case heard in a tribunal bound by the rules of evidence in which an expert could properly be permitted to testify, not as to the existence of a medical or other condition in the particular witness consistent with the factual account given in evidence by the witness having occurred - the proper subject matter of expert opinion evidence - but to testify directly that the particular witness was credible, or not credible, as the case may be.

17 The not uncommon situation in which a medical practitioner, psychiatrist or psychologist gives evidence in a court to the effect that a person is suffering from an identifiable medical or psychological condition that is consistent with the patient's assertions as to past events are not examples of cases in which experts have been permitted to testify as to the veracity of witnesses. Such cases do not, I think, involve the admission of opinion evidence as to the veracity of a witness, though that opinion evidence bears upon the credibility of a particular witness in asserting that those events actually occurred and is relevant and thus admissible because it has that probative effect. Much evidence, including much circumstantial evidence, is relevant and admissible for that reason, ie, because it is supportive of a witness' account of past events.

18 Psychologists have been permitted, in a number of criminal cases, to give opinion evidence of matters within their expertise which bolsters the credibility of the accused's own exculpatory evidence or sometimes the credibility of a prosecution witness' evidence. In Lowery v The Queen [1974] AC 85, the Privy Council held it to be permissible for a psychologist to give opinion evidence as to the personalities of two accused, K and L, each of whom sought to blame the other for the murder. The effect of the psychologist's evidence was that their different personalities were consistent with K's evidence that L was the sadistic killer and he the powerless observer and inconsistent with L's evidence that K was the killer and he the fearful bystander. In Murphy v The Queen (1989) 167 CLR 94, where an accused denied making a confession, a psychiatrist was permitted to give evidence that his levels of comprehension and literacy skill were such as to make it unlikely that he could have made the confession the police said he had. In neither case did the psychologist express an opinion as to the particular witness' credibility. In each, the expert's evidence was confined to expressing an opinion, within his special area of expertise, that was formed on the basis of the results obtained from the application by the expert to the particular witness of standard psychological tests as to the witness' personality characteristics or level of intellectual functioning. The evidence was admissible, firstly, because it was properly the subject of expert opinion in so far as it dealt with matters beyond the capacity of lay people to assess and, secondly, because it was relevant evidence: the existence of the opined conditions was consistent with the claims made by the particular accused being true. It is this distinction between an opinion as to the credibility of a witness, which an expert is not permitted to give, and an opinion that a witness exhibits certain psychological or medical characteristics assessable only by a skilled person, which opinion is relevant and thus admissible because the existence of those characteristics supports the witness' account, that was correctly drawn in the cases referred to by Cooper and Finkelstein JJ, R v B (an accused) [1987] 1 NZLR 362 and R v FEJ (1989) 53 CCC (3d) 64.

19 FEJ is a difficult case. There, a psychologist was asked to give evidence whether the daughter was being truthful when she retracted her complaint of sexual abuse by her father. He said her letter was fairly typical of the recantations commonly seen among children who have been sexually abused when they realise the problems that their revelations have caused; he said that this letter would be a typical one in a textbook on child sexual abuse. This evidence was held to be admissible for the reasons stated by Galligan JA in the passage set out in [36] of the joint judgment and for the further reason that "properly qualified expert opinion evidence about the general behavioural and psychological characteristics of child victims of sexual abuse" satisfies this test of admissibility. In making a false recantation, the witness was displaying a kind of behaviour typical of child abuse victims. The psychologist also said that in his experience he had not found one case in which a child was being truthful when recanting. Galligan JA said of this evidence that it "was clearly inadmissible". The appeal was nevertheless dismissed because the case was tried by a judge without a jury and the judge had not relied on that particular opinion; Galligan JA therefore held that no prejudice was occasioned to the accused. But it is difficult to see any difference between the two pieces of evidence so far as their admissibility is concerned, as opposed to whether discretionary considerations might justify the admission of one but not the other. Both are the opinion of the expert as to behaviour patterns commonly exhibited by victims of claimed sexual abuse.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.




Associate:

Dated: 27 August 2002

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V774 of 2001




On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:
NAGAMUTHU RANJINIDEVI THIRUKKUMAR and

RAJANAYAGAM THIRUKKUMAR

Appellants


AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent




JUDGES:
DRUMMOND, COOPER and FINKELSTEIN JJ


DATE:
27 AUGUST 2002


PLACE:
MELBOURNE





REASONS FOR JUDGMENT

COOPER and FINKELSTEIN JJ:

20 The appellants, husband and wife, are Tamils from Sri Lanka and claim asylum in Australia on the basis that they will suffer persecution on the grounds of imputed political opinion and race if they are required to return to Sri Lanka. Their applications for protection visas were refused by a delegate of the Minister, and on review by the Refugee Review Tribunal. An application to a single judge to review the tribunal's decisions also failed. We are only concerned with the wife's appeal. Her husband will be entitled to a protection visa if her appeal is successful.

21 The substance of the appellant's claim (for simplicity we will refer to the first appellant as the appellant) to be a Convention refugee is as follows. The appellant became involved in the activities of the Liberation Tigers of Tamil Eelam (the LTTE), a separatist group that is waging a bloody civil war to establish an independent state in the northern part of the island. She claimed that she was working as a nurse at the Jaffna base hospital in 1987 when the Indian Peace-Keeping Forces (the IPKF) "went on a rampage under the orders of [the] Indian government to wrest control of Jaffna ...[and] started to shoot everybody at the hospital thinking that all the doctors and nurses were LTTE members". Following this incident the appellant relocated with her boyfriend (who later became her husband) to Colombo, where he started a printing business.

22 In 1990, the appellant says she became concerned that there would be riots in Colombo and decided to leave the city and head to the north of the country. Her husband could not leave his business, so she travelled alone. When she arrived at a checkpoint in Thandikulam, the appellant was arrested as a suspected LTTE collaborator and was held in detention for around fourteen months. During her detention she says she was slapped, shaken by the hair, interrogated and raped. The appellant says that she was released in December 1991, but was subjected to two further periods of detention during the course of the following four years. The second detention occurred when all para-medical personnel at the hospital in which she was working were arrested following a bomb explosion at Jaffna which killed several members of the security forces. In her protection visa application, the appellant said that she was released from this detention "during the last week of April 1993", though when interviewed by the delegate, the date mentioned was the last week of May. The third detention took place on 20 October 1995, at which time she was held for around a month. The appellant was released from detention on both occasions due to the efforts of her husband.

23 On 12 May 1995 the appellant obtained a passport. The passport was endorsed with her "name after marriage". This entry was made on 27 October 1995 for the purpose, so she said, of making it easier to leave Sri Lanka. The appellant and her husband arrived in Australia on visitor visas in December 1995 and, in January 1996, they applied for protection visas.

24 Before we consider the grounds of review it is necessary to give a short account of how the tribunal dealt with the appellant's claims. The tribunal accepted that the appellant was of Tamil ethnicity and had spent four years in the north of Sri Lanka in her youth. In relation to the attack on the Jaffna hospital, the tribunal accepted that this attack had occurred, but noted that the appellant had originally claimed that the incident occurred in August 1987, while commentators had identified the date as 21 October 1987. Although later submissions of the appellant referred to the attack occurring in October, the tribunal did not accept the change of dates and found that the appellant had, in fact, left Jaffna in August 1987 and therefore had not been present at the hospital during the attack.

25 The appellant stated that she had been married according to the Hindu religion during the last week of October 1987. Her passport was not changed to add her married name until 27 October 1995. This was a time at which, according to her evidence, the appellant was in detention. There were several accounts given as to how the name change was effected. First, the appellant said that her husband had taken her passport to the immigration authorities. Later, she stated that a travel agent had made the alterations illegally to enable the appellant and her husband to flee Sri Lanka. When the matter was before the Minister's delegate, enquiries were made of the Sri Lankan Embassy in Canberra, which confirmed that if any official alteration was made to a passport, the passport holder would be required to attend the passport office unless he or she was too ill or disabled. For this reason the tribunal doubted that the appellant had been in detention at the time her passport was altered. So, while it appears that the tribunal accepted that the appellant had been detained, it did not believe that her detention was for as long as claimed. As regards the reason given for the name change to her passport, it did not believe that simply adding the appellant's married name would facilitate her and her husband's escape from Sri Lanka.

26 The tribunal found it implausible that in October 1990 the appellant would have left her husband in Colombo and travel to the north of Sri Lanka alone. Neither the appellant nor her husband was born there and the country information to which the tribunal had regard indicated that the north of the country was a particularly dangerous place during 1990. Moreover, the appellant claimed that when she was stopped at the checkpoint at Thandikulam, she had informed the security forces that she lived in Jaffna. According to the tribunal, this was as odd thing to have done as it would have increased her danger. The tribunal also pointed to inconsistencies in the appellant's evidence, namely that in a document appended to her protection visa application she had claimed that her first period of detention did not come to an end until "the Christmas period of 1991" but in the application form itself she stated that she commenced work at the Mannar Geriatric Hospital in June 1991. The tribunal said "this indicates that she was either not in detention up to December 1991 or not working at the Geriatric centre in June 1991". The tribunal concluded that "the [appellant] was not detained in Thandikulam in 1990".

27 The tribunal also viewed with concern several "inconsistencies" in the appellant's story about her other periods of detention, especially the information she gave concerning the timing of her arrest and release. On balance, the tribunal accepted that the appellant had been detained in 1995, but not that she was detained in 1992. It concluded that "the [appellant] does not have a history of LTTE support such that would attract the interest of the Security Forces, nor has she the profile of a Tamil in Colombo who would attract the interest of the Security Forces...[This] indicates that the [appellant] does not face a real chance of future persecution for reasons of either her ethnicity or political opinion."

28 The appellant did not at first instance, and does not on appeal, challenge any of the findings that go to her credibility. The grounds of appeal relate solely to the manner in which the tribunal dealt with two reports that were before it, one a report of a doctor, Dr Kouteris, dated 25 March 1996 and the other a report from a psychologist, Ms Curry. Not long after her arrival in Australia, the appellant consulted Dr Kouteris for a medical examination. A short report was prepared by the doctor. More recently she had been assessed by Ms Curry who prepared a report on her psychological condition. This report is undated, but was evidently sent to the tribunal by facsimile transmission on 9 March 2000. It was said that the tribunal's decision was made without jurisdiction (s 476(1)(b)) of the Migration Act 1958 (Cth)), or without authority (s 476(1)(c)) or was affected by error of law (s 476(1)(e)) on the ground that it had failed properly to take these reports into account or had failed to treat this material as expert evidence rather than as hearsay.

29 In support of her contentions, the appellant relied on a passage from Craig v South Australia (1995) 184 CLR 163, cited with approval in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, 21. The High Court said (at 179):

"If [the tribunal] falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
The meaning of Yusuf was considered in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, where Allsop J concluded that:

"Yusuf does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. `Relevant' for this purpose means that the decision-maker is bound by the statute or by law to take this into account".
30 Accordingly, to make out her ground of appeal the appellant must show that the tribunal was required, but had failed, to take the reports into account. To deal with this issue it is necessary to examine what is contained in the reports. In his report, Dr Kouteris first sets out the appellant's "history of torture/trauma", presumably based on the appellant's own recounting of the events. He notes that the appellant suffers from recurrent nightmares, a fear of being touched on the face, difficulty engaging in sexual intercourse, pains in the chest and back and a fear of people in uniforms. He appears to have found no actual physical symptoms but recommends that the appellant be referred for counselling. Dr Kouteris concludes with the following observation under the heading: "Assessment of Current Health Status and Illness":

"Physical health - chest pain and pain in back appears to be secondary to injuries sustained during period. Mental health - nightmares, post traumatic stress, difficulty with physical intimacy, and anxiety are all directly related to the period."
31 The psychologist, Ms Curry, had apparently seen the appellant on several occasions. Her report is based not only on her interviews with the appellant, but also on case-notes from her former case manager at The Victorian Foundation for Survivors of Torture Inc., a letter from a crisis centre, and documents, transcripts and decision records relating to the appellant's protection visa application. After describing the appellant's behaviour during the interviews, Ms Curry sets out a history of the appellant's experiences as recounted by the appellant, including in particular the events which the appellant would characterise as the persecution in Sri Lanka. She then considers the symptoms that were "demonstrated or reported" by the appellant at the interviews. She notes that the appellant had suffered dramatic weight loss over a short period of time and had made a suicide attempt. She records that the appellant exhibits post-traumatic stress symptoms, such as avoidance, difficulty with disclosure, reliving of her experiences, dissociative episodes and sleeping difficulties. Ms Curry states that the appellant was suffering psychosomatic pain and severe depression, indicated by a lack of interest in living, social withdrawal and suicidal tendencies. Ms Curry concludes that "[the appellant's] present difficulties, particularly her somatic symptoms, avoidance, and psychosexual difficulties, are highly and specifically consistent with her history of trauma." Later, in another passage, she states that: "The combination of [the difficulties experienced by the appellant] is highly consistent with a history of trauma and imprisonment, and provides evidence in support of the substantial nature of [the appellant's] claims for protection."

32 The appellant's complaint is not that the tribunal failed to have regard to those parts of the two reports where the practitioners set out their assessment of the appellant's state of health. Those parts have no relevance to her claim for refugee status. Her real complaint is that the tribunal failed to take into account, or failed to give sufficient weight to, the practitioners' assessment of the truthfulness of the appellant's account of her prior history, for in each report the practitioners did form the opinion that the appellant had given a truthful account of that history.

33 This submission requires us to say a word or two about expert testimony. In a courtroom expert evidence is received as a recognised exception to the opinion rule. Expert evidence is given to provide the trier of fact (judge or jury) with the necessary technical or scientific basis upon which to assess the evidence that has been presented. Generally, expert evidence is only received when the trier of fact cannot form his or her own conclusions on a particular subject without help. If the trier of fact is able to do so, then the opinion of an expert is unnecessary or superfluous: R v Turner (1975) 60 CrAR 80, 83; Evidence Act 1995 (Cth) s 79.

34 In most cases the expert will lack personal knowledge of the matters in issue. He or she will often be asked to form an opinion on disputed facts. It is not for the expert to resolve the facts that will be the basis of his opinion, but to give evidence on the assumption that the facts upon which the opinion is based are true. In R v French (1977) 37 CCC (2d) 201, a psychiatrist was called to give evidence that a Crown witness had a character disorder and that she was quite capable of lying under oath. In concluding that the evidence should be excluded MacKinnon JA said (at 211):

"The assessing of a witness' credibility is a matter peculiarly within the province of a jury and it is only in unusual circumstances, which do not obtain here, that that credibility can be attacked by the calling of expert medical evidence."

See also Khan v College of Physicians and Surgeons of Ontario (1992) 94 DLR (4th) 193, 215 ("It is well-established that experts, save in very exceptional cases, may not offer an opinion as to the veracity of any witness").

35 However, there will be occasions when it is permissible to call expert evidence that will corroborate the credibility of a witness. The occasions on which this type of evidence can be led will be few, and they are likely to be limited to cases such as where a medical practitioner, psychiatrist or psychologist is asked to give evidence to the effect that a patient's condition is consistent with the patient's asserted facts about the past events which give rise to the condition. Two cases are illustrative. The first is R v B (an accused) [1987] 1 NZLR 362, a criminal case where the accused was charged with the indecent assault of and incest with a twelve year old girl. The Crown sought to call a psychologist to establish, among other things, the creditworthiness of the complainant. The trial judge refused to receive the evidence and his decision was affirmed on appeal. Casey J said (at 373):

"Within the accepted limits for the admission of corroborative evidence there may accordingly be room in this case for the psychologist to give expert evidence of her observation and testing of the complainant, with a view to saying whether her condition and reactions are consistent with those of other children of a corresponding age who have been sexually abused. She would need to describe the tests she undertook and the reactions of those other children from her own experience and she may have recourse to recognised specialist literature to confirm her opinion. Such evidence could include statements by the complainant of her feelings or perceptions about herself or others, but only as proof of the fact that she made them. But outright hearsay, and the repetition of the allegations against the accused, and any indication of the psychologist's own view of credibility must be excluded. It is essential that the scientifically objective character of such evidence be preserved if it is to be of any value. In this way the jury may be helped by more orthodox means than those proposed in reaching their own conclusions about the complainant's credibility and the guilt of the accused, without having their task pre-empted by experts."
See also McMullin J at 367-368.

36 The second case is R v F.E.J. (1989) 53 CCC (3d) 64, a decision of the Ontario Court of Appeal, another criminal case. The accused was charged with the sexual assault of his daughter. The Crown called a psychologist with experience in the sexual abuse of children. The psychologist was asked to give evidence whether the daughter was being truthful when she retracted her complaint. He testified that in his experience such a retraction was never truthful. An appeal from the conviction was dismissed. The Court of Appeal considered the permissibility of the use of expert evidence to establish the truthfulness of a party. Galligan JA, who delivered the judgment of the court, said that an examination of the Canadian cases where this type of evidence had been admitted indicated that it was limited to situations where it was "used to show that certain psychological and physical conditions could be consistent with sexual abuse. If those conditions were proved to exist in a case, they could tend to support the child's evidence that there had been sexual abuse". However, he said "it is not admissible simply to bolster the credibility of the principle Crown witness." He explained the distinction between the two classes of case in the following way (at 70):

"The distinction between those two circumstances may not always be easy to make. At first blush it may appear that there is not much of a difference between admitting expert opinion evidence to bolster credibility and admitting it to show that certain psychological and physical conditions are consistent with sexual abuse and thus capable of supporting the testimony of the child witness. The difference is that in the first case the witness gives his or her expert opinion about truthfulness. In the second, the evidence is only admitted as tending to show a condition consistent with sexual abuse and, therefore, as being capable of supporting the witness's testimony. It remains for the court to decide as a question of fact whether the psychological or physical conditions, as interpreted by the expert, do in fact support the testimony of the child witness. The distinction is crucial and must always be borne in mind."
See also R v B.(G.) (1988) 65 Sask R 134, 148 ("I see no objection to expert testimony which does nothing more...than show that psychological and physical conditions which occurred were consistent with sexual abuse, a factor which might otherwise be nothing more than conjecture or speculation on the part of the judge or jury").

37 Applying these principles to the facts at hand, if the tribunal were bound by the rules of evidence, Dr Kouteris' report would not be admitted. Ms Curry's report is borderline, and might be received to show that the appellant's condition is consistent with the abuse that she allegedly suffered. How much weight the trier of fact would attribute to this opinion is, of course, another matter. The trier of fact must ensure that the case does not become a "trial by psychiatrists": R v B (an accused) at 368.

38 We recognise that here we are not dealing with a tribunal which is bound by the rules of evidence. So it is, we suppose, possible that the tribunal might receive evidence of the kind that appears in the two reports, notwithstanding that the medical practitioners purport to draw conclusions about the appellant's truthfulness. It is unlikely, however, that the tribunal would be much assisted by that evidence. More importantly, if the evidence is ignored, or given insignificant weight, the tribunal will not fall into error. It is not for a court to dictate to the tribunal how much weight it must give to a particular piece of evidence. As Deane J said in Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 in the context of a failure to take relevant matters into account as a ground of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) at 375:

"t is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."
See also McPhee v S. Bennett Ltd (1935) 52 WN (NSW) 8, 9.

39 Having said that, we do not accept the premise upon which the appellant's argument is founded. That is to say, we reject the submission that the tribunal failed to consider the opinion given by the two practitioners. It considered that evidence for the purpose of assessing the appellant's claim that she had been raped while in detention. This appears from the following passage in its reasons:

"The Tribunal concludes that the [appellant] was not raped in detention. There is no other evidence before the Tribunal which would allow it to make a finding that rapes did occur and if so that they occurred for a Convention reason. The reports from medical practitioners and other health professionals represent a reflection of the [appellant's] own recounting of her story, indeed the [appellant] may well have been subjected to rape at some point and in some location but given the findings above, the Tribunal is not satisfied that if rapes did occur they are related to a reason under the Refugees Convention."

40 Although it is not necessary for our decision, we wish to add one point, lest it be thought that we condone one of the comments made by the tribunal. When considering the report of the doctor, the tribunal said:

"The Tribunal finds that the time elapsed from arrival and the time elapsed from the [protection visa] application to the consultation with Dr. Kouteris is not consistent with the [appellant's] claims that she fled Sri Lanka in fear of her life and under enormous psychological discomfort because of what had happened to her."
The appellant arrived in Australia in late December 1995. She applied for a protection visa on 25 January 1996. Dr Kouteris examined the appellant on 25 March 1996. It seems to us that no adverse inference can be drawn against the appellant on the supposed lapse of time between arrival in Australia and seeking medical treatment. It is not surprising that a person who arrives in a country having suffered at least one period of detention (as the tribunal found), who may well have suffered other traumatic experiences such as rape, who cannot speak English and is struggling to adjust to her new situation, and who may have to overcome religious or cultural difficulties with speaking to a doctor about her experiences, may take some time before taking the step of visiting a doctor. However, the unfortunate and plainly erroneous comment by the tribunal, while demonstrating at least a lack of sensitivity, and perhaps something worse than that, does not establish error of law.

41 There being no other basis for concluding that the tribunal has fallen into error, the appeal will be dismissed with costs.


I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Cooper and Finkelstein.




Associate:

Dated: 27 August 2002

Counsel for the Appellant:
Mr A Krohn






Solicitor for the Appellant:
Gandhi Associates






Counsel for the Respondent:
Ms M Kennedy






Solicitor for the Respondent:
Blake Dawson Waldron






Date of Hearing:
27 February 2002






Date of Judgment:
27 August 2002


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