Federal Circuit Court (FCC) Dismissing Application for Judicial Review

The case’s court timeline is pretty lengthy but this is the appeal from Federal Circuit Court (FCC) dismissing an application for judicial review by the Administrative Appeals Tribunal (AAT) affirming decision not to grant the appellant family protection visas.

The question in contention is whether AAT failed comprehensively to engage in a meaningful consideration of the psychiatric evidence in making adverse credibility findings including deliberate dishonesty, despite ostensibly accepting the medical opinion and psychiatric diagnosis. Clearly, FCA allowed the appeal due to the fact that AAT ignored the symptoms of underpinning diagnosis, failure to comprehensively and meaningfully regard to the psychological report by the expert.

if the ramifications of accepting the diagnoses and their symptoms had been considered in a meaningful way, there was a real possibility that the AAT may have reached a different decision and therefore the error was material. Indeed, during the line of questioning of Mr [AFD] about this issue some 45 minutes into the hearing and prior to any break, Mr [AFD] expressly referred to problems in recalling the incident by reason of his illness, responding “To be honest well, I really don’t remember. I have been here for a long time, I am very exhausted, I have taken so many medications and because of the situation that I’m in – that I’m in I really cannot remember” (AB416). [78]

I am reinforced in my conclusions on ground 5 by the lack of any real engagement by the AAT with the symptoms of Mr [AFD]’s mental illness and its seriousness as a pervasive element in the AAT’s approach to the hearing and otherwise in its reasons as I explain in addressing grounds 7, 2 and 10 below. In other words, the AAT’s decision, as well as the process adopted at the hearing, make it clear in my opinion that the AAT member, with respect, comprehensively failed in a meaningful way: 1) to have regard to what was said in Mr Naidoo’s report; 2) to bring his mind to bear upon the facts stated in the report and the opinions put forward and their ramifications; and 3) to appreciate who was expressing the opinions (an independent expert as opposed to the lay appellant), adapting the words of Kiefel J in Tickner at 495 (quoted at [49] above). [80]

Source: AFD16 v Minister for Immigration and Border Protection [2020] FCA 964 (10 July 2020)