MZXFJ v Minister for Immigration & Anor
[2006] FMCA 1465
•10 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXFJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1465 |
| MIGRATION – Protection visa – judicial review – whether jurisdictional error – claim by women of severe abuse in Uganda – forced marriage upon return –persecution as a lesbian in Uganda – failure to consider relevant issue of reason for failure of Applicant to lodge complaint in Uganda – failure to take into account departmental guidelines – video link hearing undesirable where credibility of Applicant in issue – Tribunal hearing to be conducted according to Ministerial guidelines when dealing with gender related claims. |
| Applicant M16 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 148 FCR 46 Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 92 ALR 157 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ReMinister ex parte Durairajasingham (2000) 74 ALJR 405 |
| Applicant: | MZXFJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1630 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 July 2006 |
| Date of last submission: | 26 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 10 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. R.M. Niall |
| Solicitors for the Applicant: | Allens Arthur Robinson Lawyers |
| Counsel for the Respondents: | Mr. C.J. Horan |
| Solicitors for the Respondents: | Phillips Fox Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 28 October 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1630 of 2005
| MZXFJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon an amended application filed 9 March 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 October 2005. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant a protection visa to the Applicant. The Applicant is a citizen of Uganda who arrived in Australia on 13 June 2004 as the holder of a visitor visa.
On 29 June 2004 the Applicant lodged a protection visa application. The application was supported by a detailed statutory declaration (Court Book page 53). On 26 August 2004, a delegate of the Minister refused to grant a protection visa to the Applicant. The Applicant then applied to the Tribunal for review of the delegate's decision and as indicated, the Tribunal affirmed the delegate's decision on 28 October 2005.
The Applicant's claims
In brief terms, the Applicant's claims involved a number of separate issues which are set out in the Applicant's contentions in the following form:
a)she had a history of severe sexual and physical abuse as a child, including at the hands of a person named "D";
b)if she was forced to return to Uganda she would have to undergo an arranged marriage to “D” and that “D” would insist that she undergo female genital mutilation;
c)she is a lesbian and had a lesbian relationship with “R”; and
d)as a lesbian, she would face persecution in Uganda.
For reasons which will become apparent, it is appropriate to refer in some detail to the claims of the Applicant set out in her supporting statutory declaration and details which were set out in a further declaration filed by the then representatives of the Applicant on her behalf with the Tribunal on 25 May 2005 (Court Book page 53). It is relevant to set out the following extracts from the first statutory declaration:
“10. My Aunty told me that as I was mature, had no money and no parents it was best that I got married. She said there was a man, “D”, who had been coming to visit who wanted to marry me. She told me that “D” would pay for me to continue studies if I were to marry him. “D” also told me that he would pay for my studies provided that I was married to him. He said that he would not pay for my University unless I was married to him because he thought I would go off with other males students.
11. I did not argue with my Aunty because I felt that I had no choice. In my culture you do not talk after a big person has talked. You must respect your elders. “D” had been visiting the house to see my Aunty but until this conversation I did not know what was going on. “D” is 37 years of age.
12. I knew after this conversation that I would have no choice but to marry “D”. I was very worried about this because “D” is from the Sebei ethnic group of Uganda. I don’t know anything about “D’s” religion.
13. The Sebei ethnic group in Uganda carries out female circumcision. There is a season every year when young Sebei girls are circumcised. If a Sebei man marries a non Sebei woman then the wife must go through circumcision after the marriage. No man marries anybody unless the women will go through female circumcision. It identifies men as belonging to the Sebei group.
14. “D” is from the East of Uganda, Kabat, near the Kenyan border. I think this is where the Sebei group is from. I think “D” was a long time friend of my Aunty as he would often come to the house to visit as I was growing up.
15. “D” talked to me about female circumcision. He said this is my culture and I cannot change it. He told me to be strong and that other women have had to go through it. I asked him if there was any way we could pretend that I had been circumcised. He said no because his relatives would check to see that the circumcision had been carried out.
16. During my time at Boarding School I met a few Sebei girls who had been circumcised. In school we were taught about the advantages and disadvantages of circumcision. I learnt that the elders in the village carry out the circumcision in a elder’s home and not in hospital. They cover the girl with a sheet and then the labia and clitoris is cut out with a knife. I understand this to be very unhealthy and dangerous to the girls. I also understand that the pain is very bad. I learnt that you can get Aids and other disease from the circumcision, that it takes 3 or 4 months to heal and that some girls even die after circumcision. I learnt that herbal medicines are used after the circumcision which are not adequate and which sometimes cause further infection. There are also long term effects of this because the woman is completely desensitised and does not feel what other women feel.
17. I was very terrified about the prospect that this was going to happen to me. After talking to “D” about this I knew that there was nothing that I could do because he had made up his mind that he wanted me and my Aunty had made up her mind that she wanted me to marry him.
18. I got engaged to “D” in about November 2003. My Aunty had discussed with “D” and his relatives how much dowry they would have to pay to my Aunty. An agreement was made after which over 30 cattle arrived at our home. I don’t know the exact details of the dowry but those cattle were part of it. After the dowry is negotiated a document is drawn up which sets out the dowry agreement and says that from that date the marriage date can be set. That document has to go through the Local Council one and two for approval. This occurred with my dowry and the document was approved. A copy of the document was given to both my Aunty and “D” but not to me.
…
24. Circumcision still occurs in Uganda and there is no law against it. I therefore could not seek help from police or law enforcement people.
25. If I had refused to marry “D” then my Aunty would have chased me from her home. I would have had no place to go.
I expect that my Aunty would not leave the situation at that.
I believe that she would find some way to force me into the marriage. She has a lot of power over my life. She is the only parent I have known since I lost my parents. When I tried to talk to my Aunty about the circumcision she said that this had happened to other women and that I would have to go through with it. I did go to my older sisters house for a few days but she told me that I should go ahead with the marriage.
…
27. I do not believe that I would be assisted by police if my Aunty or “D” were to pursue me if I refused to go ahead with the marriage. The police would not involve themselves in a problem such as this which is about my marriage. I also believe that there is much bribing which goes on within the police force and that you have to pay money to be helped. I would have no such money however those pursuing me could find this money.
28. If I were forced to return to Uganda I would face serious harm due to my forced marriage to “D”, a Sebei, and following the marriage compulsory female circumcision. I am aware of the serious health risks to women who are circumcised. There is no one who could protect me from this in Uganda as it is a legal practice which still occurs in some areas. Due to cultural issues I could not refuse the marriage my Aunty had arranged for me and there would no one to protect me if I were to try to refuse to go ahead. Now that dowry has been paid and the document formalised the situation is even more hopeless. There is no one in my family in Uganda who could protect me as three of my four siblings are younger than I and I believe my other relatives are in favour of the marriage. My situation is made more complicated by the fact that my parents are both deceased. As young Ugandan female engaged to be married to a Sebei, and facing compulsory female circumcision, I am certain I would face serious harm if forced to return to Uganda.”
I have deliberately set out those paragraphs in some detail, which
I have amended in order to prevent disclosure of the identity of the Applicant. Likewise, I set out amended extracts from the further statutory declaration which appears at Court Book page 105:
“2. The DIMIA delegate stated that the Government of Uganda is trying to combat female circumcision and that there are groups who would be able to help me avoid being circumcised. While it is true that the Uganda government does not support FGM, they do not have sufficient resources to stop it.
The area and tribe to which my future husband belongs still practise FGM although there are attempts to stop it. Maybe in future more people will be encouraged not to practise it but that will not be any assistance to me if I am forced to return to Uganda.
My future husband will insist that I am circumcised to satisfy his family and his traditions. I will not be able to get support or protection from my family because they do not oppose what he is trying to do to me.
I disagree with the delegate’s finding that circumcision will be abolished by 2006. I have first hand knowledge and I know that I will face circumcision. Even now some one could be getting circumcised.
…
3. The delegate also said that there was no evidence that I had tried to get protection from the authorities. This is true. I know that I will not get protection from them because of what happened to my sister, “M”.
“M” was forced into marriage with a man selected for her by the relatives she was staying with. My sister, some friends and I approached a women’s group, FIDA, for help by the person we saw there told “M” that she was lucky to be getting married.
We also approached the Local Council for help but the officials we approached asked us for sex instead of helping us. After that we could not go to the police. There was no hope or help for my sister and she was sold off to this man. She was forced to live with him even before she was officially married to him and he forced her to stop studying. There was no law to stop this.
Having witnessed what happened to my sister, there was no way I could go to the women’s group, the local council or the police for help when it came to my turn. This is my society. This is real life and we are real people but the life that we go through is intolerable. It does not matter whether you are educated or not. The society dictates and that is it.
The former Vice-President of Uganda Ms Specioza Wandera Kazibwe is a perfect example. She experienced domestic violence even though she was a vice President. She was raped and beaten by her husband in her own house and not even the women groups were there to help her. So, if the Vice president can go though this, who am I to sit back and rely on the assistance of the women’s groups referred to by the delegate or even the police for that matter? She has had to leave Uganda and now lives in the USA. This clearly indicates the level and degree at which women are constantly facing domestic violence and no one can help.”
4. I will not be able to get support from my family. They are the ones who arranged my marriage and they should know what I want. It is shameful for them that I have run away. In my country, we have respect for our elders. You are supposed to do what the elders tell you to do. I was supposed to go ahead with the marriage even though I did not want it. Because I have not done what they told me to do, I no longer have their blessing as what I have done is regarded as an abomination. My aunty has cursed me and this will make life in Uganda very bad for me.
…
I hate talking about this part of my life as I am so ashamed of myself and a lot of the time I feel so dirty. I could not have mentioned this in my first statement and up to this day I just don’t think I need to talk about it. But the fact that I can come to a strange country, this shows that I would rather face anything rather than get married to a man who did horrible things to me. Not only was I a sex slave to this man, I was a sex slave to my aunt’s husband. I have grown up with so much hatred for men, especially Ugandan men, that it is affecting me so much and I don’t know what to do.
5. I tried to tell my aunt how uncomfortable I was around this man and she thought I had a problem. I think this is why she took me to a boarding school so far away from home – Rubaga Girls School where I met and became good friends with “R” who cared for me like a little sister. “R” was 5 classes ahead of me. And she loved me so much. I felt so comfortable around her and we became very close.
“R” is a lesbian and while we were still at school she began a sexual relationship with me. After she left school, she continued to come and visit me there and she would give me pocket money so that I could go and visit her. This relationship continued until I left Uganda.
I did not mention this in my first statement because I had never told anyone about this before. I still could not trust anyone to tell this at the time I made that statement. I did tell my first lawyer sometime after I made my first statutory declaration.
I am mentioning it now because I was asked to explain why “R” did so much to help me, including risking her own job at Uganda Telecom.
I am very frightened to talk about my relationship with “R” openly as homosexuality is a very bad crime in Uganda and you can be punished by life imprisonment if you are caught.
…
Because my Aunt’s husband was not getting enough satisfaction from her, he thought he would turn to me. He would come to me and tell me he loved me. He always demanded sex and had it by force. There was no one who could help me. He always caught me when I was by myself and no one else was there. This was the place I called home. I could not tell anyone.
During one school holiday I was told that he had left because he couldn’t stand the fact that my Aunt was barren. I hate men and I just can’t help it.
Usually in my culture, barrenness is blamed on the woman and not the man. A man can’t be barren. These are things that not even the police or women groups can change.
…
7. The police in Uganda can’t protect me, nor can I go to any other place in Uganda and feel protected. Leaving Uganda is the best thing that I have ever done for my self. I just feel helpless and I hate seeing the others I left in a situation like mine.
…
… This was unbearable and not a single soul could have helped me.
After “D” had paid the dowry for me, he visited daily but I couldn’t stand him. He constantly talked to me sexually, touched me and this was so disgusting. I will not and could not bear it.
No one seemed to know what I was going through and, apart from “R”, no one seemed to even care. I tried talking to my sister “M” who had got married and she insisted that I stop talking about stuff like that as it would ruin my reputation. She also just thought I was just making the stories up so that I didn’t have to go through with the marriage.
“D” molested me as I was growing up and I can expect even worse from him now that he has paid dowry to my aunt for me to marry him. And now that I have disappeared for all this time what will happen to me if I am sent back to Uganda?
I know that I am constantly going to be sexually abused since that is the way men who pay dowry regard their women. We are sex objects and there is no law against that.
8. There is a lot of domestic violence that goes on in Uganda. The police rarely get involved and if they do, it’s usually too late. The police are very corrupt. They too usually demand for sex as a payment for their help. This is because women don’t usually have the sort of money they want. And, in most cases the police don’t’ want to get involved in domestic issues.
I am sure that the Vice president had proper Education and her position alone should have threatened her husband but that too doesn’t seem to work. A man in Uganda is the boss and no matter what as a woman you must respect that.
…
I have molested, raped, I have suffered child abuse and child labour. This is no way I can or could sit back and wait for the police or the women groups to intervene. I am sorry but I did what I know and what I believe was the best thing to be done.” (sic)
The Amended Application
The Applicant relies on one ground set out in the amended application, namely ground 2, which provides as follows:
“(2)The Tribunal failed to take a relevant consideration into account namely:
a) the reasons why a victim of rape and sexual assault would not seek assistance from the authorities in her country of origin;
b) the Ministerial guidelines on dealing with gender related claims.”
The Tribunal's Decision
The Tribunal did not believe the Applicant. It specifically rejected a number of claims made by the Applicant. As summarised in the Applicant's submissions, the Tribunal did not accept the following:
a)that the Applicant had undergone sexual and physical abuse as a child;
b)that she left Uganda to escape a forced marriage leading to the possibility of female genital mutilation;
c)that she would be forced into a marriage on her return to Uganda; or
d)that she is a lesbian and had a lesbian relationship with "R".
It should also be noted that the Tribunal had before it a statutory declaration from the person referred to as "R" (Court Book page 117). In order to understand the submissions made in support of the amended application, it is appropriate to set out extracts from the Tribunal decision which appear under the heading "Findings and Reasons" (Court Book pages 203-207). The Tribunal summarised the Applicant's claims in the following paragraph:
“The Applicant’s claims may be summarised as follows. The Applicant claims she was subject to sexual and physical abuse throughout her childhood. The Applicant claims that her aunt had arranged her marriage to a person by the name of “D” and that bride price was paid in respect to this marriage. The Applicant claims that if married to this person she would have to undergo FGM so she fled to Australia to avoid a forced marriage and circumcision. She claims that she fears that should she return to Uganda she will be forced to marry and forced to undergo circumcision and that even if she does not marry “D” she will be forced to marry someone else. She claims that the authorities of Uganda are ineffective in providing her with protection against these events. The Applicant also claims that she is a lesbian, that she was in a lesbian relationship in Uganda and that she fears harm on returning to Uganda by reason of her sexual orientation.”
After referring to the claims made by the Applicant, the Tribunal then asserts that it carefully examined those claims and that it "had regard to the guidelines set out in the United Nations High Commissioner for Refugee (“UNHCR”) Handbook on Procedures and Criteria for Determining Refugee Status. The Tribunal otherwise referred to what it described as the "difficulties of proof faced by Applicants for refugee status". The Tribunal relevantly states:
“The Tribunal carefully examined the Applicant’s claims in her protection visa and review applications, her oral evidence, the adviser’s written submissions, and supporting documents lodged in support of her claims. The Tribunal has also had regard to the guidelines set out in the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status. The Tribunal accepts the difficulties of proof faced by Applicants for refugee status. In particular, there may be statements that are not susceptible of proof and it is rarely appropriate to speak in terns of onus of proof in relation to administrative decision-making: see Nagalingam v MIEA unreported, 22 September 1992, and McDonald v Director-General of Social Security (1984) FCR 354.
The Tribunal has come to the conclusion that the Applicant is not credible in respect of key aspects of her claims for protection. Not being satisfied in respect of these aspects of her claims, which are discussed below, leads the Tribunal to conclude that the Applicant is not in genuine fear of persecution nor is there a real chance of persecution on her return to Uganda.
…
Rather the first and only course of action which the Applicant undertook to extricate herself from her claimed circumstances was to establish contact with a man in Australia through the internet and then to prepare what she claims to be false documentation in order to obtain a visa to come to Australia. The Tribunal considers this to be a somewhat unusual step for a person who, claims to “hate men” and who prefers the company of women and avoids the company of men.
The Tribunal considers the Applicant’s explanation that she never attempted to approach any professional body or women’s group in respect to her circumstances because her sister did not get help when her sister approached them; that they tell people they are lucky to be married and they support longstanding cultural practices to be unconvincing. The WOUGNET website (cited above at page 16) clearly indicates that there are a wide range of professional services available to women in respect to not only forced marriage and FGM but also rape.
The Tribunal notes that the Applicant claims that she never studied in the Department of Women and Gender Studies at Makerere University but rather her friend “R” did and it was “R” who organised the fraudulent documents for the visitor’s visa application and that perhaps the Department provided the documents to “R” because “R” had told them of the Applicant’s circumstance. The Applicant further stated that she herself had sometimes gone to the University with “R” and meet lots of people there (see page 5 above).
The Tribunal considers it beyond belief that given that “R” and the Applicant both were in contact with the Department of Women and Gender Studies and given the focus of this department (see page 15-16 above) neither “R” nor the Applicant apparently made approaches for assistance or advice to members of this Department who would be, at the very least, sympathetic to the Applicant’s circumstances if they be her real circumstances. Instead the Applicant claims they provided her with false documentation to assist her to leave the country.
The Tribunal raises these points not simply to suggest that that Applicant could avail herself of protection in respect to her claimed experiences but also because of credibility concerns. The Tribunal does not accept as plausible that a person would have undergone the degree of hardship which the Applicant claims to have undergone over an extensive period of time but take no measures to seek help or redress in Uganda, particularly when this assistance was in close proximity to her (both physically, emotionally and ideologically) but rather she sought to extricate herself from her claimed circumstances through a hitherto unknown male that she had met over the internet.
The Tribunal considers that the Applicant’s description of her claimed circumstances in Uganda prior to her arrival in Australia to be lacking cohesion and implausible. In particular the Tribunal notes that the Applicant has resiled from information she provided in respect to her visitors’ visa application in respect to her employment at Telecom and her attendance at university. However, the Tribunal is most unconvinced by the Applicant’s description in her written submission to the Tribunal and her oral evidence that she washed cars for three months in an unpaid capacity and that she worked at Telecom in an unpaid capacity by way of filling in for absent workers and or doing a replacement for a period of six months.
The Tribunal considers aspects of her evidence to be internally inconsistent, the Applicant claimed that her aunt exercised considerable control over her and that after the dowry was paid for her she was considered to belong to “D”. However the Applicant claimed also to be able to frequently stay with her friend “R” without any objection from her and departed the country also unbeknown to her aunt.
The Tribunal found the Applicant’s manner, style and presentation of her claims to belie the genuineness of her claims. While the Tribunal acknowledges that Applicants may well at times exaggerate and embellish claims in an attempt to give them force, the Tribunal considers that the Applicant’s oral and written submissions to the Tribunal in respect to her claimed past experiences and claimed fears were conveyed in an artificial and affected manner. The Tribunal was not impressed that the Applicant was recounting actual lived experiences. In the hearing the Applicant not infrequently digressed to general descriptions of the circumstances of women in Uganda but was less detailed and more ambiguous in describing her own claimed circumstances.
The Applicant has provided a statutory declaration from “R” in support of her claims. However in light of the Tribunal’s considerable concerns about the Applicant’s own evidence the Tribunal does not place weight on this documents as establishing the genuineness of the Applicant’s claims. In respect to the letter from Colin O’Hara the Tribunal notes that this letter does refer to the Applicant’s claims but merely verifies that the Applicant made contact with him through the internet and that he provided money for her to come to Australia.
The Applicant also presented to the Tribunal a photocopy of a newspaper advertisement in respect seeking information as to the whereabouts of the Applicant placed in the classified section of the newspaper. Given that the placement of an advertisement is merely a matter of a personal initiative open to anyone prepared to pay, the Tribunal does not place weight on it as a verification of the Applicant’s claims. The Tribunal notes that the advertisement was placed in the newspaper on the 21 February 2005 and only provided to the Tribunal at the time of the hearing in May 2005. The Tribunal considers it implausible that such an advertisement would be placed some eight months after she allegedly went missing.
For all the reasons outlined above, the Tribunal does not accept that the Applicant has undergone sexual and physical abuse in her childhood, or that she left Uganda to escape a forced marriage leading to the possibility of FGM.
Further the Tribunal does not find the Applicant to be a credible witness and as such the Tribunal is satisfied that there are reasonable grounds to reject all her claims. Accordingly the Tribunal does not accept that the Applicant was in a lesbian relationship with “R” or is a lesbian or that she will be forced into a marriage on her return to Uganda.
In regards to the issue of the genuineness or otherwise of the information provided by the Applicant in her visitor’s visa application the Tribunal corresponded with the adviser following the hearing. The Tribunal accepts that in order to obtain her visitor’s visa the Applicant provided false information about her employment history and attendance at university. However the Tribunal does not accept that the Applicant’s motivation for this was for reasons of flight from her claimed circumstances.
As the Tribunal does not accept that the Applicant’s claims are genuine, the Tribunal is satisfied that the Applicant does not have a well founded fear of persecution or that there exists a real chance of persecution on her return to Uganda for a Convention reason.”
It will be evident from the extensive extract from the Tribunal's findings and reasons that a significant factor taken into account by the Tribunal in rejecting the claims by the Applicant was the failure of the Applicant to report the abuse which had occurred whilst the Applicant was in Uganda. It is relevant to note, that apart from the Tribunal indicating that the Applicant had only confided in "R" the Tribunal notes that, "... at no time did she apparently approach persons such as her school principal or counsellor, the police, or any of the women's group that assist women in the circumstances the Applicant claims to have experienced in Uganda."
The Tribunal then refers to "The only course of action which the Applicant undertook" was to "extricate herself from her claimed circumstances by establishing contact with a man in Australia through the Internet." The Tribunal clearly makes adverse findings concerning the Applicant's explanation as to why she never attempted to approach any professional body or women's group.
The reference by the Tribunal to what is described as the women of Uganda website (“WOUGNET”) relates to details set out in the Tribunal's decision earlier in its decision under the heading "Country Information" (Court Book pages 201-202). It is also noted from the substantive extract of the Tribunal's findings and reasons that a significant adverse finding in relation to the Applicant's claim appears in the paragraph with the introductory sentence that, the Tribunal found "the Applicant's manner, style and presentation of her claims to belie the genuineness of her claims" [emphasis added].
It is common ground that the Tribunal conducted a hearing and that the hearing was conducted by video-link to Melbourne. The Applicant and her adviser were present and the hearing which was conducted in English.
The Applicant's Submissions
Apart from relying upon written contentions filed 4 July 2006, the Applicant also relied upon three affidavits, the first an affidavit of Neil McAteer sworn 3 April 2006, which annexed the Department of Immigration and Multicultural Affairs document entitled, "Refugee and Humanitarian Visa Applicants Guidelines on Gender Issues for Decision-Makers" [Exhibit A1]. Further, reference was made to an affidavit of Louise Aoueiss Edwards, affirmed 28 March 2006, annexing transcript from the Tribunal hearing of 30 May 2005 [Exhibit A2]. A third affidavit also of Ms Edwards, affirmed on 4 July 2006, annexed a media release from the then First Respondent and a copy of the United Nations High Commissioner for Refugees handbook on procedures and criteria for determining refugee status under the 1951 Convention and the 1967 protocol relating to the status of refugees [Exhibit A3].
It was submitted on behalf of the Applicant that the single ground relied upon, namely ground 2, should be upheld on the basis that the Tribunal failed to take into account the ministerial guideline on dealing with gender-related claims and the reasons why a victim of rape and sexual assault would not seek assistance from the authorities in the country of origin. It was submitted that the departmental policy on gender guidelines was a relevant consideration that the Tribunal was bound to take into account. The Applicant relied upon a decision of Gray J in Applicant M16 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 148 FCR 46 (“Applicant M16”), where the Court in that case relevantly stated the following when dealing with the gender guidelines:
“37 In a media release, dated 3 June 1996, the then Minister announced the release for public comment of draft guidelines dealing with gender-related claims by asylum seekers (the gender guidelines). ln a subsequent press release, dated 15 July 1996, the then Minister announced the finalisation of the gender guidelines, announcing the commitment “to ensure bona fide refugees are given every opportunity to present their case in a sensitive and fair process”. The Minister said that the gender guidelines “will ensure that decision-makers deal with gender-related claims in a sensitive and consistent manner”. In both media releases, the Minister noted “that women refugees and asylum seekers might face particular problems in seeking protection”. The problems to which the then Minister referred included “difficulties in discussing claims related to sexual violence or cultural difficulties”. It was also announced that the gender guidelines would be “used by all officers of the Department making decisions on refugee cases”.
38 The gender guidelines are in a 22-page document, dated July 1996. In para 2.2, they list international instruments in which obligations to protect the human rights of women, including refugee women, may be found. It is unnecessary for me to set out that list here. It is reproduced conveniently in the judgment of Branson J in Khawar v Minister for Immigration and Multicultural Affairs [1999] FCA 1529; (1999) 168 ALR 190 at [38]. In para 2.11 of the gender guidelines, it is recognised that:
“Guidelines for officers which specifically address women’s needs are important if women’s claims of persecution, including gender-based persecution, are to be properly heard and assessed. When applying for humanitarian visas, women may face particular problems such as difficulties in making their case to decision makers, especially when they have had experiences which are difficult and painful to describe. There may also be social and cultural barriers to lodging applications and/or pursuing claims related to their own experiences.”
39 Paragraph 3.12 of the gender guidelines contains the following:
Many women face particular difficulties when discussing gender-related claims which may include rape, or other forms of sexual violence, domestic violence and discrimination. In particular, women may experience difficulty in recounting sexual torture or rape in front of family members. Some women, because of the shame they may feel over what has happened to them, may understandably be reluctant to identify the true extent of persecution they have suffered because of their continuing fear and distrust of people in authority. They may also be afraid to reveal their experiences because they are so traumatised by them or because they fear reprisals from their family and/or community. Female Applicants who are survivors of torture and trauma, in particular, require a supportive environment where they can be reassured of the confidentiality of the gender-sensitive claims they are making.
40 Following para 3.13 appears the statement that:
In the vast majority of cases women who have experienced torture and/or trauma have suffered these abuses at the hands of men Coupled with a fear and distrust of authorities, this fact is likely to seriously inhibit the capacity of a female Applicant to divulge details of her experiences to a male interviewer.
41 According to para 3.26 of the gender guidelines:
If an officer feels that a female Applicant has further claims of a sensitive nature that have not been discussed during any stage of the interviewing process, the Applicant should be encouraged to provide any supplementary information that she feels may support her claims. Alternatively, if an Applicant has difficulty in speaking about her persecution, she may be more comfortable putting her claims in writing.
42 It is recognised in para 3.27 that it is:
unlikely that a woman whose written claims are part of an application supplied by other members of her family unit or who is interviewed in the presence of other family members will discuss the circumstances surrounding a sexual assault.
43 The gender guidelines also recognise that a failure to raise a gender-related claim on several occasions should not necessarily cast doubt on the credibility of a person who raises it at a later date.
44 There can be no doubt that the gender guidelines were ignored altogether in dealing with the first Applicant’s claims. The two sentences I have quoted at [13], from the first Applicant’s statement accompanying her original application for a protection visa, could not be construed as anything other than giving notice that she had more to say about the July 1995 incident, and that she was sensitive about saying it to a man. At the very least, this should have sounded warnings to the Minister’s delegate that there may have been gender-related claims and that there were cultural reasons why the first Applicant did not wish to reveal them to a man. Anyone making a serious attempt to comply with the gender guidelines would have arranged to interview the first Applicant in a manner that would have been conducive to ascertaining what she wanted to say. As it was, the Minister’s delegate dealt briefly with the July 1995 incident in written reasons, without mentioning either the first Applicant’s claim to have been kicked, or her statement that she had more to say about the incident.
45 The Tribunal had even more reason to suppose that there were gender-related matters that the first Applicant would not speak about in the presence of men, for cultural reasons. It would be extremely unlikely that the Tribunal member had not read the first Applicant’s statement attached to her original application for a protection visa. The statement is mentioned early in the Tribunal’s reasons for decision. Later in its reasons for decision, as I have said at [23] and [25], the Tribunal referred in some detail to the medical report, to which I have referred at [15], even to the point of quoting from it the statement that the first Applicant “has other information she was only prepared to reveal to a female case officer”. An examination of the transcript of the Tribunal hearing makes it clear that at no stage did the Tribunal member make any attempt to encourage the first Applicant to reveal this information. He did not make the obvious suggestion that, if her husband and the male migration officer would leave the hearing room, she might be able to reveal the other information to the Tribunal member, through the female interpreter. It is even possible that, in her response to the Tribunal member’s question whether she had been traumatised by what had happened to her in Sri Lanka (which I have quoted at [20], the first Applicant was making a coded request for help in revealing the further information that she had. Even if this were not the case, the Tribunal member clearly had no interest in pursuing the issue, despite the fact that it was obviously raised. Far from giving the first Applicant the opportunity to put her claims in writing, if she could not bring herself to reveal them to him, as suggested in para 3.26 of the guidelines, the Tribunal member refused to receive any written submissions after the hearing.
…
48 Counsel for the Minister attempted to argue that the Tribunal was not itself bound by the gender guidelines. The gender guidelines themselves refer to “officers” and “decision-makers”. As I have said, their promulgation was announced by the former Minister. They bear the title of the Department. The Tribunal is established separately from the Department, by s 394 of the Migration Act. It is plainly intended to be independent of the Minister and the Department (which makes it rather odd that it should act through the same solicitors as the Minister in a case such as the present). The Tribunal does not function in isolation from the Department, however. Its statutory duty, pursuant to s 414(1) of the Migration Act, is to review decisions made by officers of the Department in their capacity as delegates of the Minister. For that purpose, pursuant to s 415(1), the Tribunal has all of the powers and discretions conferred on the person who made the decision. In effect, the Tribunal stands in the shoes of the Minister’s delegate, when it exercises its function of reviewing a decision of such a delegate. It would be anomalous, if not offensive to reason, to suggest that the Tribunal could ignore guidelines prepared for the benefit of officers of the Department when exercising powers as delegates of the Minister. The Tribunal and the Migration Review Tribunal routinely make use of other guidelines, particularly those contained in the Department’s Procedures Advice Manual (PAM III). Further, in general practice direction No 8 of the Tribunal, made pursuant to s 420A of the Migration Act, there is express recognition of the need to deal appropriately with gender-related issues.
49 The gender guidelines are not some heavy-handed regime imposed on decision-makers as a result of the adoption of some particular policy position. Nor can they be reduced to the status of ideals, promulgated to the public, but ignored by decision-makers whenever their application would give rise to inconvenience. They represent nothing more or less than the recognition of the appropriate way in which to deal with the difficulties some people have in expressing themselves publicly about some matters, as a result of cultural constraints. The Tribunal does not afford a proper hearing to a person when it fails to give that person an opportunity, readily available, to communicate about such matters. In Khawar at [38] Branson J said that reference could be made to the gender guidelines to ascertain “the appropriate approach to be adopted by a decision-maker assessing a gender-based claim for a protection visa”. Her Honour’s judgment was given some nine months before the Tribunal hearing in the present case.
…
52 It cannot be said that the denial of procedural fairness made no difference to the outcome. Had the Tribunal been aware of what the first Applicant says in the last sentence of [14] of her affidavit, it might well have found that the assault of the first Applicant by PLOTE members in July 1995 was far more serious than it had supposed. The first Applicant’s chances of persuading the Tribunal that she had been persecuted by PLOTE members would certainly have been increased. More importantly, had the Tribunal been aware of the matters referred to at [15] and [16] of the first Applicant’s affidavit, the Tribunal’s finding that the July 1995 incident was “an isolated incident” might not have been made. Had the Tribunal been aware of the power that the PLOTE members acquired to ruin the first Applicant’s life, and of the ongoing effect of that power, its conclusions as to the future might also have been different. The Tribunal might have taken a different view about the likelihood of ongoing persecution of the first Applicant by pro-government Tamil organisations, and about the capacity of the Applicants to solve any problems by relocating to Colombo. In the words of para 4.19 of the gender guidelines:
"an overall understanding of the role and perception of women in the Applicant’s society will demonstrate the extent of the persecution a woman would face if she were to return.”
It will be evident from that extensive extract of the decision of Gray J that His Honour has relevantly considered parts of the guidelines which have been relied upon in the present application and accordingly, it is not necessary for this Court to further repeat those extracts from the gender guidelines. It may become relevant to refer to other parts of the guidelines to which counsel for the Applicant has referred during the course of submissions. It was submitted by counsel for the Applicant that in this instance the Tribunal did not refer at all to the gender guidelines and having failed to refer what was submitted to be a relevant consideration had thereby committed jurisdictional error.
In addition to paragraphs 2.11, 3.12, 3.26 and 3.27 of the guidelines, counsel for the Applicant further referred to paragraphs 4.12 and 4.14 of the guidelines which relevantly provide as follows:
“4.12In some societies, particular types of violence against women may be officially condemned or even illegal but in fact may be so endemic that local authorities turn a blind eye to its occurrence. Sometimes these forms of abuse are systematic or culturally acceptable so that local authorities may actively participate or be complicit in the hams suffered.
4.14It should also be noted that it is not always reasonable or possible for a woman to alert the authorities to her need for protection. State protection should be effective – with provision for mechanisms for dealing with complaints and also assurance that such avenues for redress are realistic and accessible to a woman of her culture and position.
Officers should investigate why a woman did not seek the protection of the state, as her inability to even request protection may in itself be indicative of a failure of state protection.”
It was submitted that the decision of the Court in ApplicantM16 stands for the proposition that the gender guidelines apply to the decision of the Tribunal to review the refusal by the Minister of the grant of a protection visa and that being so, it was submitted, the Tribunal was bound to take the guidelines into account. During the course of submissions, counsel for the Applicant further referred the Court to the decision of Wilcox J in Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 92 ALR 157 (“Nikac”) and in particular the following which appears at page 183 where his Honour states:
“Although a non-statutory policy is not binding upon a decision-maker, in the sense that he or she may decide in the particular case not to act in accordance with the policy, a policy applicable to the case is always a relevant consideration in the making of a decision. Unless it can be said that the policy is so insignificant that it could not have materially affected the decision – see per Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (CLR at 40) – any failure to take that policy into account will lead to invalidity.”
The Applicant also sought to rely upon a decision of the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 (“Gray”) where in the joint judgment of French and Drummond JJ their Honours noted at page 206 the following:
“The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance for the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. As Bowen CJ and Deane J observed in Drake (at 2420):
“… the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power”.
This is particularly so in the case of a power which involves hight volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirements that each case is considered on its merits. But within the framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal.” [Emphasis added]
In this application, it was submitted that there is little doubt that the Tribunal did not consider, take into account, or expressly make reference to the gender guidelines. It was noted that there is a reference to the UNHCR handbook and the difficulties referred to in general of proof by Applicants for refugee status. It was submitted that no reference has been made to the propositions inherent in the gender guidelines, namely that there may be special reasons why it is difficult for women applying for refugee status to disclose details of sexual abuse and/or to seek protection.
Criticism was made of the Tribunal's finding in the extracts set out earlier in this judgment, where the Tribunal stated that it considered it "beyond belief" that the Applicant would not have made approaches for assistance or advice from members of the department of women and gender studies at the university. That finding, it was submitted, was reinforced by the further observation set out earlier in this judgment by the Tribunal that it did not accept "as plausible that a person would have undergone the degree of the hardship which the Applicant claims to have undergone over an extensive period of time but takes no measure to seek help or redress in Uganda ..."
It was submitted that those conclusions, particularly the reference to it being "beyond belief" that the Applicant would not seek assistance or advice, were expressed in strong language of a kind which makes it incompatible with any consideration of the observations in the guidelines as to the variety of reasons why complaints are not made in the country from where the person has fled.
The First Respondent's Submissions
The First Respondent submitted that in this instance, the Tribunal, whilst not expressly referring to the gender guidelines, had acted consistently with those guidelines. In the alternative, it was submitted that the guidelines are not a relevant consideration in the sense set out in the Peko-Wallsend decision. It was submitted that the Tribunal's reasons should receive a beneficial construction and should not be scrutinised in what is described as an overly critical manner "with an eye keenly attuned to the perception of error" (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 292).
It was submitted that a "relevant consideration" is a consideration that the Tribunal is bound to take into account when exercising its powers (see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40) (Peko-Wallsend). Reference was made to the joint decision of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at [73] where the Court states:
“The considerations that are, or are not, relevant to be Tribunal’s tasks are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider (72).”
In this application, it was submitted that it may be doubted whether the gender guidelines themselves were relevant considerations that the Tribunal was bound to take into account. In any event, as indicated earlier, it was submitted the Tribunal did not act inconsistently with those guidelines. In the alternative, it was submitted there is no basis for any inference that the Tribunal failed to take the gender guidelines into account. Otherwise, it was submitted, the Tribunal did take into account the reasons advanced as to why the Applicant claimed she had not sought assistance from the authorities or from women's groups.
The First Respondent also referred to specific paragraphs from the gender guidelines. It was submitted significantly, that a large part of the guidelines is concerned with what are described as "procedural issues". Those aspects of the guidelines, it was submitted, focus on the difficulties that may be encountered by a female Applicant in raising or discussing gender-related claims such as claims of rape or sexual abuse, particularly in the presence of men or family members. After referring to the relevant paragraphs from the gender guidelines which refer to interviews being conducted in a sensitive and sympathetic way with respect to confidentiality and otherwise refer to difficulties a complainant may suffer, and that failure to raise gender-related claims or failure to accurately record details and dates and events should not necessarily cast doubt on credibility.
It was then submitted by the First Respondent, that none of the guidelines had any "direct application to the present case". It was submitted, the Applicant does not make any complaint about "the process by which her claims were heard and determined by the Tribunal". Reference was made to there being no complaint or suggestion that the Applicant had difficulties presenting her claims, or was prevented or discouraged from making any claims to the Tribunal. No indication was given or allegation made that the Tribunal conducted the hearing process in anything other than a "sensitive and sympathetic way", or that the Applicant was not given a full opportunity to present her claims to the Tribunal.
It was argued that on the contrary, the Applicant fully canvassed the issues concerning the availability of protection in Uganda and had failed to seek assistance from authorities or other sources. Reference was made to paragraphs 4.12 and 4.14 of the gender guidelines set out earlier in this judgment, dealing with the assessment of claims involving gender-related persecution. It was argued that in the present case, the Tribunal directly addressed the issue of the availability of protection or assistance and did not fail to investigate the reasons why the Applicant failed to seek protection or assistance in relation to the fear of harm.
In this case, it was submitted that the critical issue for the Tribunal was not the availability of state protection, but the assessment of the Applicant's credibility. It was argued that the decision of Gray J in Applicant M16 can be distinguished from the present case. The conclusion by Gray J that gender guidelines were capable of application by the Tribunal which stands in the shoes of the delegate of the Minister as set out in the extract of that judgment earlier in this decision, does not, according to the First Respondent's submissions, require "the conclusion that the guidelines constituted a relevant consideration that the Tribunal was bound to take into account in the sense required by Peko-Wallsend".
The decision in Applicant M16, it was argued, involved a failure by the Tribunal to afford the Applicant a proper "opportunity to provide further information" which amounted to a denial of procedural fairness. No suggestion of a failure of that kind is made in the present case. Further, it was submitted, that in any event, it could not be inferred that the Tribunal was not aware of the gender guidelines or that it did not have regard to those guidelines for the purpose of its hearing and determination of the application. It was submitted that the Applicant has not identified any particular respect in which the Tribunal acted inconsistently with the gender guidelines. Accordingly, it was unnecessary for the Tribunal to refer specifically to the guidelines in its reasons for decision. In Applicant M16, it was noted the Tribunal proceeded in a manner directly inconsistent with the gender guidelines and resulted in a finding by Gray J in that case that there could be "no doubt" that those guidelines had been "ignored altogether". It was argued no similar finding should be made in the present case.
The First Respondent submitted that the circumstances of this application are similar to those in the decision of the Federal Court in SAAK v Minister For Immigration and Multicultural Affairs (2002) FCA 367 (“SAAK”) where in the judgment of the Court the following appears at paragraphs 17 to 42:
“17. In the present case, the appellant contended that the Tribunal failed to approach the assessment of credit with the necessary caution, and, thereby, misunderstood its function. In the language of Yusuf, it asked itself the wrong question, that is to say, it misdirected itself by failing to exercise restraint in holding that the appellant was not a credible witness. Or, as Mr Maxwell put it – “if the Tribunal fails to give itself the requisite direction as to the caution required in relation to evidence of this kind then it mistakes its task.”
18. Mr Maxwell contended:
“Where there is an identifiable class of evidence which is recurrent as it is in cases of this kind, that is to say, initial interview evidence, our submission is that there is a principle applicable to the evaluation of that evidence, that is to say, the Tribunal must identify the particular attributes of the occasion on which the relevant statement is made, being attributes which members of this court have repeatedly identified, and we’ll take your Honours to some examples, and if it doesn’t do that then it’s falling into error by treating it as if it were of the same type or class as the statement made for the purposes of the hearing.”
And again:
“[W]hat is required is a clear acknowledgment of the danger from an evidentiary point of view, from a legal point of view, of attaching weight or too much weight to omissions from the initial interview.”
20. The argument raises two issues – first, did the Tribunal fail to exercise sufficient caution in assessing the credit of the appellant by, in particular, relying upon the inconsistency between the first interview and the later evidence of the appellant, and second, if so, did such a failure provide a ground of review under s 476(1)(b), (c) or (e) of the Act?
21. That there is a need for the Tribunal to exercise care in relying on an inconsistency between the first interview and later evidence as the foundation for an adverse credit finding is recognised by the authorities and by text writers. It also reflects modern research concerning the proper approach to the assessment of credit by courts.
22. An oft-quoted starting point is taken from Professor Hathaway’s The Law of Refugee Status (1991) at 84, as follows:
“First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the [Immigration Appeal] Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with testimony given at the hearing is thus highly suspect, and should be constrained in [a] contextually sensitive manner.” [citations omitted]
23. In Sujeendran Sivalingam v MIMA (Unreported, Federal Court of Australia, 17 September 1998, O’Connor, Branson & Marshall JJ), the Full Court cited the above passage from Professor Hathaway and immediately beforehand at 13, said:
“We accept that refugee cases may involve special consideration arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”
24. And, in Abebe v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510 at 577-8, Gummow and Hayne JJ said:
It is necessary always bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.”
25. In W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538, the Full Court dealt with an appeal involving a decision of the Refugee Review Tribunal which found that the Sri Lankan appellant could not be believed because of inconsistencies in the accounts given by him to the delegate and to the Refugee Review Tribunal. Lee J said at [10]:
“An application for a protection visa is not determined by a judicial proceeding in which all relevant evidence is collected, presented and tested by parties to the proceedings. Determination of an application for a protection visa is an administrative function on limited material and limited inquiry, and the process does not provide a foundation on which a finding on credibility may be made with assurance. (See: S Kneebone, The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role (1998) 5 A J Admin L 78.)”
26. His Honour then referred to the passage from Professor Hathaway’s work referred to earlier in these reasons and said at [12]:
“adverse decisions on credibility by the Tribunal should be restricted to the most obvious cases if the risk of injustice to Applicants is to be avoided.”
27. In recent times research has shown that some of the traditional methods used by courts to determine creditworthiness are unreliable. For instance, it is recognised that the confident liar is no longer necessarily to be preferred over the reticent teller of truth. The demeanour of a witness has assumed less importance in the assessment of credibility.
28. In relation to asylum determinations, it has been accepted that the special circumstances of such applications will often render the usual techniques of credibility evaluation inadequate: see generally, Juliet Cohen, ‘Questions of Credibility: Omissions, Discrepancies and Errors of Recall in the Testimony of Asylum Seekers (2001) 13(3) International Journal of Refugee Law 293; Neal P Pfeiffer, ‘Credibility Findings in INS Asylum Adjudications: A Realistic Assessment’ (1983) 23 Texas International Law Journal 139 at 154; Savitri Taylor, ‘Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions’ (1994) 13(1) University of Tasmania Law Review 43.
29. In particular, there are some factors which may result in the asylum seeker failing to disclose an important part of a claim at an early stage.
30. Mistrust of authority arising from dangers under an authoritarian regime from which the asylum seeker has fled may make that person reluctant to disclose information to the authorities in the country of flight, especially on first contact with authority on arrival. If the level of mistrust is high, it may mean that the Applicant will not relate a critical element of a claim at the first interview. In those circumstances, the failure to disclose the relevant event comes from fear, not from the fact that the event did not occur.
31. Then, the circumstances which gave rise to the need for flight may have been so traumatic as to cause psychological harm in the form of Post-Traumatic Stress Disorder (PTSD). Pfeiffer (above) at 148-9 describes some symptoms of this condition which may explain the failure to disclose information about traumatic events:
“If an Applicant is suffering from PTSD, his memory of the persecution may be impaired. Among the varied reactions that are associated with PTSD, two symptoms are particularly relevant to the asylum Applicant’s circumstances. Many PTSD sufferers experience a loss of memory and confusion, a psychological defence mechanism which lessens their stress responses. By not remembering specific details, the Applicant delays acceptance of the trauma and the negative emotions associated with the memory of the event.”
32. Against this background, it is necessary to consider whether the Tribunal approached the task of assessing the credibility of the appellant’s claim to involvement with the Mojahedin, by reference to the first interview, with the necessary caution.
33. The critical factor upon which the appellant relied was the failure of the Tribunal to state that it had taken a cautious approach to this assessment, and the failure to state that it had regard to the circumstances in which the interview occurred. From this omission, Mr Maxwell submitted, the Court should infer that the Tribunal failed to treat the assessment with the necessary caution.
34. Very often the Refugee Review Tribunal expressly refers to the approach it intends to take to the assessment of evidence. There are many examples of Tribunal decisions which acknowledge the constraints referred to by Professor Hathaway and the authorities concerning the assessment of credit. The practice of recording the general approach which the Tribunal intends to take to the assessment of credit is a valuable one. Thereby, the Tribunal reminds itself of the proper approach to its task, and also provides a reassurance to the reader that the proper approach has been taken. In the end, however, the reasons of the Tribunal should disclose whether the proper approach has in fact been taken. This is the safeguard against the problem which arises where the Tribunal records the self direction, but does so in a hollow, formulaic way as a means to attempt to immunise the decision against criticism for failure to take the proper approach to the assessment of credit.
35. In the present case, the Tribunal did not state the approach it intended to take to the significance of the first interview in relation to the claim that the appellant was involved with the Mojahedin.
36. However, the process of evaluation actually undertaken by the Tribunal, although not expressly stated, demonstrated that it approached the assessment of credit in a cautious way by taking into account the circumstances in which the first interview was held and the explanation which the appellant relied upon.
37. The Tribunal recorded the appellant’s evidence at the hearing concerning the reason for his failure to mention at the first interview his alleged involvement with the Mojahedin (see par 8 of these reasons).
38. After the hearing the Tribunal sought further information about the first interview, and referred to the further information provided by way of explanation (see par 10 of these reasons).
39. Then, in its “Findings and Reasons”, the Tribunal again referred to the explanations given by the appellant for his failure to raise his alleged involvement with the Mojahedin at the first interview. In the passage extracted at par 13 of these reasons, the Tribunal considered the appellant’s explanation and gave reasons for rejecting them.
40. The way in which the Tribunal set out and dealt with the first interview evidence demonstrates that it gave serious and careful consideration to the explanations provided by the appellant. The decision itself evidences the exercise of the requisite caution. There is no basis for an inference that the Tribunal failed to approach the task on the wrong basis.
41. It was not necessary in this case for the Tribunal to explain that the circumstances of the first interview may make it an unreliable basis for a conclusion as to the creditworthiness of the appellant, because the appellant himself raised the matters which generally make the first interview an unreliable foundation for an adverse credit finding. Further, Tribunal explained the reasons for rejecting those limitations in this case. Whilst it was not necessary for the Tribunal to make an explicit reference to the caution which should be exercised in these circumstances such references would not have been wasted.
42. In the light of the conclusion that the Tribunal did exercise the necessary caution in assessing the appellant’s claimed involvement with the Mojahedin by reference to the first interview, it is unnecessary for us to consider the second question, namely, whether the failure to exercise the necessary caution provides a ground of review under s 476(1)(b), (c) and (e).”
In the present case, it was submitted that the process of evaluation undertaken by the Tribunal demonstrates it had regard to the matters which are the subject of the gender guidelines, including in particular the need to investigate and consider the reasons why a woman might not seek protection from the authorities in relation to gender-related persecution. It was argued that relying upon the authority of the Court in SAAK, the important question was whether a proper approach had in fact been taken by the Tribunal and, "the process of evaluation actually undertaken by the Tribunal although not expressly stated demonstrated that it approached the assessment of credit in a cautious way".
During the course of submissions, it was noted after reference to that decision, that failure to expressly refer to the gender guidelines would not of itself raise an issue of jurisdictional error if it could be demonstrated that the process followed by the Tribunal, in this instance was consistent with those gender guidelines. The First Respondent argued that in this case the Court should conclude that the reasoning of the Tribunal was indeed consistent with the guidelines.
The First Respondent referred to the statutory declaration material and findings of the delegate and then also further analysed the issue raised by the Tribunal as to the availability of protection and assistance from authorities and other sources. It was submitted, the Tribunal asked the Applicant whether she discussed with anybody or sought any assistance when in Uganda with respect to forced marriage and her fear of circumcision. Reference was made to specific questions asked by the Tribunal of the Applicant as to whether the Applicant sought help in relation to her own circumstances, that is whether she approached any women's groups in respect to her own fears and difficulties. It noted the Applicant's response to the effect that, "You could not rely on any of those women's groups because they cannot really do anything to help you" and that she had approached them and that "women's groups cannot really go against cultural trends" (Court Book page 195).
Country information was discussed with the Applicant by the Tribunal. It was argued that the Applicant's failure to seek assistance or protection was a number of several matters relied upon by the Tribunal in making its adverse credibility finding. The reference by the Tribunal to the failure to seek assistance involved consideration of what was described as a critical fact, namely failure to seek assistance from "a wide range of professional services available to women in respect to not only forced marriages and FGM but also rape" (Court Book page 204). In particular, reference was made to the failure to approach members of the department of the university for assistance. It was submitted that the Tribunal therefore did not rely on the Applicant's failure to seek protection from the police or the government, but rather from sources of assistance that were in "close proximity" to her.
Accordingly, it was submitted that in this application the Tribunal did not fail to have regard to the reasons why a victim of rape and sexual assault would not seek assistance from the authorities in her country of origin. Further, it was argued that those reasons cannot of themselves be regarded as a relevant consideration to which the Tribunal is bound having regard to the principles of Peko-Wallsend. It was submitted, that the application seeks to do no more than encourage the Court to undertake merits review which is impermissible. The adverse credibility finding in this case was a strong finding by the Tribunal and a finding which is available to the Tribunal as a decision-maker "par excellence" (ReMinister ex parte Durairajasingham (2000) 74 ALJR 405 at 417 [67]).
Reasoning
In addition to the submissions that have been referred to, it should be noted that during the course of oral submissions both counsel referred to the relevance, if any, of the Tribunal hearing being conducted by video‑link. It is important to commence my reasoning with specific reference to those brief submissions, which, in the case of the Applicant resulted in a submission being made that in this instance the fact that the Tribunal conducted the hearing by video-link of itself would lead to an inference that the Tribunal has not had any regard to the gender guidelines. The First Respondent submitted that in relation to the method of hearing, namely video-link that this was not relevant given that no complaint had been made about that process or issues raised which would indicate any difficulty arising from the process whereby the Tribunal sought to draw adverse credibility findings.
I have deliberately raised that question at the outset as it seems clear to me that an assessment of credibility of any witness, and particularly an Applicant seeking refugee status where claims are made which clearly involve, in my view, as a relevant factor the gender guidelines issued by the First Respondent's Department, then consideration of necessity would need to be given to the method of hearing. Where a Tribunal or indeed a Court elects to conduct a hearing by video-link and then seeks to make significant adverse credibility findings not simply confined to findings in relation to facts or inconsistencies, but rather findings as in this case specifically and adversely that the genuineness of the claims are adversely affected by a finding in relation to the Applicant's "manner, style and presentation of her claims", then it is incumbent upon the Tribunal to ensure if proper regard was being given to the gender guidelines that the hearing be conducted in a manner which at least provides the opportunity for the Tribunal to comply with those guidelines.
If a Tribunal hearing claims of this kind can truly be found to be acting in a manner consistent with the guidelines, then it is difficult having regard to that significant adverse credibility finding based upon the Applicant's manner, style and presentation, to avoid the conclusion that the Tribunal has disregarded the guidelines. Guidelines which require in part that the Tribunal should seek to ensure that it establishes rapport (paragraphs 3.19-3.21 of the gender guidelines) when dealing with "culturally sensitive communications" and in particular when assessing credibility/demeanour will be difficult to achieve where the hearing is conducted by video-link. Whilst no submissions were made by either party as to the method of the video‑link hearing, the Court can conclude that the video-link hearing in all probability would have involved the appearance of the Applicant on a television screen to the Tribunal.
There is no evidence before the Court to indicate whether the image of the Applicant on the television screen was a close-up image, a distant image, or whether indeed it was an image which enabled the Tribunal to properly and fairly make any assessment of the Applicant's “manner, style and presentation”. If the mode of hearing precludes a Tribunal from making a proper assessment of the manner, style and presentation of an Applicant's claims, then I find it difficult to conceive that a Tribunal in those circumstances would have any adequate opportunity to establish a rapport in a manner consistent with the gender guidelines or deal with culturally sensitive issues in an appropriate manner in all the circumstances.
It should also be noted that during the course of submissions reference was made to the words set out in a box subjoined to paragraph 3.27 of the gender guidelines which provides as follows:
“The fact that a woman failed to raise a gender-related claim of persecution on several occasions should not necessarily cast doubt on her credibility if it is raised at a later date and should not be responded to as if it does. The pertinent issue, of course, is whether or not the claimed event occurred and, in the protection visa class and refugee visa subclasses, whether it was for a Convention reason.”
It is also noted that during the course of submissions reference was made to examples of gender based treatment against women also set out in the box subjoined to paragraph 4.10 which provides as follows:
“Some examples of gender-based treatment against women which may constitute persecution in particular circumstances are:
·societal oppression of women – in some communities the status and behaviour of women has been dictated by a State sanctioned religious hierarchy
·denial of participation by women in the political, civil or economic life
·forced marriage – many societies practice arranged marriage and this in itself may not be a persecutory practice. However, the consequences of defying the wishes of one’s family when viewed against the background of the State’s failure to protect a person should be carefully considered.
·infanticide, forced abortion, female genital mutilation, which as serious impact on a woman’s physical and mental health.”
The extracts from the Tribunal's decision do not demonstrate that the Tribunal has acted in a manner consistent with those gender guidelines. The method of hearing adopted by the Tribunal was a method which would have precluded the Tribunal from embracing at least those gender guidelines which require the establishment of a rapport otherwise dealing with the sensitive issues and specifically making credibility findings. It is difficult to understand what credibility/demeanour findings could be made by use of a video-link facility. I note for example that paragraph 3.29 specifically provided as follows:
“3.29 Similarly, the level of emotional distress exhibited by a female Applicant during the recounting of her experiences should not automatically add more credibility to her claims than that of another who maybe very calm and quiet when describing a similar event. A lack of emotion displayed at interview does not necessarily mean that the Applicant is not distressed or deeply affected by what has happened. Cultural differences and trauma can often play an important role in determining demeanour.”
It is difficult to understand how a Tribunal, if it was acting in a manner consistent with that paragraph in the gender guidelines could have achieved an appropriate understanding and appreciation of the emotional distress exhibited by an Applicant recounting her experiences when it occurs by way of video-link. During the course of the hearing it is noted in the transcript (page 15) that the following appears:
“RRTM:This is the Mr O sent you money. You mean that?
ON: Yes. Mr O sent me the money and I came out here.
RRTM:Sorry I just wanted to ask you a little bit about you said you were raped.
ON: Yes.
RRTM: Can you tell me about that?
ON:I wrote that in my statement. I’m really confused, I’m a bit bad talking about. I’ve gone through it several times and many times while I was growing up.
RRTM:We don’t have to rush it you can take it easy and we can just go…
ON:I cannot… my aunty has let me down so much and these things have constantly happened to me and she’s not been there to help me. Whey my parents died I was about six years old “D” used to be with our household.
RRTM:I’m sorry I need to ask you about this because as I understood it that claim – I didn’t pick that up in your protection visa application. It seems to me that it’s something that’s come out later.
ON:There is no way, there is no way I could tell anybody about that when I had first come, delegate. I am human just like you are and I can’t meet a stranger and just tell them about my life. I mentioned it but it doesn’t come out clearly.”
Further difficulties were expressed by the Applicant in the transcript at page 16 where relevantly the following exchange occurs:
“RRTM:That’s right, I didn’t pick it up at the beginning so that’s why I needed to clarify it with you.
ON:These are very very hard things for me to talk about and I could not just the first week I came to Australia I could not just speak to S who was my representative at the time about them. I’m just so able to talk about them now because I’m living with nuns they are really helping me with this. In my first statement I did not tell S about my relationship with “R”. In my first statement I did not mention about Mr O. Yes I did not think he would refuse my statement. I’m able to do that now because I’ve found people that are helping me open up the bad situations that I’ve gone through and it’s still so hard, it’s not easy because the Ugandan Government is not taking care of us”.
Submissions were made in relation to those extracts concerning the difficulties experienced by the Applicant and to some extent
I understood the Applicant to criticise the Tribunal for its failure to what might be described as "picking up at the beginning" the difficulties of the Applicant. Whilst I do not criticise the Tribunal for any failure to pick up the difficulties which might have occurred or been evident in earlier material, it is clear from that extract that during the hearing itself the Applicant had what appears to be anticipated by the gender guidelines some significant difficulty in recounting the events. Again, the use of a video-link facility would make the task even more difficult. The mere fact that the video-link facility was used highlights and underlines the conclusion which I draw that the Tribunal in this instance has failed to act in a manner consistent with the gender guidelines.
Further, the findings by the Tribunal which were highlighted during the course of the Applicant's submissions, namely the specific findings that the Applicant "over an extensive period of time took no measures to seek help or redress in Uganda", combined with the further reference in its decision that the Applicant had failed to seek assistance from amongst others "the police", demonstrate that the Tribunal had focused on those matters without regard and/or allowance for those matters set out in the gender guidelines recited in the judgment of Gray J in Applicant M16 and otherwise referred to during the course of submissions.
In my view, applying the authority of Gray J in Applicant M16 the gender guidelines ought properly be regarded as relevant, and relevant in the sense that they go beyond being what is described by the First Respondent as merely ‘procedural’ issues. The guidelines should not be ignored in claims of this kind. Not only should they be expressly referred to but as the Court stated in SAAK, there should be some evidence that guidelines of this kind have been followed. I am satisfied on a proper reading of the decision of the Tribunal, both in its reasoning and in the method by which it conducted its hearing, that it has to a large extent ignored the gender guidelines. I am satisfied those gender guidelines in the present case ought to properly be regarded as relevant in the Peko-Wallsend sense that is relevant to the application under consideration by the Tribunal.
The guidelines, after all, constitute a policy applicable to this application and could not be regarded as so insignificant as to not materially affect the decision (see Wilcox J in Nikac referred to earlier in this judgment). There is no material before me which would demonstrate that in its reasons for decision the Tribunal had any adequate awareness, knowledge or other information concerning the gender guidelines. It is extremely unlikely that if the Tribunal had regard to the gender guidelines it would not have made reference to them in the same way that it made reference to the UNHCR handbook on procedures and criteria for determining refugee status. To refer to that document which applies generally to refugees and to then fail to refer to the gender guidelines which are specifically relevant to an application of this kind, clearly indicates that the Tribunal has effectively ignored the gender guidelines.
I do not accept, as submitted by the First Respondent, that a proper reading of the Tribunal's reasons would lead this Court to conclude that it has otherwise, in any event, acted in a manner consistent with those guidelines for the reasons given.
Conclusion
It follows therefore that the application should be allowed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 October 2006
4
9
0