MZZIF v Minister for Immigration
[2013] FCCA 2091
•10 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZIF v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2091 |
| Catchwords: MIGRATION – Refugee Review Tribunal – refusal of a protection visa – no matter of principle – application dismissed. |
| Minister for Immigration & Citizenship v SZRKT [2013] FCA 8 |
| Applicant: | MZZIF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 341 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 25 July 2013 |
| Date of Last Submission: | 25 July 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Watters |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms Latif |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed on 19 March 2013 and the Amended Application filed 4 July 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 341 of 2013
| MZZIF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
AS CORRECTED
This is an application pursuant to s 476 of the Migration Act 1958 (Cth) whereby the applicant seeks judicial review of a decision made by the Refugee Review Tribunal on 22 January 2013. The Tribunal affirmed the decision of a delegate of the Department of Immigration not to grant the applicant a Protection (Class XA) visa.
Background
The applicant is a 19 year old male and a Hindu Tamil Sri Lankan national. His parents and two siblings still live in Sri Lanka. The applicant arrived on Christmas Island on 25 July 2012 as an irregular maritime arrival.
The applicant completed high school and has a three month certificate in computer networking, however left Sri Lanka following his cousin’s arrest by the national army. In 2007, the applicant’s cousin was shot by the army when caught in crossfire between the Liberation Tigers of Tamil Eelam (LTTE) and the army at a cricket match. The applicant was standing beside his cousin during the incident and the army suspected both of them of having ties to the LTTE although neither has ever been involved with the LTTE. The cousin went to hospital, received treatment and was allowed to return home. In 2010 the applicant’s cousin went to Malaysia and lived and worked there for 2 years and returned in 2012. The cousin had no difficulty either departing or re-entering the country. However, in April of 2012, a few months after his return, the cousin was arrested and is now imprisoned in Colombo, held without charge and not been taken for a court investigation.
One year after the incident, in 2011 the army went to the applicant’s family home and although he was at school, the army told his parents that they were planning to conduct an investigation. Although the applicant’s parents told the army that he was at school, the army did not go there nor did they return to his home.
The applicant only left Sri Lanka in 2012 as before this he did not have a passport. Given his cousin’s arrest and detainment, the applicant fears that the army will conclude that he is connected to the LTTE.
The applicant says that Tamils are treated differently to Sinhalese in that they are not given the same opportunities and life is more difficult generally for them. The applicant could not find employment in the area of Sri Lanka where he lived as only Sinhalese are considered. He is fearful that the Criminal Investigation Department of Sri Lanka (CID) will conduct investigations as to why he came to Australia and they will discover he left the country illegally by boat.
The decision of the Tribunal set out the facts and circumstances at paragraphs 28 to 32 of the decision:
28. The applicant stated that after his cousin got out of hospital he went to the applicant’s parent’s house for five days and then to his own house where he stayed for three months to recover. After two years he went to Malaysia but during this period he only stayed at home. He was not visited by the police/army for this period. He did not have problems leaving the airport to go there. On his return after two years in Malaysia, enquiries were made of him at the airport but the applicant does not know what he was asked or how long he was there. His cousin opened his own business distributing biscuits to shops and then in April 2012 the CID arrested and took him away. He was taken to Boosa. His mother visits him once a week on a Sunday and his parents have been told that he has been detained because he belongs to the LTTE. I put to the applicant for comment that in his statement he said that Boosa prison is in Colombo and that country information indicated that it was in Galle and that this may make me doubt his credibility. He said he did not know if it had another name and it was not a prison but a building with a number of floors in Colombo.
29. I commented to the applicant that given his cousin had not been in the LTTE and that he had got through Colombo airport on two occasions and five years had passed since the shooting incident that I had doubt that the police would have any interest in him. He said he was detained now.
30. I asked the applicant about whether he had been of interest to the authorities and he said that in 2011 the police came to his house to look for him and said they had some issues but he was away studying the computer. His parents did not tell them where he was. As to whether the police came back to look for him he said he was shy and had not revealed the full details. He said he could not talk about it in front of his female support person and she left the hearing room. He said in January 2012, they came and took him away from his house. They told his parents they were taking him away for interrogation. His mother cried but the police still took him away. His father was not in the house because he was working. The applicant was taken to a camp and put in a dark room. All his clothes were removed and an unidentified man abused him in Sinhalese but he could not understand him. The man mistreated him by having sexual intercourse with him. Three people came into the room and hit him with a stick in the kidney area. He was detained for three hours. His clothes were detained and he was taken to the street where his house was and left. As to whether there was any further interest in him by the police he said his father was agitated and wanted to make a complaint but he was reluctant to disclose the demeaning acts. The police did not do anything after this incident but he lived in fear.
31. I put to the applicant for comment, in accordance with the requirements of s.42AA, that there was information that would be the reason, or part of the reason for affirming the decision under review. The information was that in his statement accompanying his protection visa and his interview with the delegate he did not mention the claim that he was detained and mistreated by the police in January 2012. I said this was relevant because this was a very important claim and his failure to do so would lead me to conclude that the events did not occur and to affect his overall credibility. He was advised that he could comment or respond now or he could ask for additional time. The agent asked for a break to consult with her client and agreed to a 10 minute break. After the break, the agent asked to make a submission on her client’s behalf to which I agreed. She asked if I had paperwork related to his cousin’s imprisonment and I said I had not. I gave her 7 days for the provision of this information. She said the applicant had told her the visit was from the army not the police and that he had not disclosed it because he wanted to forget about the incident because of the shame. He realises now that it was not a wise decision. I asked the applicant to comment about the information and he said he felt ashamed and that he was extremely sorry that he did not mention it before.
32. I commented to the applicant that given he had not been in the LTTE and that four to five years had passed since the shooting incident which occurred when he was on [sic] 13 years old at a cricket match, I doubted that the police would have had any interest in him. He said maybe there was some issue relating to the event and he wondered if he was subsequently harmed because of it.
Evidence given before the Refugee Review Tribunal
In an affidavit filed on 25 July 2013, the second respondent annexed a transcript of the hearing before the Refugee Review Tribunal on 13 December 2012.
At pages 15 to 16 of the transcript the applicant recounts the alleged incident of sexual assault saying:
[Tribunal Member]: So did the police ever come back to look for you?
[MZZIF]: The police came. I was shy and I have not revealed the full details.
[Tribunal Member]: So you’re saying that the police came again to look for you, is that –
[MZZIF]: Yes.
[Tribunal Member]: When did they come?
[MZZIF]: January the first month in 2012.
[Tribunal Member]: Were you there at the time?
[MZZIF]: I was in the house.
[Tribunal Member]: Okay. And what did the police say to you?
[MZZIF]: They are taking me away for some, for interrogation and my mother got agitated and she, ah started crying and, ah, the, the police ignored it and then, ah, they sort of took me away. At that point in time my father was not at the house, he was working.
[Tribunal Member]: And where did they take you to?
[MZZIF]: [inaudible] I was taken to the camp. I was kept in a dark room. I am, I am really a bit reluctant to give further details in the presence of…
[Tribunal Member]: Step outside –
[Interpreter]: I said the case worker has left room.
[Tribunal Member]: Yes that’s right. Tell me what happened.
[MZZIF]: They took me to the room, they remove all the clothes and they left me in the room, they put me in the room. A warrior person came inside, inside the room. I could not identify the person. He was abusing me in Sinhalese language so I could not understand. He misbehaved with me, ah sorry, ah then 3 people came inside the room. Ah, they played pornographic movies and then they had ah, they had a stick, [inaudible] with that stick they hit me in the kidney area.
[Tribunal Member]: You said that the first man misbehaved with you, what do you mean by that?
[MZZIF]: He had sexual intercourse, sexual activity, acts or, he performed sexual acts, ah sexual intercourse. They were shouting in Sinhalese language, ah I do not understand Sinhalese language I only know Tamil and they keep, ah, they kept on beating me.
[Tribunal Member]: And how long were you kept in that room?
[MZZIF]: I was, for approximately for 3 hours this went on.
[Tribunal Member]: And when you got out of the room, what happened?
[MZZIF]: Then after some time they, ah, they, ah, they gave, they returned my clothes and then I was taken through, um, through the street to where my house was located and then when we at my house they left me and went away.
[Tribunal Member]: So you said that they said things to you in Sinhalese, did they say anything to you in a language you could understand?
[MZZIF]: They shouted in Sinhalese language I could not understand.
[Tribunal Member]: Okay so that was in January 2012, what, did you have, was there any further interest into you, in you by the Police?
[MZZIF]: My father was quite agitated and he wanted to lodge a complaint about it but ah, I was, ah, I told him that I am reluctant to describe or disclose these, ah, ah, sort of, ah demeaning acts to anybody and I request my father not to lodge any complaint.
At page 17 (commencing at line 8) of the transcript the Tribunal Member confirms with the applicant as follows:
[Tribunal Member]: … I’m going to give you the opportunity to comment on some information, um, that I am required to formally put to you under Australian law. This is information that would be the reason or part of the reason for affirming the decision under review so I’ll ask you to explain why the information is relevant to my decision and I’m then going to ask you to comment or respond to that information. Now you don’t have to respond to that information you can ask for more, you don’t have to respond to it now, you can ask for more time to comment or respond. Okay, now the information is that in your statement accompanying your protection visa application and also in your interview with the delegate, ah, you did not mention, ah, your very important claim that you were detained by the Police in January 2012 and mistreated. Now this information is relevant because of the importance of such a claim, ah, but your failure to mention such a claim would lead me to conclude that you were not detained and mistreated in January 2012 and also to find that you’re not a credible witness overall. So, um, um, do you understand why the information is relevant to my decision?
The applicant’s response to the Tribunal Member’s question was that “I wanted to forget … ’. The Tribunal Member then tells the applicant that he may ask for additional time to respond to the information. At this point in the hearing the applicant’s female representative interjects and requests time to discuss the matter with the applicant. This is allowed. Upon return, the applicant’s representative comments on behalf of the client at page 18 (commencing at line 18) as follows:
[Applicant’s Representative] … just so that the record is accurate, um, I wanted to say that, um, [MZZIF] has confirmed during the break that the visit from the authorities and the subsequent mistreatment was actually from the Sri Lankan army, not the police. And thirdly, in relation to why this was not disclosed earlier, um, [MZZIF] has explained to me during the break that he simply wanted to forget about the incident because of the shame he feels about it. Um, I guess in hindsight he now realises that it was not a wise decision to only make that information available today. Um, and whilst he has told me that he finds it extremely difficult to discuss the circumstances of what has happened to him, ah, he is prepared to discuss this with you in more detail if you have any credibility concerns about, about the incident.
Relevant Country Information
In reaching its decision the Tribunal had regard to independent country information from sources including the Australian Department of Foreign Affairs and Trade, the United Nations High Commissioner for Refugees, the UK Home Office Operational Guidance Note and the International Crisis Group.
At para [56] of its findings, the Tribunal surmised:
56. The country information set out above indicates a generally improved situation for Tamils since the ending of the war with the UNHCR stating that there was no longer a presumption of eligibility for Tamils originating from the North and that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection. DFAT in particular have also recently commented that security situation in the north and east is greatly improved since the end of the military conflict, although incidents of violence can occur. They have commented that incidents of abductions have declined and have referred to the release of former LTTE cadres and the recent closure of the remaining IDP camp. A number of articles are referred to in written submissions and some of the information set out above indicates continuing human rights problems for Tamils in Sri Lanka. However in making my assessment, I have given far greater weight to the assessment by the UNHCR in its eligibility guidelines as to the circumstances for Tamils as it presents an authoritative and independent overall analysis of the situation for Tamils and the human rights situation in Sri Lanka. I note that the UNHCR have clearly stated that there exists substantial mistreatment of those suspected of having links with the LTTE. The UNHCR Guidelines mention the continuing disappearance of those suspected of being linked with the LTTE and note such persons as having a potential risk profile. I have also given substantial weight to the information from DFAT because it is very recent and they have been specifically charged with the provision of such information to the Australian government.
The Tribunal goes on at para [60]:
60. The DFAT country information referred to above provides that the Sri Lankan authorities have no procedures in place to identify failed asylum seekers and that there is no difference in the treatment of deportees or returnees whether they are Singhalese, Tamil or Muslim. It is also stated that their experience in managing the return of Sri Lankans who have made an asylum claim abroad has not shown that they are treated any differently to other deportees. Whilst I note there are some reports of the mistreatment of Tamil returnees provided by the applicant’s agents and others set out above these need to be weighed against other information such as that provided by DFAT that those who make an asylum claim abroad are not treated differently to other deportees and the individual circumstances of the applicant. I have given greater weight to the reports of DFAT, the UK Foreign and Commonwealth Office and the Danish Immigration Service that are authoritative and specifically charged with giving independent, overall reports of the human rights situation in Sri Lanka and other countries. I have also given more weight to the DFAT report of September 2012 because it is the most recent. I have also taken into account other reports such as the August 2011 comments of adjunct professor of political science at Temple University, who was conducting research on Sri Lanka, that people who left the country illegally and have no documentation upon their return are selected for screening; however, as mentioned already, they would be “safe” if they are not connected to any government-opposed activities. I have also taken into account the comments of the South Asia Regional Director of the UK Border Agency that they constantly monitor the country situation, and issues of safety on return have not arisen and that there is no evidence that those who were previously removed to Sri Lanka have been mistreated. Information from the Danish Immigration Service from contact with the British High Commission and Norwegian embassy that they have not heard of returning asylum seekers being mistreated or targeted adds to my assessment.
The Tribunal’s Findings
Upon considering the applicant’s claim, the Tribunal concluded in its findings and reasons that the applicant was not a credible witness at para [54], saying:
· The applicant claims that his cousin was shot by the authorities in 2007 after standing around after a cricket match. He claims that he was taken to hospital and was questioned by the police there. However, for over two years until 2010 he was not questioned any further by them or the subject of any interest. He was able to leave the country through the airport and return via the airport. Whilst the applicant says enquiries were made of him at the airport, he was not able to say what the cousin was asked about or how long he was stopped. On the applicant’s evidence, he was let through. He opened a business and it was not until April 2012, that the applicant claims that his cousin was detained by the authorities on suspicion of being involved with the LTTE. The applicant has claimed that his cousin was not involved with the LTTE and I do not find it plausible and do not accept that the authorities would be interested in his cousin for an incident claimed to have occurred five years previously and despite ample opportunity for them to have taken action against him.
· In his statement the applicant says that his cousin was detained in Boosa prison in Colombo. When it was put to him that country information indicates that this prison is actually in Galle he said he did not know it had another name and that it was not a prison but a building in Colombo with a number of floors. This explanation does not explain the inconsistency in where the place of detention was and detracts from his overall credibility.
· The applicant claims that in 2011, the authorities visited his house when he was not there. At the hearing he claims that the army returned in January 2012 and detained him and mistreated him in both a physical and sexual manner. However, despite the high degree of relevance and importance to his protection claims he did not mention this detention and the assaults at all in his statement accompanying his protection visa or his interview with the delegate. When these omissions were put to him to comment on he claimed that he did not do so because he was ashamed. Whilst I accept that victims of sexual violence can be very reluctant to talk about incidents of sexually abuse, he totally failed to mention on previous occasions even the act of being detained. I therefore do not find his account to be credible and find that it is recent invention designed to avoid the logical inference that the failure of the police to pursue him further after the claimed visit of 2011 meant that he was not of any interest to the authorities. [emphasis added]
· The applicant attended the cricket event and was standing around at a cricket match when he was only 13 years old. He does not have any association with the LTTE. I do not find it plausible and do not accept that given his age and the long passage of time, that if the authorities had any adverse interest in him they would wait four years before arriving at his family house to look for him.
In relation to the applicant’s illegal departure from Sri Lanka and being a failed asylum seeker, the Tribunal found at paras [61] and [62] of its decision:
61. As previously found, I do not accept that the applicant faces a real chance of being imputed with a political opinion as a supporter of the LTTE, now or in the reasonably foreseeable future. I therefore find, based on the overall weight and authority of the country information and the applicant’s individual circumstances that whilst he may be subjected to short term questioning upon his return I do not accept that this constitute[s] serious harm or significant harm. He does not face a real chance of serious harm, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of any actual or imputed political opinion or membership of a particular social group (failed asylum seekers or Tamil failed asylum seekers or returnees or failed Tamil asylum seekers returning from a Western country). Nor do I accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka that there is a real risk the applicant will suffer significant harm for these reasons.
62. It has been submitted that the applicant is at risk because he has illegally departed Sri Lanka. The evidence indicates that persons under the Immigration and Emigration Act can be given prison sentences from one to five years and fined between 50,000 rupees to 200,000 rupees. However very recent and authoritative information from DFAT states that this is seldom enforced and that in the post’s experience, no failed asylum seekers who have returned from Australia have been charged for offences related to their irregular departure from Australia on their arrival back in Sri Lanka. Given this information, I find that he does not face a real chance of persecution in the reasonably foreseeable future. Given this information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka that there is a real risk the applicant will suffer significant harm for this reason.
Applicant’s Grounds and Particulars
In his Amended Application, filed 4 July 2013, the applicant relies on the following ground and particulars:
1. The Refugee Review Tribunal erred in assessing the credibility of the Appellant’s claim to have been sexually assaulted without taking into account significant and relevant evidence.
Particulars
a. In Minister for Immigration and Citizenship v SZRKT, the Federal Court held that a failure to take into account significant and relevant evidence in assessing credibility could amount to jurisdictional error.
b. The Applicant is an ethnic Tamil from Sri Lanka who claimed, among other things, to have experiences persecution in January 2012 in the form of detention and sexual assault by the Sri Lankan police.
c. Prior to making his claim to be sexually assaulted, the Applicant specifically stated that he could not talk about it with his female support person in the room.
d. The Tribunal recognised that the question of whether the Applicant had been sexually assaulted had a ‘high degree of relevance’ to his claims to fear persecution and that victims of sexual violence might be ‘very reluctant’ to talk about their attacks. It went on to find, however, that the Applicant’s claim was not credible and a ‘recent invention’ because he had not raised it before the Tribunal hearing.
e. In making this finding, the Tribunal failed to take into account the fact that at every previous stage where the Applicant had been required to articulate his claims for asylum, he had been required to do so in the presence of unfamiliar members of the opposite sex.
f. Given that the Applicant had requested his female support person to leave the room before disclosing his sexual assault, the presence of members of the opposite sex was plainly relevant to his willingness to disclose the occurrence of the sexual assault.
g. Accordingly, by failing to have regard to the presence of members of the opposite sex in assessing the credibility of the Applicant, the Tribunal fell into jurisdictional error.
At the outset it is useful to deal with the question of relevance of Minister for Immigration & Citizenship v SZRKT [2013] FCA 8. The applicant relies heavily upon this decision to develop his case. The first respondent submitted in their written submissions that SZRKT was clearly wrong, and in the alternative should be confined to its own facts, and distinguished from this case. This was developed in some detail in the written outline. SZRKT is clearly a carefully reasoned analysis of the law by a member of the Federal Court. The decision is a decision by the Federal Court in its appellate jurisdiction dealing with an appeal from this Court. If there is to be any review of a decision of a Judge of the Federal Court exercising appellate jurisdiction over this Court it must be done elsewhere. It is important for the proper operation of the law in the Federal system, and the appropriate application of the doctrine of precedent, that Judges of lower level courts apply the law as set out in appellate judgments. I do not propose to deal with the arguments relating to the correctness of SZRKT. It is clearly a carefully reasoned and detailed judgment given by a Court that is an appellate Court in the same hierarchy as this Court, and therefore ought to be applied in this Court. Notably, since this case was heard (and the first draft of these reasons), the High Court has refused to grant special leave to appeal SZRKT.
Evidence before the Tribunal
Turning then to the evidence in this case. At Court Book page 14 it is clear that the initial interview was conducted in the presence of responsible adults supplied by “Maximus Solutions”, Ms Deborah Hill. Whilst Counsel for the Minister says there is no evidence as to the gender of the adult concerned I am prepared to accept that from the name the adult was female.
At Court Book pages 48 to 49 there is a statement prepared by the applicant in support of the Application. This statement was interpreted by a person whose first name was Rathika. It was taken by a Registered Migration Agent, Megan Ellks. Whilst I am prepared to accept that the Migration agent was female I am not able to determine on the first name alone with any degree of certainty the gender of the interpreter, in the absence of evidence either as to social norms for the gendered use of the particular first name or the identity of the person concerned.
It appears that the case officer acting as a delegate and making inquiries was one Karen Russouw, whose signature appears on pages 85, 104 and 113 of the Court Book. Based upon the name I am prepared to accept that the case officer concerned was female.
As a result, on the material before me it appears that the Applicant had a nominated support person from an agency initially, Ms Hill, and the delegate involved in the case Ms Russouw also interviewed him. However, he also had a female registered migration agent both at the time of completing statements placed before the Tribunal and at the hearing before the delegate.
The sexual abuse claim was not mentioned in the original claim document (see Court Book page 9), however on the applicant’s case this is explained by the presence of Ms Hill (see Court Book page 14). He did, however, even at that earlier stage have the benefit of Ms Ellks to represent him.
As Counsel for the respondent points out the applicant was given advice that he could request a male or female interpreter if he had a preference (see Court Book page 126) and that when completing the response to hearing invitation form (see Court Book 143) it was completed in handwriting and an interpreter for the Tamil language requested with the preference box “no preference” ticked rather than a tick for a preference for a male or female interpreter. This form was completed by Ms Ellks on the applicant’s behalf, as appears at page 144 of the Court Book.
There is an RRT hearing record sheet at page 146 of the Court Book which records the applicant being present, Ms Ellks as his representative, and another person “Amelia McDermott” who is described as a “case worker (observer)” as also being present. From the first name I am prepared to accept that this person is female and that therefore there was a female present when the matter was heard by Mr Corrigan, the relevant RRT member.
The relevance of all of this material is plain from the explanation the Applicant gave for not disclosing his allegation that the police had raped him earlier in his applications for protection visa. The Tribunal member discusses this as follows:
30. I asked the applicant about whether he had been of any interest to the authorities and he said that in 2011 the police came to his house to look for him and said they had some issues but he was away studying the computer. His parents did not tell them where he was. As to whether the police came back to look for him he said he was shy and had not revealed the full details. He said he could not talk about it in front of his female support person and she left the hearing room. He said in January 2012, they came and took him away from his house. They told his parents they were taking him away for interrogation. His mother cried but the police still took him away. His father was not in the house because he was working. The applicant was taken to a camp and put in a dark room. All his clothes were removed and an unidentified man abused him in Sinhalese but he could not understand him. The man mistreated him by having sexual intercourse with him. Three people came into the room and hit him with a stick in the kidney area. He was detained for three hours. His clothes were detained and he was taken to the street where his house was and left. As to whether there was any further interest in him by the police he said his father was agitated and wanted to make a complaint but he was reluctant to disclose the demeaning acts. The police did not do anything after this incident but he lived in fear.
31. I put to the applicant for comment, in accordance with the requirements of s.424AA, that there was information that would be the reason, or part of the reason for affirming the decision under review. The information was that in his statement accompanying his protection visa and his interview with the delegate he did not mention the claim that he was detained and mistreated by the police in January 2012. I said this was relevant because this was a very important claim and his failure to do so would lead me to conclude that the events did not occur and to affect his overall credibility. He was advised that he could comment or respond now or he could ask for additional time. The agent asked for a break to consult with her client and agreed to a 10 minute break. After the break, the agent asked to make a submission on her client’s behalf to which I agreed. She asked if I had paperwork related to his cousin’s imprisonment and I said I had not. I gave her 7 days for the provision of this information. She said the applicant had told her the visit was from the army not the police and that he had not disclosed it because he wanted to forget about the incident because of the shame. He realises now that it was not a wise decision. I asked the applicant to comment about the information and he said he felt ashamed and that he was extremely sorry that he did not mention it before.
On the material currently before me I am able to be satisfied that on each previous the applicant failed to disclose the allegations, there was a woman present. However, on at least one of those occasions, the woman present is his own advisor.
The question of whether or not the applicant was raped in the way that he alleged is certainly significant for his claim. So too was it centrally relevant that he had not mentioned this claim on previous occasions, which prima facie told against his credibility. The reason for failing to articulate the claim on earlier occasions was an important matter for the Tribunal member to take into account. It was apparent to the Tribunal member that the presence of the female support person (or at that point advisor) was a serious impediment to the applicant disclosing details of the rape. At the end of para 31 it’s recounted that the applicant gave the explanation that he felt ashamed and was sorry that he did not mention it before.
Casting the issue as being one of reluctance to speak in front of members of the opposite sex is not a mere construct. Ordinary experience demonstrates that the victims of rape (male or female) regularly present as unwilling or unable to make disclosures where they are present with members of the opposite sex (or sometimes even the same sex) as a result of the extreme trauma caused by such criminal acts. This issue requires careful consideration. However, the central reason for the failure to make earlier disclosures was recorded by the Tribunal member at para [30] and at the end of para [31], namely that the applicant felt ashamed about the incident and was very sorry that he did not mention it earlier. Ultimately at para [54], the Tribunal rejected the claim.
In looking at the matter as a whole it seems to me that the Tribunal did have regard to the issue of whether or not the applicant’s explanation for failing to mention the rape on an earlier occasion was sufficient to enable to Tribunal member to take a positive view of his credibility. The fact that the Tribunal did not recount in detail that there were women present on each previous occasion appears to me to be but one of the factual features of the central point being made, namely that the applicant did not make disclosure in a timely fashion because he felt ashamed. Ultimately it is not necessary for a Tribunal member to recount every possible aspect of the evidence, but to provide reasons sufficient to explain the decision and the reasonable process. In this case the Tribunal member has identified the key issues and clearly turned his mind to them. Had the Tribunal member not identified the reasons that the applicant gave for his failure to disclose the rape allegation sooner the decision may well have failed to properly consider the material. However the central arguments and reasoning relied upon by the applicant are identified by the Tribunal member and considered.
In this matter, although the application was filed out of time, it was convenient to hear the parties on the substance of the application, rather than having a hearing on the extension of time and following it with a hearing on the substantive application. Having found against the Applicant on the application there is no purpose to be served by granting the extension of time.
In the circumstances I am not persuaded that the applicant has established a reviewable error on the part of the Tribunal and the Application must therefore be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 10 December 2013
CORRECTIONS
Paragraph 31 was inserted to address the Applicant’s application for an extension of time.
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