SZTGF v Minister for Immigration
[2015] FCCA 2485
•11 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGF v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2485 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicant a Protection visa – whether the Tribunal acted unreasonably in not accepting applicant’s explanation for discrepancy between evidence given by applicant at hearing and evidence given by applicant in a statement submitted together with application for Protection visa – whether in rejecting applicant’s explanation for discrepancy the Tribunal relied on matters on which it was not entitled to rely – whether there was a material effect on Tribunal’s decision – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Minister for Immigration and Border Protection v SZSNW[2014] FCAFC 145 Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 320 ALR 467 Minister for Immigration and Citizenship v SZRKT & Anor [2013] FCA 317; (2013) 212 FCR 99 SZRHL v Minister for Immigration and Citizenship & Anor[2013] FCA 1093; (2013) 136 ALD 641 SZSNW v Minister for Immigration & Anor [2014] FCCA 134 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | SZTGF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2112 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 October 2014 |
| Date of Last Submission: | 4 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Westside Legal |
| Solicitors for the Respondents: | Ms S Given of Sparke Helmore |
ORDERS
The decision of the second respondent made on 13 August 2013 affirming the decision of a delegate of the first respondent made on 21 November 2012 not to grant the applicant a Protection visa is quashed.
The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.
Pursuant to item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the second respondent to review the decision of a delegate of the first respondent made on 21 November 2012 not to grant the applicant a Protection visa.
The first respondent pay the applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2112 of 2013
| SZTGF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa.
Claims for Protection
The applicant is a citizen of Sri Lanka, a Hindu, and of Tamil ethnicity. In a statement dated 8 September 2012 that formed part of his application for a Protection visa,[1] the applicant claimed that in August 2011, after the applicant and other persons from his village chased a “greaseman” into an army camp, police officers came to the applicant’s family home to ask him about the greaseman. The following day, as directed by the police, the applicant went to the police station. He was taken straight away into the army camp that was located behind the police station. The applicant was interrogated and beaten. The officers informed the applicant that he had to appear in the camp in the future at any required time, and threatened to kill him if he did not attend.
[1] CB50-52
From August 2011 to May 2012 the applicant was called into the army camp fifteen times. While there the applicant was forced to do labour work around the camp, including cleaning the toilets, buying cigarettes and alcohol for the officers, and he was treated in a grossly degrading manner. On the last of his visits to the camp, three drunken officers intended to rape the applicant. The applicant escaped after he threw a rock at one of the three officers who was trying to hold the applicant’s hands, and splashing soil in the eyes of the other two officers. The following morning, army officers came to the applicant’s home and beat up his parents to force them to inform the officers of the applicant’s whereabouts. On advice from his father, the applicant decided to flee Sri Lanka.
Tribunal’s reasons
The Tribunal did not find the applicant to be a credible witness.[2] The Tribunal found the applicant was at times evasive in his claims and answers to questions, and was unable to give detail or explain inconsistencies with his evidence.[3] Of “most concern” to the Tribunal was the applicant’s evidence about the alleged attempted rape.[4] The Tribunal said the applicant struggled to explain how he had managed to fight off his attackers if they were holding him down.[5]
[2] CB191, [59]
[3] CB191, [60]
[4] CB191, [61]
[5] CB191, [61]
The Tribunal’s disbelief in the applicant’s account deepened when, at the hearing before the Tribunal, the applicant said two officers attacked him, whereas in his statement of 8 September 2012 he claimed three officers attacked him.[6] The Tribunal found the applicant gave differing answers to why there was a discrepancy, including that there was an error in interpretation. For reasons I will set out later, the Tribunal was not satisfied with these explanations.[7] Further, the Tribunal said:[8]
I also find that the statement provided to the Department, signed by the applicant, does not only contain wording that there was three officers, not two, but it also then goes on to describe what the applicant did to three, not two, officers. I therefore find that this is not an issue of interpretation, of mistaken transcription, of an error by the lawyers of the applicant, of a mix-up of versions, but that the applicant has given two versions of events, and I find that this inconsistency means this event did not occur. I further find that this causes me to doubt that other things the applicant has said are true, and to doubt his general credibility.
[6] CB191, [61]
[7] CB191-193, [62]-[66]
[8] CB193, [66]
In addition, the Tribunal did not accept the applicant’s evidence about the greaseman incident, which, according to his claims, was the catalyst for all of the events which caused the applicant to flee Sri Lanka. The Tribunal was of the view that the applicant’s evidence was rehearsed, and appeared to be based on what he had heard, read, and seen on the Internet.[9] The applicant’s account was also implausible.[10] Third, the Tribunal found the applicant’s description of forced labour to be implausible.[11] The applicant said he was not told why he was forced to work at the army camp.
[9] CB193, [67]
[10] CB193, [67]
[11] CB195, [73]
Grounds of application - general
Although there are four grounds stated in the further amended application, the applicant only relies on grounds 1 and 4. Ground 1 is as follows:
The RRT’s decision regarding the applicants [sic] claim to have been [the] subject of sexual violence was so unreasonable that no reasonable Tribunal would have made it.
As to this ground, the applicant relies on two matters. The first is what the applicant submits was the Tribunal’s failure to “deal adequately” with the applicant’s explanation for the discrepancy between his account of the attempted rape which he gave in his application for a Protection visa, and the account he gave before the Tribunal.[12] The second matter on which the applicant relies is what he submits is the Tribunal’s failure to comply with its own guidelines in relation to persons who claim to have suffered sexual abuse.[13]
[12] Outline of Submissions Advanced by the Applicant, [15]
[13] Outline of Submissions Advanced by the Applicant, [17]
The second ground the applicant presses is ground 4 which provides:
The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act [sic]
Particulars
a.By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being questioned and investigated by the authorities at the airport, the reviewer failed to apply the test of serious harm pursuant to s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect [sic] & Another [2014] FCA 947 at [30] and [45].
Unreasonableness in Tribunal’s treatment of applicant’s explanation for discrepancy
To be in a position to consider this part of the applicant’s case, it will be necessary to:
a)identify the legal principles on which the applicant relies;
b)set out the evidence the applicant gave about the number of officers who the applicant says attempted to rape him;
c)set out the evidence that is relevant to explaining the discrepancy about the number of army officers; and
d)set out the reasons why the Tribunal did not accept the explanation given for the discrepancy.
Principles on which applicant relies
The applicant relies on the reasoning of Logan J in SZRHL v Minister for Immigration and Citizenship & Anor.[14] In that case the Tribunal rejected one part of the applicants’ claims that was based on the allegation that they had been subject to a “false case”. In rejecting that allegation, the Tribunal relied on its view that the applicants did not make this allegation in their application for a Protection visa. That view was incorrect. The primary judge found the error had “no jurisdictional significance”. Logan J disagreed.
[14] [2013] FCA 1093; (2013) 136 ALD 641
Logan J acknowledged that cases have drawn a distinction between the Tribunal’s failing to consider a claim and the Tribunal making “errant fact-finding”. However:[15]
. . . a conclusion that the claim as made has been dealt with and that the error is to be regarded as “errant fact finding” does not, in itself, mean that there can be no jurisdictional error. The end result of that errant fact finding may yet be that the Tribunal has conducted its “core function” of review in a way that is unreasonable in the sense described by Gageler J in Li (at [105]):
[105] “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason.” Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
[15] [2013] FCA 1093; (2013) 136 ALD 641 at [23]-[25]
Logan J concluded that the Tribunal’s reasoning as to the first appellants’ absence of credibility was illogical or irrational because it was based on a false premise; and that a decision so based was not within the range of possible acceptable outcomes.[16]
[16] [2013] FCA 1093; (2013) 136 ALD 641 at [35]
The question I must address, therefore, is whether the manner in which the Tribunal dealt with the applicant’s explanation for the discrepancy was such as to render its decision unreasonable.
Applicant’s evidence of alleged attempted rape
The applicant gave evidence of the attempted rape on at least three occasions. The first is in the applicant’s Irregular Maritime Arrival Entry interview (emphasis added):[17]
[17] CB16
The army asked me to come to their camp. It was a Wesak Festival on that day. So I went there. I had to do all the work. I was kept there that night. There were only 2 army there. The others went on leave. There was a party arranged that night. This party was in the playground in front of the camp, so me and the 2 army fellows were there at the party. They told me to buy cigarettes and all the alcohol for them. They had a party and it went on and they had alcohol. They did a lot of things which I’m ashamed to tell.
They forced me to have sex with them. They were under alcohol, they tried to rape me. One man was holding my hand. I was so upset that I threw sand on their face. I took a stone and beat him, so I ran away.
They tried to rape me. I was able to escape before they did it.
The second occasion on which the applicant gave evidence is the 8 September 2012 statement he annexed to his application for a Protection visa. In that statement the applicant said three officers attempted to rape him (emphasis added):[18]
Towards the end of the night, three drunken SLA officers intended to rape me. I was horrified when they tried to detain me and remove my clothes. Spontaneously, I defended myself by throwing a rock at one of them who was trying to hold my hands and splashing soil in the eyes of the two other. Luckily I managed to escape the situation after hard struggle and went home.
[18] CB51, [9]
The applicant attended a Protection visa interview on 13 September 2012. It is not clear, however, whether the delegate asked the applicant at that interview about the number of officers that attempted to rape him or whether the delegate simply relied on his written statement. The delegate’s decision only summarises what the applicant said at the interview “and in the statement of claims”.[19] The delegate’s decision appears to summarise what the applicant said in his 8 September 2012 statement about the incident, namely, that three drunken officers tried to rape the applicant and that the applicant claimed “he threw a rock at one of them and threw sand in the eyes of the other two and he ran home”.[20]
[19] CB103
[20] CB103
The third occasion on which the applicant gave evidence was at the hearing before the Tribunal:[21]
[21] Transcript attached to affidavit of P Rama (Transcript), T18.4-T19
M:How many people were there?
I:Two army and myself.
M:Two army or three army?
I:Two.
M:There was two army and you that’s all?
I:Yes.
M:But you said there were three army and you.
I:Is it in my statement
M:You tell me what happen?
I:Myself and the two army man [sic].
M:So, you and two army man and what did the two army man do?
I:One was holding on to my xxxxx and one was having his arm around my neck he broke two of the buttons of my shirt at that time I got really scared I grab a stone and hit the fellow behind shoulder and undressing me.
M:One was holding him behind and what was the other one doing?
I:He was holding on to my leg and tried to take my shirt off.
Evidence of or relevant to explanations for discrepancies
The first item of evidence that is relevant to explaining the discrepancy between what the applicant said to the Tribunal about the number of army officers who attempted to rape him and what is contained in his 8 September 2012 statement is to be found in the following passage from the transcript of the first hearing before the Tribunal:[22]
[22] T18.8-T19.3
M:In your statement you said there three drunken officer [sic] try to rape you. [Y]ou say you defended yourself by throwing rock at one of them who was holding your hand and splashing soil on the eye of the other two so was it…
Sutherland [applicant’s representative]:
Sorry to interrupt I just saw paragraph 9 of the statement I have got two drunken SLA officers I can’t see reference to three.
M:Well this is the statement I have dated 8/9/2012 paragraph 9.
Sutherland:
Towards end of the night says two drunken.
M:And what does it say from I defended myself?
Sutherland:
That actually two other there certainly reference made to two Drunken SLA officer.
M:The statement I have here that’s being submitted with the protection visa and signed 8/9/2012 is that what you have at the end of that one.
Sutherland:
Yes.
M:This says three drunken SLA officers, doesn’t say it is three it doesn’t mind the one that is being submitted with on the departmental file.
It appears, therefore, that Mr Sutherland had a form of the applicant’s 8 September 2012 statement which referred to two army officers, whereas the 8 September 2012 statement that was in the possession of the Tribunal stated there were three army officers. After the hearing was interrupted by a fire alarm, there was further questioning about the apparent discrepancies. Mr Sutherland reiterated that the statement he had was the same as the statement the Tribunal member held “except for the two drunken SLA officers in mine”.[23]
[23] T20.9
The second item of evidence relevant to explaining the discrepancy is the following passage from the transcript of the first hearing before the Tribunal:[24]
M:Mr [applicant] do you have explanation for why this [sic] two copies are different? I don’t know the interpreter who read this also said two army. I will accept if three (3) army. You have described that you defended yourself from three officers that is throwing a rock on one of them who was holding your hand and splashing soil on the eyes two officers. I don’t accept that there is interpreting error that two is taken together and what you did to three of them. That you put in the statement is that 3 army officers attempted to rape you. Unless you have an explanation if you could tell me ask [sic] to why the statement copy your representative have is different from the one I have.
I:Because the interpreter was reading the statutory declaration he said two army officer.
M:I only have this statement on your departmental file that means I have to take into account this information and I have tried to explain to you why I don’t purely except [sic] this is an interpreter issue.
I:Because when the interpreter read out the statement I notice the thing and told the interpreter it suppose to be two and not three it is wrong. After that he changed that I don’t know it is not my fault.
[24] T20.9-T21.5
In the exchanges that followed, it appears that the applicant’s evidence was that after he signed the statement he noticed that the statement incorrectly referred to three army officers, and that he pointed out the error to his lawyer.[25] He repeated this evidence after the Tribunal member asked why the applicant had not mentioned this before to the Tribunal:[26]
When the interpreter reading out the statement that time I noticed the mistake but when I signed the paper I didn’t realise the mistake, because I thought should be two but after that when I read the statement I pointed out in my statement it says three army officer and after that I told my lawyer to look there is a mistake there should be two army officers.
[25] T21.8
[26] T22.5
The Tribunal member then said he had two problems with the applicant’s evidence. One was that the Tribunal member had a “great deal of trouble believing” the applicant’s lawyer never followed up with the Department of Immigration (Department) or with the Tribunal that it may have been provided with an incorrect statement.[27] The other and “more important” problem is that the applicant did not bring to the Tribunal member’s attention that there was “a discrepancy in some papers that you have signed”.[28] The Tribunal member said:[29]
You didn’t bring to my attention at the very start when I asked if there was anything you wish to correct in your statement? I [sic] didn’t raise with me when I first raised the discrepancy between two and three army officers you raised at the end of the discussion of that issue. I am sorry but I don’t accept your explanation and it forces me to find that you have been inconsistent between your statement and what you told me today at the hearing.
[27] T22.7
[28] T22.8
[29] T22.8
The applicant said:[30]
Because it is not my fault I told everything before signing the papers everything there are three army and two army guys in my lawyers papers but how do I know you got a different one so it is not my fault.
[30] T22.9-T23.1
The third item of evidence relevant to explaining the discrepancy is what the applicant said in the second hearing before the Tribunal. At that hearing, the Tribunal member referred to his having at the first hearing “put to [the applicant] the discrepancy between your statement and your description of the event which cause me to doubt that it had occurred and to doubt your general credibility”;[31] that the applicant “didn’t raise with [the Tribunal member] when [the member] first raised it between the discrepancy between two and three”,[32] and that, at the end of the discussion, the applicant said “there is an error with transcribing the number of officers”, and that the applicant’s adviser said because the applicant “didn’t speak English [the applicant] didn’t understand there is a discrepancy in the statement, but I pointed out to you that you would had an interpreter at that time and had signed it”.[33] The Tribunal member then asked the applicant whether he had anything further he would like to say about “that concern of mine”.[34] The applicant said:[35]
. . . . This happen with two people, the incident. I did say exactly like that to my lawyer. Saying, that there were two people.
After the interview it was read back to me, it was read as two. They did read back as two. I can’t converse in English well I am ok reading in English. I signed and gave it to them.
After signing I realised the statement it was three. So I met the lawyer again after that I said to the lawyer there are mistake and need to be corrected he said ok and he changed it and gave it to me after changing it.
They gave me a copy and send of [sic] a copy and don’t know what happen I only know what is being given to me the key thing is that this incident had happened and two people as I said.
[31] Hearing day 2 T3.1
[32] Hearing day 2 T3.2
[33] Hearing day 2 T3.3
[34] Hearing day 2 T3.4
[35] Hearing day 2 T3.5
The fourth item of evidence relevant to explaining the discrepancy is contained in a submission the applicant’s legal representative made to the Tribunal after the second hearing:[36]
Your first area of concern related to the apparent discrepancy between the information contained in the written statement provided to the Department of Immigration which states that three men were involved in the attempt to assault him in xx and our client’s earlier and subsequent evidence that only two men were involved in the attack. During the hearing Mr [applicant] stated that when reviewing the statement shortly after it was prepared he realized that it contained errors and asked the agent assisting him to amend it. As pointed out during the hearing on the statement contained in our files refers to two attackers. We have contacted the agent who assisted Mr [applicant] to prepare this statement. It is now nearly a year since Mr [applicant] statement was taken and the agent does not recall the specifics of his case. However, it is clear that an amended statement correcting the errors in the initial statement was prepared immediately or shortly after the first draft was provided to Mr [applicant] to review. It appears that the wrong version of the statement was provided to the Department.
[36] CB162
The Tribunal’s reasons
The Tribunal found the applicant had “produced two different versions of the event, not because of an error, but because he has fabricated this event”;[37] and the Tribunal so found because it did “not accept the explanations of the applicant or his representatives”.[38] The Tribunal relied on a number of matters in arriving at this conclusion. First, the applicant, having been given “several opportunities to explain that there was a discrepancy in the statements”, “provided different explanations” for the discrepancies.[39] Second, the Tribunal was of the view that the applicant ought to have informed the Tribunal of the discrepancy at the start of the hearing when he was asked whether everything in his statement was true and correct.[40] Third, the Tribunal was of the view that the applicant and his legal representative ought to have brought to the attention of the Department and the Tribunal that there were two different statements, one which stated there were three officers, and one which stated there were two:[41]
If there was a substitution, then I would have expected the applicant or his advisors to have brought this to the attention of the Department or the Tribunal earlier. [E]ven if this had not been done, when I raised this issue with the applicant at the hearing, he did not immediately explain the discrepancy.
[37] CB193, [65]
[38] CB193, [66]
[39] CB193, [66]
[40] CB192, [63]
[41] CB193, [65]
Did the Tribunal act unreasonably?
The Tribunal did not accept any part of the applicant’s explanation for the discrepancy between the account of the attempted rape the applicant gave before the Tribunal and the account he gave in his statement that was provided in support of his application for a Protection visa. In my opinion, however, it was not reasonably open to the Tribunal not to accept the applicant’s explanation for why the statement referred to there being three officers involved in the attempted rape whereas the applicant, in his evidence before the Tribunal, said there were only two army officers involved. That explanation was that the applicant had incorrectly signed a statement that referred to three army officers, that error had been rectified by the preparation of an amended statement, and that, rather than attaching the amended statement to the applicant’s application for a Protection visa, the applicant’s representative had attached the incorrect statement.
First, the applicant’s representative had with him at the time the issue arose on the first day of the hearing a version of the applicant’s 8 September 2012 statement that referred to two, not three army officers. From the transcript it is clear that the applicant’s legal representative was surprised that the Tribunal had a statement that referred to three army officers being present. That bespeaks error in the statement that had been provided to the Department with the applicant’s application for a Protection visa. It also reveals that Mr Sutherland had not previously been aware of the error.
That there was an error was explicitly confirmed by the submission the applicant’s representative made to the Tribunal after the second hearing. The representative said “that an amended statement correcting the errors in the initial statement was prepared immediately or shortly after the first draft was provided to” the applicant and that it “appears that the wrong version of the statement was provided to the Department”.[42] That error is even more powerfully confirmed by the submission the applicant’s representative made to the delegate on 24 September 2012.[43] In a section beginning with the words “Our client’s claims”, the submission repeats the substance of paragraph 9 of the applicant’s statement of 8 September 2012, except it refers to two, not three SLA officers:[44]
Towards the end of the night, two drunken SLA officers intended to rape him. He was horrified when they tried to detain him and remove his clothes. Spontaneously, he defended himself by throwing a rock at one of them who was trying to hold his hands and throwing soil in the eyes of the other two. Luckily he managed to escape the situation after hard struggle and went home.
[42] CB162
[43] CB82 ff
[44] CB83 (emphasis added)
This indicates that the representative believed that the statement that had been provided to the Department in support of the applicant’s application for a Protection visa stated that two army officers attempted to rape the applicant. In other words, the representative was not aware that the Department had been provided with a version of the 8 September 2012 statement that stated there were three, rather than two, army officers.
Second, the Tribunal reasoned that, had the explanation the applicant and his representative given been true, they would have informed the Tribunal of the discrepancy earlier than they did; and the fact the applicant and his representative did not do so indicates the explanation they gave is incorrect. This reasoning, however, was reasonably open to the Tribunal only if it was reasonably open to the Tribunal to find that, if the applicant’s explanation were true, the applicant and his adviser would have been aware before the hearing that the Department had been sent a statement that referred to three army officers. On the evidence that was before the Tribunal, however, it was not reasonably open to the Tribunal to so find. As I have already noted, the evidence shows that Mr Sutherland, the applicant’s representative, first became aware of the issue at the Tribunal hearing; and, as I have also noted, the applicant’s representative’s submission of 24 September 2012 shows that the applicant’s representative believed that the statement that was provided to the Department was one which claimed there were two, not three officers, involved in the attempted rape of the applicant. The occasion on which the applicant and the representative first became aware that the Department had been sent the incorrect statement was at the hearing before the Tribunal; and when they became aware of that fact, the applicant provided his explanation.
The Tribunal’s conclusion, therefore, not to accept the applicant’s and his representative’s explanation for the discrepancy between the reference to three officers in the 8 September 2012 statement that the Tribunal held, and the evidence the applicant gave at the hearing that there were two army officers, was irrational. It was a conclusion that, on the material that was before the Tribunal, no reasonable Tribunal could reasonably have made. Further, one of the grounds on which the Tribunal relied in not accepting the applicant’s explanation for the discrepancy, namely, that the applicant and his representative did not raise the discrepancy earlier than they did, was also irrational. The Tribunal considered the applicant’s not having raised the discrepancy earlier than he did to be “significant” and the Tribunal directly relied on that matter as indicating “that the applicant has produced two different versions of the event, not because of an error, but because he has fabricated this event”.[45]
[45] CB193, [65]
I have found that the Tribunal acted irrationally, and therefore unreasonably, in not accepting the applicant’s explanation for the discrepancy between the statement the applicant provided to the Department and the evidence he gave before the Tribunal. The question that arises is whether it can be said that this irrationality had no material effect on the Tribunal’s decision. This question arises particularly because the Tribunal found that even if there was an error as the applicant claimed, the applicant’s statement “then goes on to describe what the applicant did to three, not two, officers”. The Tribunal concluded:[46]
“I therefore find that this is not an issue of interpretation, of mistaken transcription, of an error by the lawyers of the applicant, of a mix-up of versions, but that the applicant has given two versions of events, and I find that this inconsistency means this event did not occur.”
[46] CB193, [66]
In my opinion, the Tribunal’s unreasonably not accepting the applicant’s explanation for the discrepancy cannot be said not to have had a material effect on the decision it made to affirm the delegate’s decision. In a separate part of its reasons, the Tribunal in part relies on its not accepting the applicant’s explanation for the discrepancy for concluding that “the applicant has produced two different versions of the event, not because of an error, but because he has fabricated this event”.[47]
[47] CB193, [65]
This part of ground 1, therefore, succeeds.
Failure to comply with guidelines
The applicant submits the Tribunal failed to apply in its consideration of the applicant’s claims the principles contained in the “Guidance on Vulnerable Persons” (Guidelines) which was jointly issued by the Tribunal and the Migration Review Tribunal in June 2012. The Guidelines define a vulnerable person as “a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed”.[48] The Guidelines identify some factors that can affect a person’s ability to participate in the process. One of those factors is “[p]hysical or psychological abuse and trauma” which captures “victims of abuse, torture or extended periods of stress and trauma who continue to experience significant anxiety and depression”.[49] The Guidelines deal with the means by which vulnerable persons may be identified,[50] and lists strategies to assist persons with different types of vulnerability. In the case of vulnerable persons who are impaired because of torture or other traumatic experience, those strategies include encouraging the person to bring a friend or relative, explaining to the person that it may be necessary to ask questions about difficult or upsetting matters, and showing the Tribunal wants to understand why the person is distressed.
[48] Guidelines, [5]
[49] Guidelines, [6]
[50] Guidelines, [11]-[13]
The applicant relies on the reasoning of Judge Driver in SZSNW v Minister for Immigration & Anor.[51] In that case his Honour found that, for three reasons, the Independent Merits Reviewer (Reviewer) acted unreasonably in rejecting an applicant’s claims based on sexual torture. First, the Reviewer made an adverse credibility finding based on a false actual premise that the applicant did not make a claim based on sexual torture when he was first detained in Christmas Island. Second, the Reviewer paid no regard to the obvious reluctance on the part of applicant to discuss the details of the torture during the Refugee Status Assessment interview. Third, the Reviewer “failed to inform himself of the correct approach to dealing with claims of sexual torture as set out in the” Guidelines.[52] An appeal against Judge Driver’s orders was dismissed by the Full Federal Court.[53] The Full Court, however, did not consider Judge Driver’s reliance on the Reviewer not consulting the Guidelines. Thus, there is no authority binding on me for the proposition that a failure by a Tribunal to have regard to the Guidelines may render a Tribunal’s decision unreasonable.
[51] [2014] FCCA 134
[52] [2014] FCCA 134
[53] Minister for Immigration and Border Protection v SZSNW[2014] FCAFC 145 (Mansfield, Buchanan, Perram JJ)
Even if there were such a principle, there is nothing in the material before me to suggest that the Tribunal was, or ought to have been, aware that the applicant was a vulnerable person. That the applicant claimed he was a victim of sexual assault did not by itself render the applicant a vulnerable person within the meaning of the Guidelines. The applicant had a representative during the hearing. The transcript reveals that the applicant understood the questions that were being asked of him and he had no apparent difficulty in answering the questions. Because there was nothing that could reasonably have suggested to the Tribunal that the applicant was a vulnerable person, the occasion for the applicant to consider the Guidelines did not arise. The Tribunal, therefore, did not act unreasonably by not consulting the Guidelines.
This part of Ground 1, therefore, fails.
Ground 4
Ground 4 explicitly relies on the reasoning of North J in WZAPN v Minister for Immigration and Border Protection.[54] The High Court has upheld an appeal from his Honour’s orders in which the High Court disapproved of his Honour’s reasoning.[55] Accordingly, ground 4 fails.
[54] [2014] FCA 947
[55] Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 320 ALR 467
Additional ground
There is potentially an additional ground on which the Tribunal could be said to have committed a jurisdictional error. And that arises from the Tribunal’s not referring in its reasons for decision to two items of information when assessing the applicant’s explanation for the inconsistency between what the applicant said at the hearing and what is stated in the 8 September 2012 statement that was submitted to the Department. The first was the applicant’s having stated in his Irregular Maritime Arrival Entry interview that it was two army officers that attempted to rape him. The second was the applicant’s representative’s submission to the Delegate in which the representative described the applicant as claiming that two army officers attempted to rape him. Had I not found that the Tribunal’s decision was unreasonable because it was based on irrational conclusions, I would have invited submissions from the parties on whether the Tribunal considered these two items of information and, if not, whether that resulted in the Tribunal making a jurisdictional error.
Conclusions and disposition
The Tribunal affirmed the delegate’s decision largely because it found the applicant was not a credible witness. That finding, in turn, was based largely on the Tribunal’s finding that there was an inconsistency between the evidence the applicant gave to the Tribunal at the hearings and the 8 September 2012 statement that the applicant had submitted to the Department in support of his application for a Protection visa; and on the Tribunal’s rejecting the applicant’s explanation for the inconsistency. On the material that was before the Tribunal, it was not reasonably open to the Tribunal to reject the applicant’s explanation for at least part of the inconsistency, that explanation being that the applicant’s representative had erroneously provided to the Department the 8 September 2012 statement which referred to three army officers attempting to rape the applicant rather than a statement that stated that two army officers attempted to rape the applicant. It was also not reasonably open to the Tribunal to reject the applicant’s explanation for the reason that if the explanation were true the applicant would have informed the Tribunal earlier than he did of the provision to the Department of the incorrect statement. The Tribunal’s unreasonable rejection of the applicant’s explanation for the inconsistency cannot be said not to have had a material effect on the Tribunal’s decision. For that reason, the Tribunal’s decision will be set aside.
I propose, therefore, to order that the Tribunal’s decision be quashed. Because of item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth), it is the Administrative Appeals Tribunal that must determine the applicant’s case according to law. I propose, therefore, to order that the Administrative Appeals Tribunal be added as a party, and that it determine the applicant’s application for review according to law. I also propose to order that the Minister pay the applicant’s costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 11 September 2015
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