SZTKP v Minister for Immigration

[2014] FCCA 1683

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1683

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant disbelieved in certain respects and his fear found not to be well-founded – whether the Tribunal overlooked an integer of the applicant’s claims, denied him procedural fairness or acted unreasonably considered.

Legislation:

Migration Act 1958 (Cth), s.422B

Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1
Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88; [2005] HCA 72
Commissioner for ACT Revenue v Alphaone P/L (1994) 49 FCR 576
Minister for Immigration v Li (2013) 297 ALR 225; [2013] HCA 18
Minister for Immigration v Singh [2014] FCAFC 1
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration v SZMOK (2009) 110 ALD 15
Minister for Immigration v SZSNW [2014] FCAFC 145
Minister for Immigration v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59
Saeed v Minister for Immigration (2010) 241 CLR 252; [2010] HCA 23
SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63

SZRHL v Minister for Immigration [2013] FCA 1093

SZSNW v Minister for Immigration & Anor [2014] FCCA 134

VAAD v Minister for Immigration [2005] FCAFC 117

Applicant: SZTKP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2558 of 2013

Judgment of: Judge Driver

Hearing date: 30 July 2014

Date of Last Submission: 9 October 2014

Delivered at: Sydney

Delivered on: 14 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Bodisco, with Mr Little

Solicitors for the Applicant: Michaela Byers

Solicitors for the Respondents:

Ms D Watson

Australian Government Solicitor

ORDERS

1. The application as amended on 9 September 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2558 of 2013

SZTKP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 30 September 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant claimed to fear harm from the Sri Lankan authorities because of an imputed political opinion supportive of the Liberation Tigers of Tamil Eelam (LTTE).  The applicant is a man from Jaffna in Sri Lanka.  He arrived undocumented in Australia on 16 September 2012 and was refused immigration clearance.  He had travelled by plane to Australia using a United Kingdom passport.  However, he presented his Sri Lankan passport to an officer of the Minister’s Department once he had indicated his intention to seek protection.  On 16 September 2012 the applicant was interviewed at Perth airport.

3. The applicant there stated:

   a)that he was born at a named location near Jaffna, Sri Lanka[1];

   b)he was born on a specified date in 1984[2];

   c)that his parents and sister live in a named location near Jaffna[3];

   d)that he speaks Tamil[4].

   [1] Court Book (CB) 2

   [2] CB 2

   [3] CB 3

   [4] CB 3

4. The applicant told the officers of the Minister’s Department that he left Sri Lanka “because of the country’s situation. People are getting disappeared.”[5]

   [5] CB 6

5. On 8 October 2012, the applicant applied for a protection (Class XA) visa[6].

   [6] CB 8

6. The applicant affirmed:

   a)that he speaks Tamil[7];

   b)that he is of Hindu religion[8].

   [7] CB 14

   [8] CB 14

7. By way of a statutory declaration attached to the application, the applicant affirmed[9]:

   [9] CB 39

   I left Sri Lanka because I fear being kidnapped and killed.

   There is a van occupied by masked men that are kidnapping people associated with the Liberation Tigers of Tamil Eelam (LTTE). I believe the occupants of the van are from the Sri Lankan Army.

8. The applicant went on to affirm various associations he had with the LTTE. This drew him to the attention of the Sri Lankan Army. In the applicant’s words: “The SLA … believe I am involved with the LTTE.”

9. On 12 March 2013, the applicant was notified that the Minister’s delegate had refused the application for a protection (Class XA) visa[10].

   [10] CB 89

10. On 13 March 2013, the applicant applied to the Tribunal for review of the delegate’s decision[11].

    [11] CB 116

11. On 23 April 2013, the applicant received an invitation to appear at the hearing[12].

    [12] CB 121

12. On 11 June 2013, the applicant’s advisors submitted comprehensive written submissions regarding the applicant’s claims[13].

    [13] CB 128

13. On 13 June 2013, a hearing was conducted of the Tribunal.

14. After the Tribunal hearing (on 14 June 2013) the applicant’s advisor forwarded a copy of a translation of an arrest warrant to the Tribunal.  The document had apparently previously been provided to the Tribunal in untranslated form[14].

    [14] see Tribunal decision at CB 215[25]

The judicial review application

1. These proceedings began with a show cause application filed on 21 October 2013.  At the trial of this matter on 30 July 2014 I gave leave for the applicant to rely upon an amended application filed in court on that day.  There are two grounds in that application:

   1. The RRT failed to deal with the full integers of the Applicant’s claim.

   Particulars

   a. The RRT failed to deal with a claim squarely raised during the hearing that the Applicant had been detained in Jaffna in 2007 for two days and sexually assaulted and had avoided disclosing full details of the matter because he did not feel comfortable talking about these things in front of women.

   2.      The RRT denied the Applicant procedural fairness.

   Particulars

   a. The RRT failed to put the Applicant on notice that it did not accept the Receipt of Arrest as true and that it had been fabricated so as to substantiate his claims, denying the Applicant an opportunity to lead further evidence and/or make submissions regarding the [provenance] of the document.

2. I have before me as evidence an affidavit by the applicant’s solicitor, Michaela Byers made on 1 July 2014, to which is annexed a transcript of the Tribunal hearing conducted on 23 June 2013.  I also received as evidence the book of relevant documents (court book) filed on 18 November 2013.  The parties both made oral and written submissions.

3. During argument on 30 July 2014 I queried with counsel for the applicant why an allegation of unreasonableness had not been raised, having regard to some similarities between this case and earlier proceedings where unreasonableness had been dealt with as an issue[15]. I gave the parties the opportunity to make post hearing submissions, limited to the relevance if any of authorities on the issue of unreasonableness.  The applicant filed further submissions on that issue on 3 September 2014.  The Minister’s solicitors, in response, noted that unreasonableness had not been raised as an issue in the amended application.  I indicated through my associate that I was minded to grant leave for a further amended application to be filed, with the Minister having the opportunity to make further post hearing submissions on that issue, noting that the issue had been raised at the trial of the matter during oral argument. That opportunity was taken up in the form of further submissions filed on 9 October 2014.

   [15] SZSNW v Minister for Immigration & Anor [2014] FCCA 134; affirmed on appeal in Minister for Immigration v SZSNW [2014] FCAFC 145

4. A further amended application was filed on 9 September 2014 raising the additional ground:

   3. The Tribunal made a finding so unreasonable that no reasonable person would have made it.

Consideration

Ground 1 – did the Tribunal fail to deal with an integer of the applicant’s claims?

1. The applicant contends that the Tribunal failed to deal with the claims squarely raised during the hearing before the Tribunal, that he had been detained in Jaffna in 2007 for two days and sexually assaulted, but had avoided disclosing full details of the matter because he did not feel comfortable talking about these things in front of women.

2. During the hearing and as recorded at page 7 of the transcript, the following exchange occurred:

   MEMBER:     Now there’s another new claim that hasn’t been made before, and that is you now claim in Colombo in 2007 when you were detained for 2 days, that you  were naked and the authorities took photos on their mobile phone and they laughed at you.

   APPLICANT: That happened in Jaffna camp.

   MEMBER: Well that’s not what the submission from your advisor says.

   APPLICANT: Since 2006 I was taken to the army [camp] many times and that’s the time that tied me naked and had ants underneath me, they sexually assaulted me in many ways.

   MEMBER: Well you’ve never mentioned that before.

   APPLICANT: The interviews I had with ladies, women they are. I was shy to mention about the sexual side of things.

   MEMBER: That could be an excuse and it could be that it just never happened and you are just making it up.

   APPLICANT: I come from a very small village and I’m not used to talking these things in public. It was a very uncomfortable feeling for me to share these things in public.

3. The exchange went on as recorded at page 8 of the transcript:

   MEMBER: And when do you say you were sexually assaulted and how did it happen?

   APPLICANT: In 2006.

   MEMBER: And what happened?

   APPLICANT: They took my clothes off and there were lots of ants on the floor, they ask me to lie down and they took photos of me and was all the jokes they made, they laughed and took photos.

   MEMBER: Anything else?

   APPLICANT: They beat me up with a rod in the sexually in the anus, they harmed me in that way, and then they torture.

   MEMBER: If that happened and I’ve asked you already, but if that happened why wouldn’t you say that before?

   APPLICANT: I was really shy to talk in front of ladies, now I am in a situation where I have no other optional choice, so I’m saying everything today. (errors in original)

4. The exchange in turn refers to a reported incident made in an earlier iteration of the applicant’s written claims.  As stated in the 11 June 2013 submissions made by the applicant’s advisors[16]:

   In 2007, [the Applicant] went to Colombo. The authorities suspected that he was a member of the LTTE and arrested him. The authorities tormented our client by tying him up whilst he was naked, taking photographs of him on their mobile phones and laughing at him. Understandably, [the Applicant] felt uncomfortable about mentioning these details in front of the women present at the DIAC interview.

   [16] CB 130-131

5. The applicant submits that the Tribunal has failed to deal with an aspect of the applicant’s claim; namely that he had been detained and suspected of being a member of the LTTE when the SLA had detained him in Jaffna in 2007 and sexually assaulted him in the circumstances described in the Tribunal hearing, and that he had avoided speaking of such things due to their sensitive nature.

6. The applicant explains that the issue posed by the failure to deal with the matter is that it involved a failure to deal with his explanation for not having raised the matter earlier:

   a)clearly, the matters described are intimate and sensitive in nature;

   b)clearly, a possible explanation for raising the matters at earlier iterations arises in circumstances where the delegate and the advisor were female;

   c)this explanation appears to have been side stepped in the Tribunal’s dealings with these matters – which make no mention of their sensitive origins or of the explanation posed by the applicant’s evidence during the hearing and in the correspondence from his then advisors.

7. The applicant complains that the Tribunal did not deal with that aspect of his claims. There is “no reference” to the sexual assault claim in the Tribunal’s otherwise extensive reasons for decision. The sexual assault claim in and of itself could have been dispositive of the review of the delegate’s decision. However, there was “no reference” to the explanation provided for his avoidance of the details previously, or the sensitive nature of the claims as made.

8. The applicant contends, based on these facts, that the Tribunal fell into jurisdictional error through its failure to deal with the sexual assault claim in all its component integers.  The applicant relies upon the decision of the Federal Court in NABE v Minister for Immigration (No 2)[17].  The applicant notes that the Tribunal did not deal with the sexual assault claim in its findings and reasons expressly although it did refer to “new claims” made by the applicant.  The applicant invites the Court to draw an inference that the Tribunal “sidestepped” the sexual assault claim.

   [17] (2004) 144 FCR 1 at 18, [58] and [59]

9. I accept the Minister’s submission that the Tribunal should not be taken to have failed to deal with the issue raised by the applicant at the Tribunal hearing.

10. In answer to this ground it must first be noted that the applicant seeks to bundle up a claim; being detained during which time he was sexually assaulted, and a reason why he did not make this claim earlier; being that he did not want to raise this detail before women.

11. The claim of sexual assault is not a stand-alone claim which needed to be the subject of specific consideration by the Tribunal. The claim was that the applicant was suspected of being involved with or supportive of the LTTE and had been detained because of that and that, in the course of that detention, he had been mistreated, including being sexually assaulted.  The applicant was not claiming that for some other reason independent of his claim of being of interest to the authorities and fear of being detained for that reason that either he was sexually assaulted or feared being sexually assaulted on his return. In my opinion, the Tribunal properly dealt with the claims advanced before it.

12. The Tribunal noted in its decision that the applicant’s initial claim when interviewed at the airport was that he came to Australia because “People are getting disappeared.  [He] Thought the same would happen to him”[18]. When his application for a protection visa, prepared with the assistance of a migration agent and solicitor, was lodged, his statutory declaration stated that he feared being kidnapped, the SLA detained him in 2006 in a camp near his home for questioning and his hands were tied together and he was made to walk through ants that would bite him, and that in 2007 in approximately August, the police detained him for two days in Colombo and he was questioned about the LTTE, beaten, kicked and stepped on[19].

    [18] CB 215 at [26] and see airport interview CB 1-7

    [19] CB 40

13. The applicant gave a similar account of these two incidents to the delegate[20]. I have also had regard to the account set out in the Tribunal decision of the delegate’s interview at [28][21].

    [20] see CB 97-8

    [21] CB 216

14. In a pre-hearing submission, the applicant’s representative raised for the first time that in 2007, in Colombo, the authorities “tormented our client by tying him up whilst he was naked, taking photographs of him on their mobile phones and laughing at him. Understandably, [the applicant] felt uncomfortable about mentioning these details in front of the women present at the DIAC interview.”[22].

    [22] CB 130-1 at [10]

15. The Tribunal noted in its decision that the applicant stated at the hearing when questioned about this that this did not happen in Colombo (contrary to the representative’s submission) but happened in Jaffna, which is a reference to the detention in 2006 by the SLA (again contrary to the representative’s submission that this occurred in 2007). The Tribunal then sets out his evidence on this issue, together with his explanation that he had not mentioned it before because he was shy to talk in front of ladies[23]. It is noted in the Tribunal decision that the applicant claimed not only that he had been made to take off his clothes, lie on the floor with ants and have photos taken, but that he had been sexually assaulted with a rod. This was the first time that a claim of sexual assault had been made, that claim not having been made in the representative’s submission, nor in any earlier submission/declaration or interview.

    [23] CB 218 at [33]

16. The transcript of the hearing, as well as the decision record, demonstrates that the Tribunal discussed its concerns about the applicant raising further claims which had not previously been made in relation to a number of matters, including the claims regarding being forced to take off his clothes, being photographed and being sexually assaulted.

17. It is implicit in the Tribunal’s reasons that it did not accept the reason advanced by the applicant as to why this claim had not been raised at an earlier time. As stated above, the explanation given by the applicant as to why this did not occur is not part of his claim and there is no requirement on the Tribunal to specifically deal with the explanation in its reasons. The Tribunal sets out a number of matters where the applicant did not raise claims before the delegate or even in the pre-hearing submission. The claim of sexual assault was merely one of many such new claims. The Tribunal had a sufficient basis to make the finding that the applicant was prepared to fabricate evidence. Its consideration on this issue appears mainly at [46][24]. The Tribunal noted that the applicant had the opportunity to raise these many new claims in his application as well as in the interview before the delegate. It should be noted in this regard that the applicant’s explanation as to why he did not raise the sexual assault allegation earlier does not explain why it was not set out in the original protection visa application. Nor does it explain why it was not contained in the pre-hearing submission, noting that this submission referred to the applicant being forced to remove his clothes but said nothing about a sexual assault.

    [24] CB 223

18. When considering the applicant’s evidence, the Tribunal noted that there were significant new claims raised in the pre-hearing submission and at the hearing. After considering all the evidence, and the manner in which the claims developed over time, the Tribunal concluded that it did not accept “any of the new claims as true”. This finding encompasses any claim regarding the sexual assault. Furthermore, the Tribunal specifically rejected the applicant’s claims that he had been arrested and detained by the Sri Lankan authorities at any time[25]. It did so both on the basis that the applicant’s story had developed over time on significant aspects of his claims, as well as the evidence of his travels to and from Sri Lanka which indicated that he was of no interest to the authorities. This finding therefore also disposes of the claim to have been sexually assaulted as it follows as a matter of logic that, as the Tribunal found that the applicant was not detained in 2006, then the Tribunal also rejected his claim of being sexually assaulted during that detention.

    [25] see CB 224 at [47]

Ground 2 – did the Tribunal deny the applicant procedural fairness?

1. During the hearing, the following exchange occurred[26]:

   [26] see Transcript (T) 16-17

   AGENT: Do you want a copy of that arrest slip, translation?

   MEMBER: All I’m really interested is point 5 says reason for arrest.

   AGENT: I’ve just sent them an email to ask them if it is there. There is no response. I’ll follow that up. Can I send an email?

   MEMBER: An email is perfect. Just to the counter that will come through to me.

   AGENT: Ok thanks.

   MEMBER:  Thank you everyone today. What happened from today I’ll just await that brief advice from your advisor if she is able to obtain what that arrest slip actually says. Following that I’ll make a decision and you’ll probably get a decision with reasons within a month.

   AGENT: Sorry, Member do you want a certified copy of it or are you happy just for me to get an oral translation?

   MEMBER: I’m happy with an oral translation, that’s fine.

1. The exchange referred to an earlier exchange during the hearing regarding the documents[27]:

   [27] Transcript (T) 10

   MEMBER: You produced a document that says it’s an arrest slip. Can you, is it written in Tamil or Sinhalese?

   A: In Sinhalese.

   MEMBER: Can you read it?

   A: No.

   MEMBER: Can you interpreter?

   A: No.

   MEMBER: Does anyone, Miss Galetti, do you know where it says reasons for arrest, has anyone bothered to find out what it says?

   AGENT: I don’t know.

   A: Do you know why they arrested you?

   M: Suspicious of being a Tamil.

   A: What were you doing that was suspicious that resulted in you being arrested?

2. The arrest warrant was later forwarded to the Tribunal by the applicant’s advisors[28].

   [28] CB 207-208

3. The applicant submits:

   a)that the document was before the Tribunal before the hearing;

   b)that the document was in Sinhalese – a language not spoken by the applicant and in circumstances such as to make concoction or fraud unlikely;

   c)that the document had not been translated at the time of the hearing;

   d)that the Tribunal did not put the applicant on notice of any challenge to the provenance of the document, denying him the opportunity to lead further evidence to verify it;

   e)that the only issue raised regarding the document by the Tribunal was in regard to the reasons for arrest;

   f)that the translated document was consistent (in regard to the reasons for arrest) with that provided by the applicant during the hearing.

4. The applicant relies on the following propositions:

   a)it is settled law that jurisdictional error is simply established if the process by which the decision maker assessed the claims failed to have regard to the actual nature of the legal inquiry he or she was required to undertake[29];

   [29] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82]

   b)a person whose interests may be adversely affected must receive a fair hearing by the use of an appropriate procedure in the circumstances:[30].  There the High Court said:

   [30] SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 at 160 [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ

   [W]hat is required by procedural fairness is a fair hearing, not a fair outcome’.  As Brennan J said, in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35-36]:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

   It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.

   c)the Courts have declined to be prescriptive as to the procedures a decision-maker must employ in order to provide procedural fairness in any particular case. This is because what will be both sufficient and necessary to ensure a fair hearing will depend on, and vary with, the context in which the decision-maker acts, including any statutory or regulatory requirements or considerations[31];

   d)it is also settled law that an administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision[32].  If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information.  The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it.  However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source[33];

   e)finally, in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[34],the Full Federal Court said:

   It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be  informed of the nature and content of adverse material.  

   [31] 228 CLR at 160-161 [26], [29]: see too Saeed v Minister for Immigration (2010) 241 CLR 252; [2010] HCA 23 at 261 [19]- [20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ

   [32] Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88; [2005] HCA 72 at 96 [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ

   [33] 225 CLR at 95-96 [15], 100 [29]

   [34] (1994) 49 FCR 576

5. In the present matter, the applicant submits that he has not been heard in the process embarked upon by the Tribunal of its own motion.

   a)the provenance of the Receipt of Arrest document was not raised during the hearing;

   b)it would appear that the only issue raised was regarding the translation – and that the applicant complied with the request made by the Tribunal.

6. In dealing with the document, however, the Tribunal held[35]:

   I do not accept the Receipt of Arrest as true and find it has been fabricated so as to substantiate his claims.

   [35] CB 224 [49]

7. Whilst the applicant accepts that the mandatory provisions of the Migration Act dealing with procedural fairness were not enlivened in the present matter, there is authority for the proposition that certain actions by the Tribunal can amount to express undertakings that a procedure would be followed, and that the applicant can be denied procedural fairness when these undertakings are not complied with[36].

   [36] Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1 at 50 per Kirby J

8. The applicant further submits that the inquiry regarding the document during the hearing created an expectation on the part of the applicant that should have been taken into account[37].

   [37] see Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1 at 50 per Kirby J

9. On the present state of the authorities, I cannot accept this ground of review as having been established. First, I accept the Minister’s submission that the Migration Act currently leaves no room for the operation of the general law of procedural fairness, at least in relation to the conduct of hearings by the Tribunal.

10. Section 422B(1) of the Migration Act provides that Division 4 of Part 7 of the Migration Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. It is not clear from the applicant’s submissions in what respect it is alleged that the Tribunal has failed to comply with any of the provisions of that division. The applicant’s submissions do not refer or deal with the provisions of s.422B at all. Rather, the submissions are drafted as if procedural fairness is at large in relation to the procedures of the Tribunal[38]. This is not correct[39].

    [38] Although it is noted that the concession at [36] of the applicant’s submissions may be intended to be an acknowledgement of the effect of s.422B(1)

    [39] See Minister for Immigration v SZMOK (2009) 110 ALD 15 at [10]

11. In the present case, the applicant was on notice during the hearing that his credibility was in issue. The Tribunal had directed attention to a number of matters where the applicant had only raised certain claims after his protection visa application had been refused and the Tribunal stated during the hearing that this raised issues of his credibility. The Tribunal, after considering all of the evidence, found that the applicant was not a credible witness and rejected all of his claims including that he had been detained in 2007[40].  Having made a finding that the applicant was not detained in 2007, it was therefore a logical consequence that the arrest receipt provided by the applicant was found not to be a genuine document. It should further be noted that the applicant gave evidence by way of a statutory declaration that this arrest had occurred in August 2007, when the arrest receipt stated that the date of arrest was 24 June 2007, so the receipt was not actually supportive of the applicant’s evidence in one respect. The Tribunal noted the submission by the applicant’s representative explaining that discrepancy at [44][41]. 

    [40] see CB 224 at [48]-[49]

    [41] CB 220

12. I accept the Minister’s submission that it was not incumbent upon the Tribunal to reconvene for a further hearing to enable the Tribunal to put its concerns about the genuineness of the document. Certainly, there is no provision in the Migration Act which required that procedure to be followed. There is no requirement, whether under the Migration Act or under general law principles of procedural fairness, for a Tribunal to indicate that an adverse decision may be made prior to making such a finding[42].

    [42] Commissioner for ACT Revenue v Alphaone P/L (1994) 49 FCR 576 at 591

13. The applicant apparently contends that the Tribunal commenced a new procedure which it then did not complete by asking for a translation of the document which was already contained (in untranslated form) on the Departmental file. I accept that there is nothing in the exchange between the Tribunal member and the applicant’s representative which created an “undertaking that a procedure would be followed”[43]. All the Tribunal did was ask for an English translation of a document in its possession and advise that it was interested in knowing what was said as being the reason for arrest. There is nothing in the transcript which supports a submission that the applicant had a legitimate expectation that the contents of the document would be accepted by the Tribunal.

    [43] applicant’s submissions at [36]

14. As noted by McHugh and Gummow JJ in Re Minister for Immigration; ex parte Applicant S20/2002[44] at [49]:

    In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.

    [44] (2003) 198 ALR 59

15. I accept that the findings of the Tribunal regarding the document were open to it, having reached its conclusion regarding the credibility of the applicant.

16. The Full Federal Court in SZMOK sets out a useful summary of the various principles and authorities in determining whether a finding that a document is not genuine is open to a Tribunal from [59]-[68]. As was the case in SZMOK, it is clear that the Tribunal considered the applicant not to be a credible witness. There was no suggestion by the Tribunal that upon receipt of the translation of the arrest receipt that this was likely to retrieve the applicant’s position at the end of the hearing. There was no representation that a further hearing would take place before making any adverse findings.

Ground 3 – was the Tribunal’s decision unreasonable?

1. The applicant contends that unreasonableness is established from the following facts.

2. For convenience, I repeat the exchange which occurred during the hearing and as recorded at page 7 of the transcript:

   MEMBER:     Now there’s another new claim that hasn’t been made before, and that is you now claim in Colombo in 2007 when you were detained for 2 days, that you  were naked and the authorities took photos on their mobile phone and they laughed at you.

   APPLICANT: That happened in Jaffna camp.

   MEMBER: Well that’s not what the submission from your advisor says.

   APPLICANT: Since 2006 I was taken to the army camp many times and that’s the time that tied me naked and had ants underneath me, they sexually assaulted me in many ways.

   MEMBER: Well you’ve never mentioned that before.

   APPLICANT: The interviews I had with ladies, women they are. I was shy to mention about the sexual side of things.

   MEMBER: That could be an excuse and it could be that it just never happened and you are just making it up.

   APPLICANT: I come from a very small village and I’m not used to talking these things in public. It was a very uncomfortable feeling for me to share these things in public.

3. The exchange went on as recorded at page 8 of the transcript:

   MEMBER: And when do you say you were sexually assaulted and how did it happen?

   APPLICANT: In 2006.

   MEMBER: And what happened?

   APPLICANT: They took my clothes off and there were lots of ants on the floor, they ask me to lie down and they took photos of me and was all the jokes they made, they laughed and took photos.

   MEMBER: Anything else?

   APPLICANT: They beat me up with a rod in the sexually in the anus, they harmed me in that way, and then they torture.

   MEMBER: If that happened and I’ve asked you already, but if that happened why wouldn’t you say that before?

   APPLICANT: I was really shy to talk in front of ladies, now I am in a situation where I have no other optional choice, so I’m saying everything today.

4. The applicant notes that the exchange in turn referred to a reported incident made in an earlier iteration of his claims.  As stated in the 11 June 2013 submissions made by the applicant’s advisors[45]:

   In 2007, [the Applicant] went to Colombo. The authorities suspected that he was a member of the LTTE and arrested him. The authorities suspected that he was a member of the LTTE and arrested him. The authorities tormented our client by tying him up whilst he was naked, taking photographs of him on their mobile phones and laughing at him. Understandably, [the Applicant] felt uncomfortable about mentioning these details in front of the women present at the DIAC interview.

   [45] CB 130-131

5. The applicant submits that, in the circumstances, the Tribunal has failed to deal with an aspect of the applicant’s claim in accordance with the Guidelines for Vulnerable Persons – and in so doing has made a finding so unreasonable that no reasonable person would have made it.

6. The applicant submits:

   a)the matters described are intimate and sensitive in nature;

   b)a possible explanation for raising the matters at earlier iterations arises in circumstances where the delegate and the advisor were female; and

   c)the Tribunal had no regard to the Tribunal’s own guidelines regarding vulnerable persons.

7. The present matter is said to be similar to a recent authority of this Court in SZSNW v Minister for Immigration & Anor[46].  That decision was affirmed on appeal following the completion of the trial and post hearing submissions.  I did not consider it necessary to invite further submissions following the decision of the Full Federal Court as this case turns on its own facts, and does not contain the legal complexity of a non statutory process considered by the Full Federal Court.

   [46] op cit

8. The applicant further relies on the decision of Logan J in SZRHL v Minister for Immigration[47] for the proposition that considering evidence in an unreasonable manner can amount to jurisdictional error.

   [47] [2013] FCA 1093

9. The applicant submits that, during the hearing and having made the claim to have been sexually assaulted, the applicant submits that the Guidelines on Vulnerable Persons were enlivened. These guidelines mandate care when dealing with matters as sensitive as those described in the present matter.

10. The applicant contends that it is clear from the transcript that the following measures were simply not put into place – and could have been afforded to the applicant under the Guidelines:

    a)the member did not ensure any arrangements regarding provision of a support person;

    b)the member did not request medical evidence to assess the competency of the applicant;

    c)the member took no steps to avoid the unnecessary disclosure during the hearing of issues of a private nature during the hearing;

    d)the member took no steps to inquire as to whether the applicant could utilise video conferencing;

    e)the member took no steps to inform the applicant the hearing could be conducted in private;

    f)the member took no steps to alter his course of questioning – including questioning the applicant in a sensitive and respectful manner;

    g)the member took no steps to encourage the applicant to seek appropriate counselling after the hearing.

11. The applicant submits that there is no explanation as to why these measures were not utilised during the hearing.

12. Guidance on how to interpret Minister for Immigration v Li[48] and the concept of legal unreasonableness was provided by the Full Federal Court in Minister for Immigration v Singh[49] where their Honours Allsop CJ, Robertson and Mortimer JJ stated at [44]-[48]:

    [48] (2013) 297 ALR 225; [2013] HCA 18

    [49] [2014] FCAFC 1

    … However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li [2013] HCA 18; 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”.See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [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”: Giris Pty Ltd v FCT [1969] HCA 5; 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the unreasonableness 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”: Dunsmuir v New Brunswick 1 SCR 190 at 220–221 [47].

    In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.

    There is then the question whether in assessing a contention of legal reasonableness, the court on review is confined to the reasons given by the decision-maker, where there are reasons. Certainly in Li the approach taken by the High Court was to examine the reasons, and justification, given by the Tribunal. In the present appeal, some of the justifications put forward by the Minister for the Tribunal’s refusal of the adjournment were not matters mentioned by the Tribunal in its reasons, such as the submission that the first respondent could have sat the IELTS tests up to two years before his visa application, the use by the first respondent of the word “hope” in his letter asking for an adjournment, the absence of reasons advanced by the first respondent as to why the first mark for his 1 December 2012 test was incorrect, the inferences that might be drawn from the first respondent’s failure to obtain the requisite marks in several previous tests and the absence of factors outside the first respondent’s control (by comparison with the facts in Li). None of these matters was relied on by the Tribunal in its reasons. 

    
    

    This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King [1936] HCA 40; (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

    The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.

1. The applicant draws an analogy between the issues in this case and the case of SZRHL. In that case the Tribunal found that the factual basis upon which the applicant advanced his protection visa was not credible. The fact that the applicant in that case had failed to mention a false case in his protection visa application was counted against his credit by the Tribunal. Logan J considered whether this was a peripheral issue for the Tribunal when considering the applicant’s claims, or if it was a central issue determining the case. His Honour stated at [34]:

   … “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”.  That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.

2. The applicant submits that similarly, and, as was the case in SZSNW, in this case the issue of the applicant’s failure to raise issues relating to him being sexually assaulted at the earlier iterations of his claim can be seen as a central issue determinative of the case. However, it was based on an assumption that the applicant had been afforded meaningful opportunities to advance this claim.

3. The applicant submits that a fair reading of the transcript demonstrates that the credibility findings made against the applicant were made without regard for the procedural protections afforded to vulnerable persons anticipated by the Guidelines on Vulnerable Persons. 

4. The applicant accepts that credibility is usually an issue par excellence for the decision maker.  However, in certain cases, assessment of credibility can amount to jurisdictional error[50], there is a non-linear nature to the way credibility is assessed, and therefore such errors can result in the applicant being “deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to credibility”.

   [50] see Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 88-89. As explained in VAAD v Minister for Immigration [2005] FCAFC 117 at [79]

5. As stated by Logan J in SZRHL at [36]:

   …it was procedurally unfair to the first appellant for the Tribunal, when questioning him in the course of the hearing, to have put to him that he had failed to mention a “false case” in the statement in the statutory declaration which accompanied the protection visa application but to have failed to mention to him that he had mentioned that matter in the application itself. The answers which the first appellant came to make at the hearing to questions proceeding from this false premise in turn formed part of the reasoning that led to a conclusion that the first appellant was not credible.

6. In the present matter, the applicant submits:

   a)the Tribunal failed to reasonably consider the claim that the applicant had been sexually assaulted;

   b)the Tribunal decided the applicant was not a witness of credit due to his failure to raise the matter before the hearing;

   c)the Tribunal then proceeded to damn his credibility in line with illogical suppositions – drawn from a hearing which was inappropriate given his status as a vulnerable person.

7. The difficulties inherent in this field of jurisdictional error were addressed by the High Court in Minister for Immigration v SZMDS[51]. At [124] their Honours said:

   More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as “Wednesbury unreasonableness” It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as “illogical or unreasonable, or irrational” may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as “irrational” might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction. 

   [51] [2010] HCA 16; (2010) 240 CLR 611, in particular at [113]–[131] per Crennan and Bell JJ

8. I accept that the present case has some factual similarities to my decision in SZSNW, but there are also some important distinguishing facts.

9. The cases that the applicant relies upon, being SZSNW and SZRHL both involved decisions where the credibility finding was dependent upon either the Independent Merits Reviewer or the Tribunal misapprehending the nature of the applicants’ evidence such that incorrect findings were made as to when a claim had initially been raised. Nothing of the kind is asserted here.

10. In SZSNW, I further found that the Reviewer and the RSA officer had been asked to take into account similar guidelines which provided assistance to Reviewers at that time and that he did not act reasonably when considering the applicant’s claim of sexual torture.  I found that if the Reviewer had taken into account the guidelines which drew attention to the fact that victims of torture and or trauma may find it difficult to discuss these issues, he would have had to consider that perhaps the applicant was reluctant to mention his experience of sexual torture due to feelings of shame or embarrassment.

11. At [55] of the judgment I identified three factors as to why legal unreasonableness (or irrationality) had been established. The first was that the adverse credibility finding was based on a false factual premise. The second was that no regard had been paid to the reluctance on the part of the applicant to discuss the details of the torture at the RSA interview. The third was that that the Reviewer failed to inform himself of the correct approach in dealing with claims of sexual torture, rather he relied on the fact that a box had been ticked confirming that the applicant had revealed everything material to his claims at the time of the entry interview.  On appeal, the focus of the Full Federal Court was on the first of those factors.

12. In the present case, there was no adverse credibility finding based on a false factual premise. The explanation given by the applicant as to why his claim had developed did not satisfy the Tribunal in circumstances where the claim of sexual assault had only been made for the first time at the Tribunal hearing, noting that a detailed submission had been provided by his migration agent before the hearing which did not mention the sexual assault. Furthermore, it was not the only claim which had developed or been raised late, further undermining his overall credibility.  Thirdly, I accept that there is no single “correct approach” when a claim of sexual torture has been made in a hearing. Each case must be dependent upon the circumstances of that case.  The guidelines provide assistance to members as to how witnesses identified as vulnerable may be dealt with.  The Tribunal in the present case did not see that this case warranted the engagement of those processes.  In the present case, no jurisdictional error is demonstrated by the member adopting that course.  

13. The reasons for the decision make clear that the Tribunal was concerned about the way in which the applicant’s claims developed over time and its concern was not limited only to the progression of the claim as it related to the alleged sexual assault. At [46] of the Tribunal decision, the Tribunal states:

    As is apparent from the application, interview with the delegate and hearing before the Tribunal, the applicant’s story has been added to as the application has progressed. Some of the variations are relatively minor; however others are major and impact significantly on his overall credibility. The most significant is his adding new claims in the agent’s pre-hearing submission and at hearing.

14. The conclusion reached in relation to this issue was:

    I do not consider any of the new claims as true. I consider he has made those claims so as to enhance his claims following from the negative decision of the delegate.

15. Importantly, while this finding encompassed the new claim that the applicant had been sexually assaulted, it was not limited to claims of that nature. The other additional claims raised were that he was asked to attend the army camp on more occasions than previously claimed, that there were problems involving his sister being in love with an army person, that “grease men” had come into the family house and attacked his sister, that he had been involved with an LTTE person and helped him by organising programs and putting up flags and working as a carpenter for the LTTE and a video had been taken of him saying he supported the LTTE.

16. In those circumstances it was open to the Tribunal to consider, as it did, that the applicant was not a credible witness.

17. Dealing directly with the sexual assault claim, it was noted that no claim was made at all during the airport interview that anything had happened directly to him[52].  Then the applicant provided a statutory declaration approximately three weeks later. In that statutory declaration, the applicant claimed that he had been detained in 2006 by the army for questioning and that his hands were tied together and he was made to walk through ants that would bite him[53].

    [52] see [26] of the Tribunal’s reasons

    [53] see CB 40

18. Before the delegate, the applicant claimed that he had been taken to an army camp and questioned and made to stand on an ant nest and he was bitten[54].

    [54] CB 216

19. The pre-hearing submission, signed by the migration agent acting for the applicant, Michael McCrudden[55], stated that the applicant instructed that the detention in issue occurred in Colombo in 2007 and that “the authorities tormented our client by tying him up whilst he was naked, taking photographs of him on their mobile phones and laughing at him. Understandably (the applicant) felt uncomfortable about mentioning these details in front of the women present at the DIAC interview”[56]. No explanation was given, however, why this account is different from the account set out in the statutory declaration which was also prepared while the applicant was represented by a migration agent.

    [55] There is an assertion in the applicant’s supplementary submissions that the advisor was female. It may be that Mr McCrudden was assisted by a female but I have no evidence of that.  Also, no claim was made by the applicant that he was constrained in telling his advisor of these issues. The evidence in the transcript was that “The interviews I had with ladies” caused his shyness which would appear to refer to the interview with the officer at the airport and the delegate.

    [56] see CB 130-131

20. When the applicant appeared before the Tribunal, he claimed, for the first time, that he had also been sexually assaulted during this period of detention. He claimed that the reason for this was that[57]:

    I was really shy to talk in front of ladies, now I’m in a situation where I have no other optional choice, so I’m saying everything today.

    [57] T 8

21. First, it should be noted that this explanation does not explain why the other aspects of his claims, which were not of an alleged sexual nature, were also raised late.  Secondly, it does not provide any explanation as to why the allegation of sexual assault was not contained in the pre-hearing submission, nor does it provide an explanation as to why no reference to this incident at all (even absent the sexual aspects of the event) was made when the applicant was first interviewed at the airport.

22. In those circumstances, it was open for the Tribunal to make adverse credibility findings in relation to this claim.

23. Contrary to the applicant’s submission the issue of the applicant raising the allegation of sexual assault late was not a “central issue determinative of the case.” Rather it was one of a number of instances where his claims had developed over time, leading the Tribunal to consider that he was not a credible witness.

24. Understood in this way, there was no obligation for the Tribunal to consider invoking any of the procedures suggested in the Guidelines on Vulnerable Persons. This was not a case where the only issue upon which an assessment of credibility rested was the developing nature of a claim of sexual assault. Considering the evidence as a whole, the Tribunal was concerned about numerous aspects of the applicant’s claims advanced at the hearing.

25. These concerns ultimately led to a finding that the applicant was not a credible witness. This is not a case where there was one aspect of the applicant’s evidence, concerning claims of sexual assault, which raised concerns in the Tribunal’s mind.  Neither was it a case where such considerations as to whether the applicant was a vulnerable person, and that this may be impacting upon his ability to properly engage with the hearing process, may have been engaged.

26. I conclude that this case can be distinguished on its facts from SZSNW and SZRHL and, while fairly arguable, the claim of unreasonableness has not been made out.

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  14 November 2014