SZTSK v Minister for Immigration

[2014] FCCA 2277

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2277

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Nepal – applicant not believed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.427, 499

Khawar v Minister for Immigration (1999) 59 ALD 668; (1999) 168 ALR 190; [1999] FCA 1529
M100 of 2004 & Anor v Minister for Immigration & Anor (2007) FMCA 829
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

MZZOG & Ors v Minister for Immigration & Anor [2014] FCCA 1901
SZMDU v Minister for Immigration & Anor (No 2) [2008] FMCA 1139

Applicant: SZTSK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3260 of 2013

Judgment of: Judge Driver

Hearing date: 3 October 2014

Delivered at: Sydney

Delivered on: 31 October 2014

REPRESENTATION

Solicitors for the Applicant:

Mr M Newman

Newman & Associates

Solicitors for the Respondents:

Ms M Stone

DLA Piper

ORDERS

1. The application as amended on 3 October 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3260 of 2013

SZTSK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 4 December 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Nepal and had made claims for protection based on past sexual assaults by a Maoist leader and a fear of further such harm on return. 

2. The following statement of background facts concerning the applicant’s protection claims and the decision of the Tribunal on them is derived from the Minister’s submissions filed on 24 September 2014. 

3. The applicant is a female citizen of Nepal.[1]  She applied for a protection visa on 22 November 2012.[2] 

   [1] Court Book (CB) 28.

   [2] CB 1.

4. The applicant claimed to have been an active member of the Maoist Communist Party, and to have been involved in their army.  The applicant claimed that the leader of her group, named Jwala, had raped her, and that she reported this.  Thereafter Jwala threatened to kill the applicant on a number of occasions for a period of eight or nine years.[3]  The applicant confirmed at the Departmental interview that she feared harm only from Jwala, and had no problems with the Nepalese authorities.[4]

   [3] See the applicant's written statement at CB 36-39.

   [4] See the delegate's summary of the Departmental interview at CB 54.

5. The delegate refused the application on 23 July 2013.[5]  The delegate made no findings as to whether the claimed incidents with Jwala had occurred.  The delegate considered that even if the applicant's claims were accepted, her evidence was that the incidents had occurred nine years earlier and the applicant had not had any physical contact with Jwala for about eight years.  The delegate found that the applicant's fears were personal and had no Convention nexus, that the applicant would be able to avail herself of police protection, and that the applicant could relocate to Kathmandu.  In relation to complementary protection, the delegate found only that the applicant did not face a real risk of significant harm.

   [5] CB 48-58.

6. The applicant applied to the Tribunal for review of the delegate's decision on 31 July 2013.[6]  She appeared at a hearing before the Tribunal on 27 November 2013,[7] at which time she provided three news articles to the Tribunal.[8]  At the hearing, the applicant also raised a new claim to fear harm from the Maoists because she left without permission and to fear harm from those opposed to the Maoists due to her involvement with the Maoists.[9]

   [6] CB 59-81.

   [7] CB 100-102.

   [8] CB 106-109.

   [9] See the Tribunal’s summary of the hearing at CB 119 [30] and CB 120 [31].

7. The Tribunal made its decision on 4 December 2013, affirming the decision not to grant the applicant a protection visa.[10] 

   [10] CB 113-123.

The decision of the Tribunal

1. The Tribunal accepted the applicant's claims regarding her involvement with the Maoists but did not accept that she had been raped and threatened by Jwala as claimed.  This was on the basis of identified internal inconsistencies in the applicant's evidence, and the Tribunal's impression that the applicant was evasive in her evidence about this claim.  One of the inconsistencies relied upon was that the applicant had told the delegate that she was raped by Jwala on two occasions but told the Tribunal that she was raped by Jwala many times over the course of two years.[11]

   [11] CB 117-118 [25].

2. The Tribunal did not accept that the applicant feared harm from the Maoists, as it expected that if this were true the applicant would have raised it in her written statement.  Additionally, at the start of the Tribunal hearing the applicant had indicated that she feared harm only from Jwala and his friends.  The Tribunal did not accept the applicant's explanation that this was because Jwala and his friends were a part of the Maoist government.[12]

   [12] CB 119-120 [30].

3. The Tribunal did not accept that the applicant feared harm from those opposed to the Maoists, because when asked at the start of the hearing the applicant had said that she feared harm only from Jwala and his friends.[13]

   [13] CB 120 [31].

4. On the basis of the above concerns, the Tribunal found that the applicant was not a credible, truthful or reliable witness.[14] The Tribunal rejected the applicant's claims to fear harm in Nepal.[15]

   [14] CB 120 [32].

   [15] CB 120-121 [33]-[36].

The judicial review application

1. These proceedings began with a show cause application filed on 27 December 2013.  The applicant now relies upon an amended application filed in court by leave on 3 October 2014.  There is one ground in that application:

   The Tribunal erred in law when it found inconsistencies in the applicant’s reporting of physical and sexual abuse led, necessarily, to a finding of lack of credibility and dishonesty on her part in circumstances where the modus operandi for the taking of such evidence was flawed as it made no allowance for the impact of emotional trauma upon the applicant and did not follow recommended procedures

2. I have before me as evidence the court book filed on 18 February 2014. 

3. The applicant and the Minister both made written and oral submissions.

Consideration

1. The applicant challenges the adverse credibility findings made by the Tribunal.  In particular, the applicant challenges the Tribunal’s conclusions based upon inconsistencies in the applicant’s claims and evidence, specifically relating to the number of times she had been sexually assaulted by the Maoist leader, as well as some other matters.  The applicant complains that the Tribunal should have applied guidelines on gender issues for decision makers.  The solicitor for the applicant also suggested in oral submissions that the Tribunal should have referred the applicant for a medical assessment.  However, as is pointed out in the submissions of the Minister, the guidelines relied upon by the applicant have been superseded by more recent guidelines.  The current Tribunal guidelines are publicly available on the Tribunal’s website and are dated March 2012. 

2. I accept the Minister’s submission that the Tribunal cannot have been bound by the 1996 guidelines relied upon by the applicant as they were not current at the time of the Tribunal decision. I accept further and more generally that the Tribunal is not bound by the current guidelines either because they are not a binding direction of the type contemplated by s.499 of the Migration Act 1958 (Cth) (Migration Act).

3. The Minister advances the proposition that the guidelines document did not constitute a relevant consideration in the sense understood in cases such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd[16] as is said to be evident from the decision in M100 of 2004 & Anor v Minister for Immigration & Anor.[17]

   [16] (1986) 162 CLR 24.

   [17] (2007) FMCA 829. Followed in SZMDU v Minister for Immigration & Anor (No 2) [2008] FMCA 1139 at [41]-[43] and MZZOG & Ors v Minister for Immigration & Anor [2014] FCCA 1901 at [64].

4. In M100, Judge Riley[18] rejected the submission that a document entitled “Guidance on the Assessment of Credibility” (which, like the Gender Guidelines was an internal guidance document published by the Tribunal for its own use) was binding on the Tribunal. As her Honour stated:[19]

   [18] at [90].

   [19] at [96] and [103].

   The credibility guidelines were published by the Tribunal itself. However, that does not mean that the credibility guidelines bind a particular Tribunal member in making a decision about a particular case. The credibility guidelines begin with the words, “This paper sets out general guidance concerning the assessment of credibility by” the Tribunal. It contains statements of general principle rather than directions on the particular decision that should be made in a case having particular feature.

   …

   To the extent that the Gender Guidelines or the Credibility Guidelines require the Tribunal to afford procedural fairness, or consider the evidence as a whole or refrain from acting on a gut feeling, they simply require compliance with the existing law. A failure by the Tribunal in any of those respects would result in jurisdictional error, not because the guidelines were ignored but because the existing law was not applied. In my view the Gender and Credibility Guidelines are not relevant considerations and any failure by the Tribunal to have regard to them would not constitute jurisdictional error.

5. The basis of the applicant's allegation that the guidelines are binding upon the Tribunal is apparently Khawar v Minister for Immigration.[20]  The Court in that decision made no finding that the Gender Guidelines were binding upon the Tribunal.  This Court in M100[21] found that the Gender Guidelines were not binding upon the Tribunal.  I am not persuaded that that decision is clearly wrong and I follow it.

   [20] (1999) 59 ALD 668; (1999) 168 ALR 190; [1999] FCA 1529.

   [21] Followed in SZMDU v Minister for Immigration & Anor (No 2) [2008] FMCA 1139 at [41]-[43] and MZZOG & Ors v Minister for Immigration & Anor [2014] FCCA 1901 at [64].

6. As to the suggestion by the solicitor for the applicant that the Tribunal should have referred the applicant for a medical assessment, the simple answer is that there was nothing before the Tribunal that indicated that such a medical assessment was called for. Secondly, while the Tribunal has a discretion under s.427(1)(d) of the Migration Act to refer an applicant for a medical examination, it is under no obligation to do so.

7. The adverse credibility conclusions that were reached by the Tribunal were open to it on the material before it.  There were marked discrepancies between the claims originally made by the applicant in her protection visa application, her interview before the delegate and at the hearing conducted by the Tribunal.  The Tribunal recognised at [25] of its reasons[22] that if the applicant had been raped she would be very distressed about the incidents and that might be a reason why she did not mention being raped in her original statement.  The Tribunal went on, however, to observe that the applicant had told the Minister’s Department about the alleged rapes and of this occurring over eight years before the Tribunal decision.  The Tribunal was entitled to expect that the applicant would be able to give consistent basic details of the alleged rapes. 

   [22] CB 118.

Conclusion

1. I find that the decision of the Tribunal is free from 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 twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  31 October 2014