SZTSK v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal against an order of the Federal Circuit Court of Australia of 31 October 2014 dismissing the appellant's amended application for review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision not to grant the appellant a protection visa (SZTSK v Minister for Immigration [2014] FCCA 2277). 2 The appellant is a citizen of Nepal. In a statement accompanying her protection visa application the appellant said: The leader of our group … who went by the name of [J] always carried a gun and a Khukri. He was 24 years old. He often used many threats to frighten us, the women. Compelled by circumstances we never said a word. It was against the Maoist's rule for the male and the female to form a physical relationship. Yet from time to time he would tease and touch us and his behaviour made me very concerned. On a very cold night of 3 February 2004 all of a sudden he came and lay next to me and I immediately informed … about his action and this erupted into an argument between the two. Next morning he made threats to kill me. I took this threat quite lightly. And we continued to rob the villagers and entice the village youths to join the Maoists. 3 The appellant said that, subsequently, [J] continued to make threats against her which caused her to flee in fear for her life. 4 In an interview with the Department: The applicant claimed that she had been repeatedly threatened with harm on the phone by [J] for the past eight or nine years. The applicant also stated at her interview that she had previously been raped twice by [J], when she was active in the Maoist Army. When the applicant was asked why she had not raised these incidents in her statement of claims, she responded that she was uncomfortable to speak about these incidents to her representative. 5 The Tribunal records the following: It is the applicant's claim that [J] lay with her and raped her when she was with the Maoists between 2003 and 2005 and that as a result he wants to harm her. She said he stopped raping her approximately 8 or 9 years before the hearing and has not seen him since. She claimed at the hearing before me that when she was with the Maoists she was expected to sleep with everybody turn by turn and whenever she met [J] he would rape her. However as I raised with her at the hearing before me she has provided inconsistent evidence between the Department and Tribunal as to these rapes and that this may lead me to find she is not credible. In particular I noted that in her statement attached to her protection visa application she did not mention being raped by [J], then at the Department interview indicated that she was raped twice by [J], and before me said she was raped by [J] many many times. When my concerns were raised, in response she indicated that she did not indicate she was raped many times previously because she did not want it to become public, and was scared her words would get out and spread. She said that is why she only said at the Department interview she was raped twice. I accept that if the applicant was raped she would be very distressed about these incidents and that this may be a reason why she did not mention being raped in her statement. However having opened up to the Department that she was raped and this being over 8 years ago, I expect that she would provide consistent evidence as to the number of times she was raped, if it were true. While I am conscious that she may not exactly know how many times she was raped I am of the view that being raped twice and many many times in an approximately two year period is a significant inconsistency and that a person in this situation would be able to provide more consistent evidence if it were true. This leads me to find that the applicant is not credible as to being raped by [J]. This adds to my finding that the applicant is not a credible witness as to these incidents. 6 Because the Tribunal found that the appellant was not a credible witness for these and other reasons, it rejected claims of her having a well-founded fear of persecution if she were to return to Nepal and affirmed the decision of the delegate of the Minister not to grant her a protection visa. 7 In her application to the Federal Circuit Court the appellant argued that the Tribunal was bound to consider certain guidelines published by the Tribunal (Guidelines on Gender Issues for Decision Makers 1996) and had failed to do so and should have referred the appellant for a medical assessment. The primary judge held that the guidelines were not a mandatory relevant consideration and that there was nothing before the Tribunal indicating that a medical assessment was called for so that, while the Tribunal had a discretion to obtain such an assessment (under s 427(1)(d) of the Migration Act 1958 (Cth) (the Act)), it was not bound to do so. 8 In her notice to appeal to this Court the appellant raised one ground as follows: The appellant, a young female, claimed she had been raped and abused by a Maoist band of irregulars in Nepal during the troubles there and continuing to fear [J], their leader, sought asylum from persecution. Her evidence was somewhat inconsistent and disbelieved at the Tribunal and her review application was unsuccessful because she was found to lack credibility. In the court below the applicant complained that protocols or guidelines for dealing with such applicants were not followed, specifically the need for medical evidence as to capacity to give evidence and His Honour erred when he found such guidelines were no longer applicable. 9 In oral submissions, the appellant's legal representative effectively abandoned this ground and recast the asserted legal error by the Tribunal in these terms: The Tribunal in its reasons omitted to state that it had at least considered the possibility that the appellant's evidence had been negatively affected by the trauma she claimed to have suffered when it was bound by law to give clear reasons for its decision. 10 The appellant's legal representative also annexed to written submissions another, more recent, document published by the Tribunal, Guidance on Vulnerable Persons, and submitted that the Tribunal should have referred to these guidelines in its reasons but failed to do so. It was also submitted for the appellant that it appeared that the Tribunal was unaware of its own guidelines which is why it omitted to mention them despite the circumstances of this case "crying out" for consideration of the kind of matters contained in the guidelines, particularly the possibility of impairment of the appellant's memory by reason of the trauma she had suffered. Further, it was unreasonable to expect the appellant herself, the traumatised person, to identify her trauma as the possible explanation for the inconsistencies in her evidence. According to the appellant, as stated in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf), the Tribunal's basic duty is to give clear reasons for its decision, which it failed to do in this case. 11 These arguments fail for a number of reasons. 12 Leaving aside the difficulty that no guidelines at all were put in evidence for the appellant before the primary judge (the different guidelines relied on in each court merely being annexed to the written submissions for the appellant) and that leave is required to raise the new ground of appeal (that also not having been put to the primary judge), the appellant's arguments do not find any support in the law or on the facts. 13 Yusuf concerned s 430 of the Act which provides that: (1) Where the Tribunal makes its decision on a review, the Tribunal must make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based; and (e) unless the decision is given orally - records the day and time the statement is made; and (f) if the decision is given orally - records the day and time the decision is given orally. 14 At [68] in Yusuf McHugh, Gummow and Hayne JJ said s 430(1)(c): requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made… A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. 15 At [69], their Honours continued: It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. 16 On the reasoning in Yusuf, the proper analysis is that it may be inferred that the Tribunal did not consider any of its guidelines to be a material fact. Whether or not that discloses error, however, is a separate question. As the respondent submitted, the new ground of appeal cannot rise higher than the contention that the guidelines (presumably, now said to be the Guidance on Vulnerable Persons) were a mandatory relevant consideration, that is a matter the Tribunal had to consider. If the Tribunal was not bound to consider the guidelines, then the fact that they are not mentioned in its reasons cannot constitute legal error. 17 I am not persuaded that the Tribunal had to consider the guidelines. The mere fact that the Tribunal published the guidelines does not mean that the possibility of the guidelines being relevant to an applicant for review must be considered in each and every case. In the present case, there was no suggestion by the appellant that either of the guidelines should be considered or, indeed, that she was a person to whom either of the guidelines applied. For example, insofar as reliance is now place solely on the Guidance on Vulnerable Persons document, it may be noted that a vulnerable person is said in para 5 of the guidelines to be a person "whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed". Nothing in the evidence suggests any such lack of ability on the appellant's part. In other words, there was nothing in the circumstances to suggest any possible engagement of those guidelines. It cannot be that, in such a case, the Tribunal nevertheless was bound to consider those guidelines. The argument that it is unreasonable to expect a person who claims to be traumatised to invoke those guidelines or raise their own trauma as a reason for inconsistent evidence misses the point. For those guidelines to be possibly relevant, there must be something which indicates to the Tribunal that the person's ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed. Claiming to have suffered some form of trauma, without more, does not provide that indication. Even if the circumstances are such as to raise the possibility of those guidelines being relevant, it is one thing for the Tribunal to elect to consider the guidelines but another thing to conclude that it was bound to do so, such that a failure of consideration constitutes a vitiating legal error. 18 In the present case, moreover, the appellant explained the reason for the inconsistency in her evidence. Her explanation had nothing to do with a lack of ability to understand and present her case. Her explanation was only that she did not want the multiple rapes to become public. She did not suggest that the trauma of her alleged multiple rapes had caused her memory to become clouded or had prevented her from disclosing that she had been raped multiple times, rather than twice, as she had claimed in her Departmental interview. The Tribunal, despite not referring to any guidelines, expressly considered the potential effect of distress on her evidence, that is, as a potential explanation for the inconsistency. The Tribunal's conclusion that her explanation was not cogent, even allowing for the possibility of distress affecting her evidence, was reasonably open to it. 19 In these circumstances, it is impossible to conclude that the Tribunal was bound to consider any guidelines published by it and, by reason thereof, was also bound to mention the fact of its consideration in its reasons. The Tribunal, in this case, was not bound to consider the guidelines and was not bound to mention the guidelines in its reasons. 20 For these reasons, the appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.