DEL16 v Minister for Immigration and Border Protection [2017] FCA 1401 (30 November 2017)

Last Updated: 1 December 2017

FEDERAL COURT OF AUSTRALIA

DEL16 v Minister for Immigration and Border Protection [2017] FCA 1401

ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents’ costs of the appeal.

REASONS FOR JUDGMENT

DERRINGTON J:

1. The appellant appeals from a decision of the Federal Circuit Court of Australia which declined to grant judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had upheld a decision by the Minister’s delegate to refuse the appellant’s application for a Protection (Class XA) Visa (protection visa).
2. For the reasons which follow the appeal from the Federal Circuit Court of Australia must be dismissed.

Background

3. On 22 November 2013, the appellant, who is a national of Papua New Guinea (PNG), applied to the Minister for a protection visa. The substantive ground advanced in support of the application was that if she were returned to PNG she would be at risk of harm because, for various reasons, her ex-husband’s wives, children and tribespeople would attempt to kill her. The delegate refused to grant a visa and the appellant sought review by the Tribunal. Before the Tribunal she asserted that she would be harmed on her return to PNG because her ex-husband had died of a stroke in 2013 and her ex-husband’s wives, children and tribespeople considered that she had used sorcery to kill him such that they would seek to exact revenge upon her by killing her. She further asserted that the PNG authorities habitually failed to protect persons accused of sorcery.
4. The Tribunal affirmed the decision of the Minister’s delegate not to grant the protection visa. In an extensive analysis of the facts before it, the Tribunal held that the appellant had fabricated her claims that the other wives of her ex-husband, his children and tribespeople had accused her of sorcery and intend to cause her harm if she were to return. It upheld the delegate’s decision.
5. The Federal Circuit Court dismissed the application to it for judicial review of the Tribunal’s decision and the appellant now appeals to this Court.

First ground of appeal – refusal to grant an adjournment

6. The appellant applied to the Tribunal for review of the Minister’s decision on 12 March 2015. For reasons which are not disclosed it took approximately one year before the matter came on for hearing. At the hearing on 10 March 2016 it appears that the appellant was unable to complete the hearing as a result of her emotional state with the result that it was adjourned to 30 March 2016.
7. During the course of the hearing on 30 March 2016, it appears that the appellant’s representative considered that all necessary material had not been presented and, upon their request, the Tribunal agreed to receive what were identified as “post-hearing submissions and additional documents”. Some of this additional material was provided on 25 May 2016 and on 27 May 2016. It included a statutory declaration in which the appellant, for the first time, claimed to have been stabbed and raped in an incident in Port Moresby in 2012 which she asserted, was connected to her claim to protection. The material also included a psychological report dated 20 May 2016 as well as a letter from a general practitioner dated 24 May 2016.
8. In submissions dated 27 May 2016, which were forwarded to the Tribunal, the appellant’s migration agent asserted that a supplementary psychological report was being sought in relation to the appellant and that it would be finalised by 3 June 2016. By those submissions the appellant requested that the Tribunal defer making its determination until that report was available. The report was not provided by 3 June 2016. On 8 June 2016 the appellant’s representative sought an additional extension of time for the provision of that supplementary report. The Tribunal was informed that the report “would only be available after 1 July 2016”. No explanation was given for the further delay and the Tribunal refused that request. On 10 June 2016 the appellant’s representative again sought from the Tribunal an extension of time in which to provide the supplementary psychological report. An explanation was provided as to why the psychologist was unable to provide the report prior to 1 July 2016.
9. The Tribunal proceeded to make its decision on 30 June 2016. In its reasons it explained that it had acceded to multiple requests for additional time in which the appellant might provide the further psychological report since the second hearing and it was already in possession of a psychological report in respect of the appellant. For these reasons it considered it was inappropriate to grant any further adjournment. The Tribunal also noted that the appellant’s representatives identified that the substance of the report was that it would explain why the appellant had delayed until after the second hearing to raise claims that she was a victim of the alleged sexual assault. However, the Tribunal already had before it evidence from a psychologist as to the appellant’s current psychological state and the effect that may have on her in discussing past traumatic events. It also proceeded upon the basis that, if the appellant had genuinely been the subject of a violent rape as alleged, “there would be very strong reluctance to discuss such a traumatic experience for cultural reasons” (see paragraph [61] of the Tribunal’s reasons). In this sense it assumed in the appellant’s favour that, if the event had occurred, the omission to reveal the violent sexual assault may, of itself, be explicable.
10. The appellant submits that the Tribunal engaged in a jurisdictional error by failing to grant the appellant a further adjournment of the proceedings to enable her to present the additional psychological report. This must necessarily be an attack on the “reasonableness” of the Tribunal’s decision (see Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at 362 and 373, [63], [98]). As was submitted by counsel for the respondent before the Federal Circuit Court, in evaluating unreasonableness in an outcome-focused context where reasons are provided, the focus of the evaluation must be upon whether the reasons of the Tribunal provide an evident and intelligible justification for the decision (Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [64]). Therefore, it is the explanation provided by the Tribunal as to the reasons why the discretion was exercised which is the subject of consideration by a Court upon review (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [47]). In relation to such matters this Court held in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at 172, [64] that:

“ ... Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367[76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).

11. In that same case the Court identified (at 172, [65]) that in ascertaining whether the exercise of a discretion was unreasonable it is not appropriate to consider the matter by way of definitions, fixed formulae, categorisations or verbal descriptions. That said, assistance may be obtained from the description contained in authorities as to what might constitute an unreasonable exercise of power, such as “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. The Court emphasised that the process involves “evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.”
12. The appellant submits that the learned Federal Circuit Court Judge erred in construing the Tribunal’s reasons in relation to what it accepted when considering whether to grant an adjournment. That criticism of the learned Federal Circuit Court Judge appears to be correct. However, that does not overcome the appellant’s difficulty in establishing that the Tribunal erred in exercising its discretion to refuse an adjournment.
13. In this case the evident and intelligible justification for the refusal to grant the adjournment is manifest:

(a) The Tribunal had previously provided a number of extensions of time to allow the appellant to provide further material to it. By doing so the Tribunal had given the appellant more than a fair opportunity to present all the material on which she sought to rely in support of her application. In this respect it should be recalled that the appellant was represented by a migration agent.

(b) The appellant had indicated that the psychological report which she sought to obtain related to the reluctance of victims of sexual assault to disclose such matters. However, she had already provided a psychologist’s report in relation to her mental state which supported the proposition that she may have been reluctant to report incidents of sexual assault. She had also provided significant evidence and submissions on the issue which was to be the subject of the proposed report. Moreover the Tribunal was prepared to accept that anyone who genuinely experienced sexual assault of the nature claimed by the appellant would have a very strong reluctance to discuss such traumatic experiences for both cultural and emotional reasons. In effect, the Tribunal was prepared to conclude in favour of the appellant that if she had been sexually assaulted in 2012, her non-disclosure of the attack was somewhat explicable, particularly in light of her otherwise accepted psychological conditions.

(c) The Tribunal expressly engaged with the history of the review application, the substance of the proposed supplementary report and the reasons which the appellant’s agent submitted an adjournment should be granted.

14. Given the above, it is not possible to conclude that the decision of the Tribunal to refuse the adjournment went beyond the wide area of discretionary freedom which attends such matters. Having given the appellant a number of opportunities to produce further material and having been informed that the date on which the intended report would be available would be indefinite, the granting of a further adjournment would have amounted to an extreme indulgence on behalf of the Tribunal and one, in respect of which, the respondent might quite properly have complained.
15. The appellant relies upon the fact that the psychological report was delivered the day after the Tribunal’s decision was handed down. However, that coincidence of fact is irrelevant. The Tribunal could not have known that would occur and, indeed, the appellant did not know that would occur. The best that the appellant’s agent could tell the Tribunal was that the supplementary report would be delivered sometime after 1 July 2016. Given the prior dilatoriness of the appellant in the provision of material to the Tribunal, it could not have had any confidence that the psychologist’s report would be delivered on 1 July 2016 or shortly thereafter.
16. It should also be borne in mind that, as far as the Tribunal was aware, the supplementary report was only to go to the appellant’s credibility. That is, her propensity to change her story, to raise new matters at a late stage and to be inconsistent in her evidence. The Tribunal was not aware, and nor could it have been, that the appellant wished to utilise the proposed psychological report for other purposes such as providing supporting evidence of the alleged attack.
17. The appellant also relies upon some historical delays in the commencement of the hearing before the Tribunal. It is not apparent why that fact should have any bearing on the matter. The fact that the final hearing was delayed for approximately a year from the date on which the application was filed would have been to the benefit of the appellant who would have had a greater opportunity to more fully prepare for the hearing.
18. In the result, no error has been shown in the Tribunal’s decision to refuse the granting of the adjournment.

Second ground: failure to hold a hearing re new “issues”

19. The next ground of appeal is that the Federal Circuit Court failed to accept that the Tribunal fell into jurisdictional error by failing to invite the appellant to appear before it in relation to alleged issues which arose subsequent to the hearings on 10 February 2016 and 30 March 2016. The appellant argues that by the provision of further information to the Tribunal a number of additional issues arose which required the Tribunal to conduct a further hearing. Those additional issues were identified by the appellant as being:

(a) whether the Applicant was sexually assaulted by two men in Port Moresby some time in 2012;

(b) whether the Applicant was stabbed during the sexual assault in 2012 or, alternatively, was stabbed with a knife by one of her ex-husband’s other wives at an earlier time;

(c) whether the Applicant disclosed to her treating psychologists her claim to have been sexually assaulted in 2012;

(d) whether the Applicant’s claim to have been sexually assaulted in 2012 was fabricated;

(e) whether the Applicant had a pattern of raising new claims and, if so, how that affected her credibility.

20. The appellant asserts that the Tribunal’s obligation to conduct a further hearing arose under s 425(1) of the Migration Act 1958 (Cth) (Migration Act) which provides:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

21. The proposition thus advanced by the appellant is that her provision of the additional information gave rise to the above identified issues which, thereupon, imposed upon the Tribunal a requirement to conduct a further hearing in relation to them. It should be said that it was not identified during the course of the hearing what, if any, further material or information the appellant would wish to advance to the Tribunal in respect of those issues. It would seem implicit from the appellant’s submissions that she expected a further hearing so that, if the Tribunal were in doubt as to the information provided it might question her about it.

Decision of the Tribunal

22. The question of whether new issues were raised in this case requires a brief consideration of the reasons of the Tribunal.
23. The Tribunal, in its reasons, set out the factual background of the matter and, in particular, identified the foundation of the claim for protection being that the appellant was accused of using sorcery to cause the illness and death of her late, ex-husband and that the authorities declined to provide protection for such persons. The Tribunal noted that the appellant had been in Australia on a number of occasions prior to 2013 when she applied for a protection visa. Her presence in Australia was for unrelated purposes. The Tribunal also noted (at paragraph [6]ff of its reasons) the procedural history of the matter including the adjournment of the hearing and the multiple submissions and additional material provided by the appellant’s migration agents after the second hearing. It also identified its reasons for refusing to grant a further adjournment to permit a further psychological report to be produced (see paragraphs [8] and [9]). It then recorded the migration agent’s submission on behalf of the appellant that the additional material raised “new claims or issues” not discussed with the appellant at the hearing such that an additional hearing before the Tribunal should occur. It also records its rejection of that submission (paragraph [10]). At this point in its reasons the Tribunal records its concerns (paragraphs [12] – [13]) with the variations in the appellant’s claims and the sequential additions to those claims. In relation to this the Tribunal records (at paragraph [26]) that, at the hearing, the appellant’s credibility was in issue and that this was put to her. In particular, questions were raised as to apparent errors which the appellant had made as to when she was assaulted by her ex-husband’s other wives in Mt Hagen or Port Moresby. The Tribunal records the migration agent’s submissions that the appellant was generally consistent and that any inconsistencies can be explained by the psychological report showing that they were a consequence of her mental health. In this respect the Tribunal noted the content of the psychological report of 20 May 2016 (paragraph [28]).
24. The substance of the appellant’s claim to a fear of harm was set out at length by the Tribunal (paragraph [30]ff). In general it was observed that the appellant had lived in a polygamist relationship with her ex-husband who had three other wives. She separated from her erstwhile husband in 2008 because he was violent to her and her children. She then relocated from Mt Hagen to live in Port Moresby. In 2010 her ex-husband had a stroke and was hospitalised. She claimed that when she returned to visit him, his other wives, children, family and tribespeople alleged that she had used sorcery to cause his stroke and they beat her. She claims that they beat her again when she went to visit her ex-husband after he was transferred to hospital in Port Moresby. Her ex-husband died in October 2013. At that time she was in Australia and she claims that she feared harm from her ex-husband’s other wives, children, family and tribespeople because they would blame her for his death.
25. The Tribunal also records that during the interview with the delegate, the appellant made additional claims of numerous verbal and physical altercations with her ex-husband’s other wives prior to her separation from him. The Tribunal recorded that she made inconsistent assertions as to the reasons why she first visited Australia. Initially, she asserted that she came here to be in a relationship with an Australian citizen whom she had met on the internet. Subsequently, in her first statutory declaration, she claimed that she came to Australia because she was fearful of her life. In her statutory declaration she also detailed other altercations and fights which she had with the other wives of her erstwhile husband and his relatives. She also detailed attacks on her brother and her parents. The appellant’s first statutory declaration was noted as detailing her experiences in Port Moresby between December 2010 and September 2013. In that statutory declaration she indicated that in Port Moresby she “lived in hiding, moving from place to place” because her children had told her that her ex-husband’s tribespeople were still looking for her. She claimed that she worked to earn money to return to Australia which she did in 2013.
26. At paragraph [35] of its reasons the Tribunal identified that in the second statutory declaration (which was delivered after the final hearing) the appellant made further new assertions including that in 2012, whilst she was living in Port Moresby, she was “sexually assaulted and stabbed with a knife by two men”. She asserts that, although both men obscured their faces, one spoke the same language as the tribespeople of her ex-husband. She included a letter from her general practitioner dated 24 May 2016 whose opinion was that the scar on her body was consistent with her stated injury. The Tribunal records that she did not report the matter to the police and that she had not told the Tribunal or her migration agent about it previously because such matters are deeply shameful for her as a Papua New Guinean woman (see paragraph [35]). It is important to keep steadily in mind that this allegation was put forward as supporting the foundational claim that her ex-husband’s tribespeople wanted to cause her harm because they believed she had used sorcery to kill her ex-husband and that the PNG authorities would not accord her protection from such violence. The involvement of the ex-husband’s tribespeople was an essential element to the claim of sexual assault as it connected the event with the claimed ground for protection.
27. In the above context, the Tribunal also referred to the additional psychological report which was provided to the Tribunal post hearing (see paragraph [36]). The Tribunal identified that the psychological report set out the appellant’s “self-reported history of the violence she has suffered in the past”. It noted that the report did not refer to “the applicant stating she was a victim of sexual assault and that she suffered a knife wound in 2012”. It observed that the report did identify that one of her ex-husband’s other wives attacked her with a knife although it does not specify a date. The Tribunal noted that, by comparison, the second statutory declaration was dated after the date of the psychological report. In that statutory declaration the appellant indicated that she only told her mother and the migration agent about being a victim of sexual assault. She did not state that she told the psychologists who prepared the report about these claims. In relation to this, the Tribunal made the important finding that:

On the basis of the evidence before it, the Tribunal infers the applicant did not disclose her claims regarding being a victim of a sexual assault to her psychologist. In the view of the Tribunal, that weighs heavily against the credibility of the applicant’s claims she was a victim of a sexual assault and suffered a stab wound during that assault in 2012.

28. In its reasons the Tribunal identified the claim which founded the alleged “well-founded fear of persecution” being that the appellant had membership of a particular social group being “Papua New Guinean women accused of sorcery”. It then identified the difficulties which it had with the appellant’s claim and which were put to the appellant during the hearing. That included the lack of consistency by the appellant as to her addresses in Port Moresby (paragraphs [42] - [47]); the fact that the appellant had returned to Papua New Guinea in 2009 and 2011 despite her claims that she was allegedly then in fear of her life. This was particularly relevant to her return to Papua New Guinea in 2011 which was, allegedly, at a time after she had been accused of sorcery, her brother and parents had been attacked, and she had learned that people were searching for her in Port Moresby (paragraphs [48] –[54]). The Tribunal found that her return to Papua New Guinea in 2011 significantly undermined her credibility (paragraph [54]). The Tribunal was also concerned as to the appellant’s evidence relating to her residence in Port Moresby between July 2011 and September 2013 which was inconsistent with her work experience and other evidence (paragraphs [55] – [58]). It also found that her evidence about her time in Port Moresby was inconsistent particularly regarding whether she was living in hiding in Port Moresby. The inconsistencies were not, according to the Tribunal, explicable by the appellant’s state of mental health. The Tribunal concluded that the fact that she did not suffer harm in Port Moresby in those years undermined her credibility.
29. It was in the above context that the Tribunal considered the alleged sexual assault in 2012 (see paragraph [59]ff). It identified that the appellant had raised this new claim in her additional material where she asserted that “in 2012 she was the victim of a sexual assault and was stabbed by two men in Port Moresby” (see paragraph [59]). This, the Tribunal recognised, was raised in corroboration of the appellant’s claims that the family and tribespeople of her ex-husband were looking for her in order to cause her harm because of her alleged sorcery. It was also apparently corroborative of the appellant’s claim that she had nowhere to live in Port Moresby and that she was living by hiding in the bush.
30. However, the Tribunal rejected this “new claim” for a number of reasons. First, it did not accept the appellant was living by hiding in the bushes of Port Moresby. It concluded that she was, in the period from 2011 to 2013, living with her aunt (see paragraph [62]). It also rejected the assertion that the appellant was stabbed during a sexual assault and concluded that the appellant was stabbed by one of her ex-husband’s other wives (paragraph [63]). It further rejected that the other wives of her ex-husband, his children, family and tribespeople accused her of using sorcery to cause her ex-husband’s illness and death. It also rejected the proposition that the appellant had been sexually assaulted by anyone arising from these sorcery allegations (see paragraph [64]). The Tribunal also found that the appellant’s credibility was lacking and that, whenever one of her claims was rejected or called into question by a decision-maker, she would make a new claim in an attempt to rectify any deficiencies. A number of examples were given (see paragraph [65]).
31. Ultimately, the Tribunal found that the appellant had fabricated her claim that the other wives of her ex-husband, his children, family and tribespeople had accused her of using sorcery and that they had harmed and threatened harm to her or her family. The rejection of this claim was based on the multiple inconsistencies in her evidence and her contradictory and non-persuasive explanations for them. It was also important to the Tribunal that the appellant returned to Papua New Guinea in 2009 and in 2011, despite the fact that the alleged threats to her life and wellbeing then existed (see paragraph [73]).
32. The Tribunal further rejected the claim that the appellant had been accused of using sorcery and that while she was living in Port Moresby anyone looked for her to cause her harm. It specifically rejected that she was living in hiding in Port Moresby and, further, it rejected that she was sexually assaulted and stabbed by two men in Port Moresby in 2012 (see paragraph [74]). In the result the Tribunal rejected the appellant’s claim.

The proposition advanced by the appellant

33. The proposition advanced by the appellant on the appeal is that the question of whether she was sexually assaulted by two men in Port Moresby sometime in 2012 was a “new issue” in respect of which the Tribunal ought to have conducted a further hearing. So phrased, that perhaps understates the matter which was actually raised by the appellant in the new material. The appellant asserted the existence in 2012 of a most serious event. It was an attack by two men who sexually assaulted her and at the same time caused her grievous bodily harm by stabbing her with a knife. This was allegedly linked to her ex-husband’s tribespeople because it was asserted that one of the men spoke their dialect.
34. Ultimately, the question is whether this additional evidence created a “new issue” requiring a further hearing.
35. The learned Federal Circuit Court Judge held that the matter of the alleged sexual assault was merely a factor that the Tribunal was entitled to look at with regard to the “same issue as to whether or not the applicant had a well-founded fear of persecution or whether there was objectively serious harm to be done to the applicant if she were returned to Papua New Guinea” (see paragraph [39] of the reasons for judgment of the FCCA). The Minister quite correctly acknowledges that conclusion to be in error because his Honour considered the relevant “issue” at too higher level of generality (see SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).
36. On appeal, the Minister asserts that the issue which had been raised by the Tribunal and in respect of which evidence had been advanced, was the lack of harm sustained by the appellant in Port Moresby in the period between July 2011 and September 2013. The additional new evidence (being in the form of the additional statutory declaration) was further additional evidence about that “extant issue”.

The authorities

37. Of central importance in discussions of this nature is the decision of the High Court in Minster for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489. In that case, the applicant for a visa had claimed a fear of persecution arising as a result of the practice of his Christianity in his home nation of China. After the hearing before the Refugee Review Tribunal (RRT), the Tribunal contacted a person identified by the applicant as being a person able to verify, in part, his claim. Upon receiving information from that person the RRT invited the applicant to comment upon the information. The Tribunal did not hold any further hearing and, after receiving a response from the applicant, affirmed the delegate’s decision to refuse the applicant a protection visa. It was contended by the applicant that the information provided to the Tribunal from the person contacted by it, gave rise to new issues which required the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to it. The Court (French CJ, Heydon, Crennan, Kiefel and Bell JJ) identified that whether a new issue has been raised will depend upon a consideration of all the circumstances of the case. Their Honours said at [51]:

Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah's evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL. The extant issue was whether the first respondent had been an active Christian in China. Mr Cheah's knowledge of the first respondent's past activities in China deriving from any account given to him by the first respondent was directly related to that issue. Further, s 422B of the Act suggests that there is no residual procedural fairness requirement to give another hearing extraneous to Div 4 of Pt 7. If there were any extraneous right to procedural fairness, as suggested by the first respondent, there was no breach of the obligation here. Importantly, the first respondent had an opportunity to deal with Mr Cheah's information by responding (as he did) to the letter from the RRT conforming with s 424A.

38. It is apparent that the court identified the relevant “issue” for the purposes of s 425(1) as being whether the applicant had been “an active Christian in China”. Material going to that issue was merely material going to an extant issue and does not raise new issues.
39. In SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 at 29, [115] Besanko J identified that, in relation to s 425(1) of the Migration Act, matters which are much more specific than the main elements in the determination of the application might become “issues” in relation to a delegate’s decision by virtue of the delegate’s reasons. His Honour added that:

Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.

His Honour’s observations reflect those in the earlier decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 where it identified that it is the applicant’s opportunity to be heard which is important in ascertaining what the relevant issues are. It also held that the relevant issues arising in relation to a decision would be those which the original decision-maker identified as being determinative (at [35]).

The Tribunal’s consideration surrounding the issue

40. At the hearing before the Tribunal the appellant was questioned concerning the fact that the evidence before the Tribunal did not suggest that anything happened to her whilst living in Port Moresby between 2011 and 2013. This was in the context of two matters. The first was the Tribunal’s questioning the appellant’s credibility and the second was the question of whether the appellant was truly at risk of harm from her ex-husband’s wives, family and tribespeople (see paragraph [65] of the Tribunal’s reasons). The Tribunal had called both matters into question. As appears from the above analysis of the Tribunal’s reasons, during the course of the hearing it had identified the lack of any harm or threat of harm to the appellant from her ex-husband’s tribespeople after she had returned to PNG in 2011. Some evidence (which was not accepted) had been given in relation to this issue by the appellant who claimed that she was living by hiding in the bushes around PNG at night. The Tribunal found that, in fact, she had been living with her aunt. The evidence of the alleged sexual assault and stabbing was intended to add to the appellant’s evidence of fear of harm were she to return to Port Moresby. It also had the intended purpose of rehabilitating her credibility which had been called into question by the Tribunal.
41. The evidence submitted by the appellant after the Tribunal hearing went directly to the issues which had been agitated in the course of the hearing, being the nature and extent of the harm to which the appellant was, in fact, subject to from those associated with her ex-husband and the appellant’s lack of credibility. It was additional evidence about those extant issues and it did not, of itself, raise any new issue. Whilst the event in question was new, that is beside the point, the question is whether or not the Tribunal was turning its mind to any “new issue”? In this case there was no “new issue”. It follows that the second ground of appeal must also fail.

The third ground of appeal: failure to take into account relevant considerations

42. The foundational basis for this ground of appeal is not entirely clear. It was originally founded upon an allegation of a failure by the Tribunal to take into account relevant considerations or, alternatively, “ignoring relevant material”. When analysed, the gravamen of the complaint is that the Tribunal overlooked important material in the psychologist’s report and a GP’s report which allegedly supported the appellant’s claim to have been sexually assaulted in 2012. As the matter was argued, the jurisdictional foundation of the complaint became one of a constructive failure of the Tribunal to exercise its jurisdiction by reason of its failure to deal with a “claim” advanced by the appellant.
43. Under the heading “Consideration of claims and evidence” in its reasons, and under the further heading “Well-founded fear of persecution”, the Tribunal considered, amongst other things, the alleged threats of harm to which the appellant claimed to be subject. They were identified as threats of harm from the wives, children, family and tribespeople of her ex-husband founded upon their accusations that she had engaged in sorcery to bring about his demise. The Tribunal then compared the assertions in the appellant’s first statutory declaration with those in her second. It noted that the claim that in 2012 the appellant was sexually assaulted and stabbed with a knife when she was living in Port Moresby was not mentioned in the first statutory declaration but was mentioned in the second. The Tribunal identified that the appellant had not spoken to the police about the incident and, prior to the giving of the second statutory declaration, had not told the Tribunal about this matter despite opportunity to do so. At paragraph [36] the Tribunal identified that the incident did not appear in the psychological report which had been submitted after the hearing. It is necessary to set that paragraph out in full. It reads as follows:

36. In the psychological report, the psychologists set out the applicant's self-reported history of the violence she has suffered in the past. The report does not refer to the applicant stating she was a victim of sexual assault and that she suffered a knife wound in 2012. It does state the applicant reported one of Mr T's other wives attacked her with a knife, but does not give a reference date. The Tribunal notes the second statutory declaration is dated after the date of the psychological report. In her second statutory declaration the applicant states she has only told her mother and the migration agent about her being a victim of sexual assault. She does not state she told the psychologists about those claims. On the basis of the evidence before it, the Tribunal infers the applicant did not disclose her claims regarding being a victim of a sexual assault to her psychologists. In the view of the Tribunal, that weighs heavily against the credibility of the applicant's claims she was a victim of a sexual assault and suffered a stab wound during that assault in 2012. The Tribunal refers to this in more detail below.

44. The appellant relies on the antepenultimate sentence which reads, “On the basis of the evidence before it, the Tribunal infers the applicant did not disclose her claims regarding being a victim of a sexual assault to her psychologist” as the foundation of her claim in this respect.
45. The import of that sentence becomes apparent when the psychologist’s report is considered. In a number of locations throughout that report, reference is made to the appellant being raped by two men in Port Moresby. The appellant submits that the omission by the Tribunal in paragraph [36] to refer to the statements in the report that the appellant was raped in Port Moresby, discloses that the Tribunal did not consider the psychological report or did not consider it in a material respect such that it can be inferred that it did not consider a claim advanced by her.
46. That submission, whilst superficially attractive, is founded upon a misreading of the Tribunal’s reasons and, in particular, of paragraph [36]. In that paragraph, the Tribunal was concerned to ascertain whether the particular incident which supports the appellant’s claim to protection had been reported to the psychologists. That incident was that she had been raped by two men in Port Moresby in 2012 during which she was stabbed and that one of the two perpetrators was associated with her ex-husband or his tribespeople. It was this incident which was the subject of the Tribunal’s consideration in paragraph [36] and, specifically, in the antepenultimate sentence. The Tribunal accurately determined that the psychologist’s report did not record that this incident had been reported to the psychologist.
47. The references which appear in the psychological report relating to the rape of the appellant are vague. They are simply to the effect that the appellant was raped by two men. It is not recorded that she was stabbed with a knife on that occasion and neither is it stated that one of the rapists was a tribespeople of her ex-husband. Importantly, to the extent to which, in the psychologist’s report, the rape is identified as having occurred in Port Moresby at night time it appears to be accepted that the indication is that this event took place in around 2009 to 2010. It should also be recorded that the references to the sexual assault in the psychologists’ report appears to be in contradistinction to the mistreatment of the appellant by her ex-husband’s tribespeople in that the references seem to suggest that the perpetrators were unrelated to those persons.
48. It was also relevant to the Tribunal’s decision that the record of self reporting in the psychologist’s report is in contradistinction to the material which appears in the statutory declaration. In that statutory declaration, the appellant gives a detailed description of the event specifying that she was stabbed in her stomach by one of the two men who raped her and that one of the two men was speaking the same language as her ex-husband’s people. She specifies the event as having occurred “one evening in 2012”. The description of the sexual assault of the appellant recorded in the psychological report is, by comparison, vague, temporarily indeterminate at best and suggestive of having been committed by unrelated persons.
49. It must be kept in mind that the appellant’s allegation of rape by tribespeople of her ex-husband was advanced to support the allegation that she was targeted by such people because she allegedly used sorcery to cause the death of her ex-husband. It was part of the claim for protection made by the appellant that the authorities in Papua New Guinea would not protect people who were accused of sorcery. The appellant did not found any claim to protection merely on the basis that she was the victim of a sexual assault quite separate from the persecution by the tribespeople of her ex-husband. It is in this light that paragraph [36] of the Tribunal’s reasons needs to be considered.

There was no error in paragraph 36 of the Tribunal’s reasons

50. In the above context, it is apparent that in paragraph [36] of its reasons, the Tribunal was concerned to assess the veracity of the claim that the appellant had been sexually assaulted in an incident in which she suffered a knife wound in 2012 and that, at least one of the perpetrators, was a tribesman of her ex-husband.
51. When considered in this light, it is apparent that the psychological report is accurately assayed. The Tribunal was seeking to ascertain whether the appellant had previously raised this significant incident with the psychologist. Quite accurately the Tribunal identifies that no such incident was raised. That being so, the antepenultimate sentence in paragraph [36] is accurate, despite the fact that the appellant had, apparently, reported to the psychologist that she had been the victim of a sexual assault on some other occasion.
52. In the appellant’s written submissions it is asserted that the psychologist’s report “contains seven separate references to the appellant having been sexually assaulted (raped) in 2012”. That submission overstates the content of the references in the psychologist’s report. As mentioned, those references are vague. None of them refer to the event as having taken place in 2012. Indeed, counsel for the appellant quite rightly acknowledged that the only reference to a rape which was temporally identified would seem to suggest that the event took place in either 2009 or 2010 (see the reference at p 217 of the Appeal Book, Part B and transcript p 17). For the purposes of advancing the appellant’s claim, the timing of the alleged sexual assault in 2012 was important.
53. The appellant framed her argument on appeal in relation to this issue on the ground that there existed a constructive failure to exercise jurisdiction because the Tribunal did not consider the significant aspect of the psychologist’s report, being the recording of the assertion that the appellant had, in fact, been raped. Reliance was placed upon the decision of Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 which, in turn, relied upon the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323.
54. However, the central aspect of SBAA was that the Tribunal had failed to have regard to a report’s “major finding” which was pivotal to the decision in question such that the failure to “deal with” the relevant material constituted a failure to exercise jurisdiction. The appellant asserts that the failure to consider “relevant material” is of itself a freestanding error which can amount to a jurisdictional error.
55. The true nature and scope of the decision in SBAA was carefully analysed by Tracey J in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572. His Honour considered the decision of the Migration Review Tribunal (which had been unsuccessfully appealed to the Federal Magistrates Court) in circumstances where the applicant had sought a protection visa on the grounds that he was associated with the communist party of India. The appellant had produced a document to the Tribunal which purportedly supported his claim to membership of a communist party affiliated group. The Tribunal did not accept the appellant’s version of events and rejected many of his claims. It rejected the proposition that he was a member of the communist party affiliated group, but it did not refer to the letter which he had obtained in support. It was alleged that the Tribunal had constructively failed to exercise its jurisdiction as a result of the failure to refer to the corroborating documents. Although Tracey J concluded that the Tribunal had not overlooked the letter in question such that the appeal would fail, his Honour nevertheless considered what the position would have been had he reached a contrary conclusion on that point. His Honour referred to the observations of McHugh, Gummow and Hayne JJ in Yusuf (at [351]) which might be taken as suggesting that “ignoring relevant materials” is a standalone basis for a failure to exercise jurisdiction. However his Honour reasoned that such a reference could only be taken to mean a failure to take into account relevant material which the Tribunal was bound to take into account (at paragraph [55]). His Honour also opined that the passage may be taken as meaning that jurisdictional error might arise when a Tribunal makes an error of law which causes it to ignore relevant material. That is, that the failure to have regard to relevant material is a consequence of an antecedent error of law. His Honour gave the example of where a decision-maker misdirects himself as to the proper scope of the relevant inquiry. This he regarded as being the proper construction of the determination in Yusuf.
56. His Honour then considered the various formulations which have been developed, in the context of migration matters, to distinguish between material which a decision-maker was bound to take into account and material which the decision-maker was not. His Honour observed that it had been held that “important relevant material going to a central consideration in the matter” is regarded as essential material which the decision-maker is bound to take into account (see WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21]). Alternatively, in SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 at [32]- [33] Lander J had identified the test as being whether or not the evidence in question was “overwhelming evidence relating to that integer” which would have affected or might have affected the result. In Minister for Immigration and Citizenship v MZYZA [2013] FCA 572, Tracey J observed at [60] that:

Inevitably, value judgments are involved in determining whether material can be regarded as so “fundamental” or so “important” or so “overwhelming” that a failure to have regard to it constitutes jurisdictional error.

57. His Honour also considered the views of Wilcox and Marshall JJ in SBAA to the effect that the touchstone was whether the evidence was “of pivotal importance to the only real issue the Tribunal had to determine”.
58. Ultimately, Tracey J held that even if the letter in question had not been considered such a failure did not constitute a jurisdictional error on behalf of the Tribunal. The failure was not reflective of some error of law. Further, the evidence in question was not “evidence of pivotal importance or as being so fundamental to the first respondent’s claim, that a failure to give consideration to its contents caused jurisdictional error”.
59. In the present case, the evidence which the appellant claims that the Tribunal overlooked were the statements in the psychological report which revealed that the appellant had informed the psychologist that she had been raped by two men. However, that evidence was not of pivotal importance or fundamental to the appellant’s claim. To the extent to which it recorded what the appellant had told the psychologist, the psychological report was relevant in two respects. First it went to the credibility of the appellant who had constantly changed her story on a number of occasions. The second was whether the appellant had a well-founded fear of persecution as a result of being part of the social group of women who were accused of sorcery.
60. As to the first question, the statements in the psychologist’s report were not of pivotal importance or fundamental to the appellant’s claim that she was a credible witness. Her credibility had been severely damaged by her changing evidence and inconsistencies. In a sense, the new evidence could only have damaged her credibility even further. In her statutory declaration, which was dated after the date of the report, she gave evidence of an attack involving a stabbing and rape by a person probably associated with her ex-husband. It was said to have occurred in Port Moresby in 2012. The Tribunal considered the psychologist’s report and found no mention of this particular attack. That is why the appellant’s credibility suffered further by the addition of this further material. To the extent to which there were references to her having been raped in Port Moresby, the references either related to an earlier period of time or related to attacks by strangers who were not associated with her ex-husband. Such references in the psychologist’s report did not buttress what was said in the statutory declaration. Indeed, they are more properly seen as being yet another inconsistency in the appellant’s evidence which further undermines her credibility.
61. To the extent to which the appellant relies upon the evidence as supporting her claim to protection, the references to her having been raped in the psychologist’s report do not advance that issue. They do not indicate that the appellant was persecuted for a convention ground nor that she was persecuted by reason of her particular circumstances.
62. In the result, to the extent to which the Tribunal did not deal with the generalised allegations of sexual assault (which appears to have occurred at some time between 2009 to 2010) they were not relevant to the case agitated to the Tribunal. They were certainly not of pivotal importance or fundamental to the appellant’s claim. Whilst it is arguable that they may have had some corroborative effect, the reality is that they were more likely to be damaging of the appellant’s claims because they added yet another inconsistency in the appellant’s various versions of events.
63. The appellant also places weight on the manner in which the Tribunal dealt with a GP’s letter dated 24 May 2016 which identified that a scar on the appellant’s abdomen was consistent with the wound having been sustained in 2012. That said, the evidence is vague in that it does not stipulate that the age of the scar is also not consistent with the wound having been sustained earlier. However, the Tribunal did consider the GP’s report and, in particular, the manner in which the appellant sought to rely upon it. The Tribunal made the finding of fact that the scar was also consistent with the appellant having been attacked with a knife by her ex-husband’s fourth wife. It cannot be said that the Tribunal overlooked or did not consider this evidence. It can also be said that it was not evidence of a pivotal nature or would affect the outcome if it were construed differently.
64. It follows that this ground of appeal must also fail.

Conclusion

65. In the result none of the appellant’s grounds are sustainable and the appeal must be dismissed.

Associate:



Dated: 30 November 2017