QLN 043 v Republic [2018] NRSC 3; Refugee Appeal Case 3 of 2017 (20 February 2018)

IN THE SUPREME COURT OF NAURU

AT YAREN

Case No. 3 of 2017

IN THE MATTER OF an appeal against a decision of the Refugee Status Review Tribunal TFN T15/00284, brought pursuant to s 43 of the Refugees Convention Act 1972

BETWEEN

QLN 043 Appellant

AND

THE REPUBLIC Respondent

Before: Marshall J

Appellant: Nick Wood
Respondent: Catherine Symons

Date of Hearing: 23 November 2017

Date of Judgment:
CATCHWORDS

APPEAL – Refugee Status Review Tribunal – obligation to make recording of hearing – whether breach of obligation gives rise to appealable error of law – failure to consider evidence – s 23 of Refugee Convention Act 2012 (Nr) – APPEAL ALLOWED.

JUDGMENT

1. This matter is before the Court pursuant to section 43 of the Refugee Convention Act 2012 (“the Act”) which provides:
   

43 Jurisdiction of the Supreme Court

(1) A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.

(2) The parties to the appeal are the Appellant and the Republic.

...

2. The determinations open to this Court are defined in section 44 of the Act:
   

44 Decision by Supreme Court on appeal

(1) In deciding an appeal, the Supreme Court may make either of the following orders:

(a) an order affirming the decision of the Tribunal;

(b) an order remitting the matter to the Tribunal for reconsideration in accordance with any directions of the Court.

3. The Refugee Status Review Tribunal (“the Tribunal”) delivered its decision on 3 November 2016 affirming the decision of the Secretary of the Department of Justice and Border Control (“the Secretary”) of 11 October 2015, that the Appellant is not recognised as a refugee under the 1951 Refugees Convention^[1] relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”), and is not owed complementary protection under the Act.
   
4. The Appellant filed a Notice of Appeal with this Court pursuant to s 43(1) of the Act on 16 January 2017, and an Amended Notice of Appeal on 30 June 2017. A Further Amended Notice of Appeal was filed on 15 November 2017.
   

BACKGROUND

5. The Appellant is a Tamil male born on Mannar Island in the Northern Province of Sri Lanka. He married in 1997. In 2007, he was given some land outside the displaced persons camp in Pesalai he was living in, and his wife, children, and wife’s mother moved to their own house. His mother, stepfather, sister and three brothers are in Sri Lanka. The Appellant claims that his adopted son (QLN 042), referred to by the Appellant as his “nephew”, has lived with his wife and her mother since he was a very young child.
   
6. The Appellant claims a fear of harm arising from his transportation of goods for the Liberation Tigers of Tamil Eelam (“LTTE”) during the civil war, and subsequent imputation with an LTTE association and an anti-government political opinion. The Appellant also claims a fear of harm on the basis of his Tamil ethnicity, being a young Tamil from the North, being a Tamil fisherman, his illegal departure from Sri Lanka, and his identity as a “failed asylum seeker”.
   
7. The Appellant travelled to Australia in 2014, and was transferred to Nauru after his arrival for the purposes of having his claims assessed.
   

INITIAL APPLICATION FOR REFUGEE STATUS DETERMINATION

8. The Appellant attended a Refugee Status Determination (“RSD”) Interview on 26 November 2014. The Secretary summarised the material claims presented by the Appellant at that interview as follows:
   
   • The Applicant was displaced as a youth, along with his parents and family, due to the Sri Lankan civil conflict and lived illegally in India between 1990 and 1993. They were registered with the UNHCR and were provided with assistance in returning to Pesalai in 1993 where they continued to be supported by the UNHCR in a camp for displaced persons. During the 1990s the UNHCR provided a house for the Applicant, his mother and his family to live in outside, but very close to the camp.
   • The Applicant was married in 1997 and in about 2007 they moved into their own house, close by to the camp.
   • The Applicant was able to provide for his family by working as a fisherman on his own fishing boat. When the war started again however, it became more difficult, since there were more questions and restrictions on fisherman.
   • The Applicant cannot remember the first occasion, but claimed to have been approached by LTTE members and forced to transport supplies (food, fuel and materials) to LTTE held areas in his fishing boat. The LTTE threatened to harm the Applicant and his family if he refused to do this. Although he does not recall the first occasion he was forced in this manner, the Applicant described how he did this work for the LTTE “every second day” for a number of years.
   • He was constantly suspected of having an LTTE association because of his Tamil ethnicity and because he was forced to transport goods for the LTTE in his fishing boat to Vidattaltivu for a number of years during the conflict.
   • Between 1999 and 2009 he was arrested, detained and tortured on many occasions by the Sri Lankan Army (SLA) and accused of assisting the LTTE and providing them supplies.
   • In 2005 the Applicant’s house was subject to a round-up and he was arrested and detained for two days. The Applicant’s wife attempted to stop the SLA and was hit with the butt of a gun. During this time of detention, he was questioned and beaten by the authorities who asked him about LTTE involvement. The Applicant admitted to being forced to assist the LTTE by transporting goods and supplies to LTTE held areas in his fishing boat. The Applicant was released after his wife and children came and cried and begged for his release. On release, the Applicant was told he could not leave the area and would be under constant surveillance.
   • One day in 2009 towards the end of the civil war, a fisherman came and told the Applicant that his uncle was injured and asked if he could please bring him some food. So the Applicant went in his boat, alone, and took some supplies to his uncle in the next village along from Vidattaltivu, called Adampan.
   • Due to the battle being fought on the sea, the Applicant could not return to Pesalai in the 24 hours time frame stipulated by the Sri Lankan authorities. Knowing he would be punished and accused of assisting the LTTE, he sought to travel illegally to India instead and left on a trawler from Vidattaltivu. Only once in India did he call his family and tell them what had happened. His wife informed him to not return home since the authorities were looking for him.
   • The Applicant lived and worked in India illegally between 2009 and 2014. His family joined him in 2013 and they departed illegally, intending to travel to Australia by boat in 2014.^[2]
     
9. The Secretary accepted the following claims to be credible:
   
   • The Appellant and his family have been adversely affected by the civil conflict, including being displaced, losing family members in the conflict and having to be assisted by government and non-government agencies as a displaced person in Mannar.
   • As a fisherman the Appellant and his movements were closely monitored by the Sri Lankan authorities and he had to comply with fishing restrictions, rigorous checking of his boat and special identification requirements.
   • The Appellant came into contact with LTTE operatives and was forced to transport goods in his boat on at least one occasion.
   • The Appellant admitted to forced interaction with the LTTE to the Sri Lankan authorities during a period of detention and questioning and that following this admission the Appellant was released.
   • The Appellant departed Sri Lanka illegally by boat to India in 2009.^[3]
     
10. However, the Secretary had doubts as to the credibility of the following claims:
    
    • The Appellant’s interaction with the LTTE was as long-term and frequent as the Appellant claimed.
    • The Appellant travelled by boat to Adampan to take food to his injured uncle and was waylaid by intense fighting causing him to overstay his fishing curfew in 2009.
    • The Appellant was of adverse interest to the Sri Lankan authorities for LTTE links, or any other reason, prior to his illegal departure to India.^[4]
      
11. In making these findings, the Secretary took note of the following:
    
    • There were internal inconsistencies in the Appellant’s testimony as to being detained and tortured by the LTTE between 1999 and 2009;^[5]
    • The claimed level of adverse interest in the Appellant by the LTTE, seen through the alleged apprehending of the Appellant on 15 to 20 occasions, is inconsistent with allowing the Appellant to continue his fishing practices;^[6]
    • The Appellant’s claim that in 2009 the LTTE held key towns in the Vanni, such as Vidattaltivu and Adampan, is not supported by country information;^[7]
    • The Appellant’s evidence regarding breaching the SLA fishing restrictions to visit his uncle in the Vanni was inconsistent and vague;^[8]
    • The Appellant claimed that his uncle lived in Adampan, which was “near the shore”, when Adampan is actually several kilometres from the sea;^[9]
    • The Appellant’s evidence as to the nature and source of his uncle’s injury was inconsistent;^[10]
    • The Appellant was unable to describe the journey to his uncle’s in the level of detail reasonably expected of a person recalling lived experience.^[11]
      
12. On the basis of country information indicating that the situation for Tamils in Sri Lanka is positively changing, the Secretary did not accept that there was a reasonable possibility of the Appellant suffering persecution solely because of his Tamil ethnicity.^[12] The Appellant further had no profile of interest to the authorities, and there was no reasonable possibility the Appellant would be imputed with the political opinion of a LTTE supporter, and face harm on this basis.^[13]
    
13. While the Secretary accepted that, as a returnee to Sri Lanka, the Appellant would be subject to questioning from officials at the airport, it was noted that these procedures have a legitimate state objective, and the vast majority are released almost immediately.^[14] As the Appellant has not previously been politically active and has not raised any credible reason to suspect he would be subject to harsher treatment than other returnees, the Secretary was not satisfied that the Appellant would face harm by reason of having left Sri Lanka illegally.^[15]
    
14. The Secretary was not satisfied that the Appellant was a refugee under the Act. The Secretary also considered that there was no evidence to suggest there was a reasonable possibility of the Appellant facing harm that would result in Nauru breaching its international obligations by returning him to Sri Lanka.
    

REFUGEE STATUS REVIEW TRIBUNAL

15. Before the Tribunal, the Appellant reiterated and expanded upon his claims as to working as a fisherman in Pesalai, the restrictions imposed by the Navy, carrying goods for the LTTE, his alleged arrest in 2005, his travel to Vidattaltivu to bring his injured uncle some food, and his subsequent travel to India because he was unable to return to Pesalai by the curfew.
    
16. The Tribunal accepted that the Appellant was subject to restrictions as a fisherman in the past, but was satisfied that such restrictions are no longer in place, and the Navy would not mistreat the Appellant if he returned to work as a fisherman in Pesalai.^[16] While the Tribunal accepted that the Appellant may have occasionally transported goods for the LTTE, it did not accept that this occurred as frequently as claimed, as it would have been very difficult for the Appellant to avoid a Navy patrol if this was the case.^[17]
    
17. In relation to the bomb blast in 2005, the Tribunal accepted that the Navy and SLA might have “rounded up” people including the Appellant, and that he may have been detained for two days and questioned in relation to the bomb blast.^[18] However, the Tribunal did not accept that the Appellant was the only person detained, or suspected of being involved in the blast. The Appellant’s evidence that he had no further contact with the Navy about the blast further indicates that the Appellant was not of adverse interest to the authorities.^[19]
    
18. The Tribunal did not accept that the Appellant travelled to Vidattaltivu to give food to his uncle, and left his boat and engine to travel to India because he would have been unable to return before the curfew. It considered it implausible that the Appellant would have left his boat and engine in Vidattaltivu, his source of livelihood, especially when he had a valid reason for not returning in time.^[20] The Tribunal also noted discrepancies between the accounts of the Appellant, and of his wife, regarding when the Appellant made the trip to his uncle’s, and when he first contacted his wife after arriving in India.^[21] Further, it did not accept that the Appellant travelled to India before the end of the civil war, as the Appellant had given evidence that he was unable to register with the UNHCR when he arrived, and registrations did not close until after the conflict had ended.^[22]
    
19. The Tribunal therefore found, in light of the above findings, that the Appellant did not face a real possibility of being persecuted because of an actual or imputed association with the LTTE arising from his fishing practices, transportation of goods for the LTTE, failing to return to Pesalai before the curfew, or his membership of the particular social group comprising LTTE smugglers.^[23] Given the Appellant’s evidence that the Navy knew the Appellant carried goods for the LTTE and took no action against him in 2005, the Tribunal did not accept that he would be detained or otherwise harmed now.^[24]
    
20. As with the Secretary, the Tribunal considered that the security situation for Tamils in Sri Lanka had improved in recent years, and was not satisfied that the Appellant faced a real possibility of persecution because of his Tamil race, as a Tamil from the North, or as a Tamil fisherman.^[25] In addition, noting the small number of allegations of torture or mistreatment by returnees, and the finding that the Appellant would not be imputed with an LTTE association, the Tribunal did not accept that the Appellant would be subject to mistreatment upon return as a failed asylum seeker other than the standard questioning.^[26] Finally, while accepting that the Appellant might be remanded for a short period for his illegal departure from Sri Lanka, the evidence did not suggest that such returnees were tortured or otherwise harmed while on remand.^[27] The Tribunal therefore concluded that there was no reasonable possibility of the Appellant facing persecution in the reasonably foreseeable future on account of being a failed asylum seeker, or departing the country illegally.
    
21. The Tribunal concluded that the Appellant was not owed refugee status.^[28] The Tribunal further concluded that returning the Appellant to Sri Lanka would not breach Nauru’s international obligations, finding, in particular, that while the Appellant may experience a moderate level of discrimination by being a Tamil from the North, this did not amount to torture or cruel, inhuman or degrading treatment or punishment.^[29]
    

ISSUES ON THE APPEAL

22. The Appellant submits that the Tribunal made two errors of law in coming to its decision. The first concerns whether there has been a breach of the Act. The second raises the issue of whether the failure of the Tribunal to refer to certain evidence in its decision gave rise to an error of law.
    

The s 23(2) Point

23. Section 23 of the Act provides:
    
    • (1) The hearing of an application for review by the Tribunal must be in private.
    • (2) An audio or audiovisual recording must be made of a hearing.
      
24. The Appellant submits that s 23(2) was breached because a recording was not made of the entirety of his hearing. The hearing for an application for review commenced on 14 July 2016. It was a joint hearing, dealing with claims by the Appellant and his wife. The hearing was commenced at 9:31 am and concluded at 7:01 pm, with occasional breaks. A recording was made of the hearing which was later transcribed. However two parts of the hearing were not recorded and do not appear on the transcript. The first such period is at a time prior to 2:48 pm when the transcript records that the hearing was resumed after an adjournment. Prior to the adjournment there is an incomplete question or comment made by the presiding member and no response to that question or comment. At a period prior to 3:57 pm the transcript records that the hearing was resumed after an adjournment. Prior to the adjournment there is an incomplete comment from the presiding member.
    
25. There is in evidence before the Court a written record of the proceedings with respect to the Appellant’s application on 14 July 2016. It was prepared by one of the members who constituted the Tribunal. The Tribunal hearing notes record that part of the proceedings before the Tribunal which are not captured in the transcript and appear before 2:48 pm. The same applies to the period prior to 3:57 pm. However the written record is of limited utility because the notes are not put forward as a complete and contemporaneous record of what occurred before the Tribunal. It is not in dispute that the notes may have not recorded submissions, evidence and claims of the Appellant.
    
26. Counsel for the Republic contends that the period prior to 3:57 pm concerned the case of the Appellant’s wife and that the Appellant was not present at that time. Counsel contends that period of time was not part of the Appellant’s application for review by the Tribunal. Consequently, it is contended, any breach of s 23(2) concerning the second period could not lead to remittal of the Appellant’s application for review.
    
27. Nothing turns on the characterisation of the second point because if s 23(2) has been breached in respect of the first period, during the Appellant’s case, if it is open to his counsel to contend that the breach led to legal error by the Tribunal.
    
28. Counsel for the Appellant submits that s 23 imposes a burden on the Tribunal and a corresponding right or advantage on an Applicant for review. The making of the recording of a hearing ensures that there is a precise and complete record of evidence and submissions at the hearing. Counsel contends that this ensures that the Tribunal is later able to assess the Applicant’s evidence and submissions and consider them properly. Counsel submits that s 23(2) may be seen as part of the Tribunal’s obligation to accord procedural fairness. Counsel further submits that the availability of a precise and complete record of the hearing enables an Applicant to ascertain whether the decision is affected by legal error.
    
29. Counsel for the Appellant further submits that a breach of s 23(2) gives rise to an appealable point of law because it is a failure to comply with the requirements of the Act in connection with making a decision under s 34 of the Act. Section 34(4) provides that:
    

“The Tribunal must give the applicant for review and the Secretary 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 other material on which the findings of fact were based.”

30. Counsel for the Republic submits that a failure to comply with s 23(2) does not have the necessary consequence that the decision made by the Tribunal would be affected by appealable error. Counsel contends that s 23(2) is not an element of the Tribunal’s procedural fairness obligations but that even if it were the Appellant is unable to demonstrate that he was deprived of an advantage or right conferred by s 23(2).
    
31. Counsel for the Republic submits that the reasons of the Tribunal themselves are the starting point for identification of error in the Tribunal’s reasons. The recording of the proceeding may assist in substantiating any error so identified. There may be an exception to that general rule where the record is used to demonstrate actual bias in the Tribunal on account of its conduct of the review.
    
32. In Marsh v Australian Capital Territory^[30] (“Marsh”) it was held that where a provision akin to s 23(2) was not complied with, the decision was not duly invalidated. In Marsh, the Crimes (Sentence Administration) Act 2005 (ACT), required “the Director General” to ensure that a sound or audiovisual record is made of each hearing for an inquiry by the Sentence Administration Board. Because of power outages there was no recording of a particular inquiry. However the Board made a record of the meeting and provided a statement of its reasons for decision. Justice Refshauge of the Supreme Court of the Australian Capital Territory held that whether the decision of the Board should be set aside for non-compliance with the requirement for a sound or audiovisual record did not depend simply on non-compliance. His Honour held that the hearing had not been invalidated. Unlike in Marsh, there is no full record of the hearing in this matter.
    
33. Counsel contends that not every failure to comply with a statutory requirement affects the validity of an administrative decision; see Project Blue Sky v Australian Broadcasting Authority^[31] (“Project Blue Sky”), especially at [91] per McHugh, Gummow, Kirby and Hayne JJ. In Project Blue Sky, their Honours said at [91]:
    

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”

34. Counsel submits that there is nothing in the Act which says that a breach of s 23(2) will render a decision invalid. Can a legislative purpose to invalidate a decision arrived at where s 23(2) has been breached be disclosed? Counsel contends that compliance with s 23(2) is not “an essential preliminary” (see Project Blue Sky at [94]) to the exercise of the review function which is conferred on the Tribunal after an application for merits review by an Applicant under s 31(1). As counsel for the Republic submitted, s 23(2) regulates procedurally the exercise of the review function conferred by s 31.
    
35. A consequence of invalidity for breach of s 23(2) is that all decisions affected by the breach would be invalidated, even those by successful Applicants. Further, the smallest and most inconsequential failure to record part of a hearing would result in invalidity. Another difficulty pointed to by the Republic is that any failure with the recording equipment detected during a hearing would require that the hearing be required to restart afresh.
    
36. In Minister for Immigration v SZIZO^[32] at [34] the High Court of Australia held that in the case of certain procedural steps relevant to the legislation being examined, there was no intention that any departure from those steps would result in the invalidity “without consideration of the extent and consequences of the departure”.
    
37. Counsel for the Republic submits that, in the current case the Appellant has not shown how the failure to record the entire proceeding impacted adversely on him. The extent of the departure from the s 23(2) requirement was small, it was said, and the consequence of the departure is that the Appellant may have lost an opportunity to discern error in the Tribunal’s reasons. Such an opportunity was contended to be entirely speculative. In addition, the Appellant has not referred to any comment or evidence that he asserts has not been recorded, so the argument runs.
    
38. Counsel for the Appellant submits that the purpose of s 23(2) is to enable the Tribunal to have a precise and accurate record of the review hearing. It also assists a review Applicant to determine if there was any error of law by the Tribunal. Counsel contends that the Republic’s reliance on Project Blue Sky is misplaced because that case is one concerning jurisdictional error. Here, counsel observes, the question is not whether there was jurisdictional error but an error of law; see Wingfoot Australia Partners Pty Ltd v Kocak^[33] at [28] to [29].
    
39. In COA 025 v The Republic,^[34] Khan J held that a breach of s 23(1) of the Act involved an error of law. In that case at [59], his Honour held that the Appellant’s husband’s presence in her hearing caused her unfairness and disadvantaged her position. At [60], his Honour found that the Tribunal “committed an error of law by taking it upon itself to combine the hearings”. For that reason, amongst others, his Honour quashed the decision of the Tribunal and remitted the Appellant’s application for review.
    
40. The breach of s 23(2) by the Tribunal has given rise to an appealable point of law. As was said in DWN 113 v The Republic^[35] at [34], such an error may arise “if the Tribunal fails to comply with the requirements of the Act” in connection with the making of a decision under s 34.
    
41. The Appellant can never know what aspects of his evidence, submissions and claims were not recorded. The Tribunal did not have the benefit of the evidence that was not recorded in coming to its decision. There is no evidence that even the incomplete hearing notes were relied on by the Tribunal in addition to the transcript of the recording in coming to its decision.
    
42. Counsel for the Appellant submits that a purpose of s 23(2) is to promote fairness in decision making and an aspect of the Tribunal’s requirement to accord procedural fairness. There is much force in their submission. Section 23(2) may be seen as an adjunct to s 22(b) which provides that the Tribunal “must act according to the principles of natural justice and the substantial merits of the case”.
    
43. Having found that the Tribunal made an error of law in breaching s 23(2) of the Act, the question arises as to whether relief should be granted and the matter remitted to a differently constituted Tribunal. I consider it is appropriate for such an order to be made. It cannot be known whether the breach of s 23(2) could not have made a difference to the outcome of the application. No one can be sure what was omitted from the recording and thus the transcript.
    

Failure to Consider Significant Evidence

44. Ground 2 of the Further Amended Notice of Appeal asserts that the Tribunal failed to consider significant evidence in an expert report prepared by Overseas Survivors of Torture and Trauma (“OSSTT”) and thereby made a jurisdictional error, or, in any event, an error of law.
    
45. The particulars of the ground of appeal are:
    

Particulars

1. After the Tribunal hearing, the appellant provided to the Tribunal an expert report prepared by OSSTT. The report indicated, inter alia, that:
   1. “[The applicant] presented with restricted affect, forgetfulness, broken sentences and incoherent thought processes. He appeared to constantly misunderstand the questions being asked of him and seemed either unable to recall information or offered irrelevant information. He did not follow a coherent timeline when narrating events, often jumping between different periods. The counsellor was required to repeat or paraphase information constantly and eventually introduced interactive writing/drawing as a tool to assist [the applicant] to contain his thoughts and minimize his confusion”.
   2. “[T]he physiological symptoms disclosed by [the applicant] during the course of his three counselling sessions with OSSTT are consistent with symptoms of post-traumatic stress (hyper-arousal, dissociation, and intrusion) and likely to be linked to the torture and trauma history he describes”.
   3. “[The applicant’s] inability to organize his thoughts in a manner which enables him to quickly understand what information is being sought, or provide clear and relevant responses and consistent timeframes for events in his past are difficulties commonly observed in survivors of torture and trauma, particularly during stressful periods and when being asked to recall traumatic memories.”
2. The Tribunal’s reasons do not refer to the report, or to the matters addressed by the report. An inference arises that the Tribunal did not consider the report. The inference that in the absence of any reference to the OSSTT report suggests that it was not considered is strengthened by the fact that the same Tribunal (i.e., constituted by the same members) on the same day gave reasons for affirming the Secretary’s decision in relation to the Wife, and in those reasons did refer to and consider a separate OSSTT expert report provided in relation to the Wife.

100. The information in the OSSTT report in relation to the appellant was significant, including because it might (if considered) have had a bearing on the Tribunal’s assessment of the applicant’s credibility. The Tribunal formed an adverse view of the appellant’s credibility, including on the basis that he had given inconsistent evidence.
     

46. The Tribunal’s decision does not refer to the OSSTT report. However, counsel for the Republic submits that the Tribunal took into account matters referred to in the report when assessing the Appellant’s claims. At [14] of its reasons for decision the Tribunal said:
    

“The applicant told the Tribunal that he is stressed and illiterate, unable to read a map, has difficulties with chronology and may think he is answering the question but is answering a different question. The Tribunal has had regard to this information both in relation to the conduct of the hearing and its assessment of the applicant’s evidence. The applicant also stated that Tamils use the word torture to describe slaps and even harsh words”.

In this passage the Tribunal is referring to the issues raised by the Appellant in the hearing. Counsel for the Republic contends the failure of the Tribunal to expressly refer to the OSSTT report was not material because the report was directed to the matters discussed at [14] in the Tribunal’s reasons. The Tribunal could have referred to the report in support of its views at [14] but its failure to do so did not result in important material being ignored.

47. The Tribunal formed an adverse view about the Appellant’s credibility on the basis that he had given inconsistent evidence on two occasions. Counsel for the Appellant submits that in order to form those views the Tribunal must have ignored the matters raised in the OSSTT report. Those two occasions are at [36] and [63] of the Tribunal’s reasons.
    
48. At [36], the Tribunal refers to evidence given by the Appellant which was not mentioned in his earlier evidence, thereby throwing doubt on its credibility. At [63], the Tribunal referred to the Appellant having given some inconsistent and implausible evidence “both of which impact on the credibility of his claims”.
    
49. The relevant parts of the OSSTT report refer to the Appellant’s propensity for confusion and difficulty in providing consistent timeframes for events. These are matters touched on by the Tribunal at [14], but go beyond those matters. The issue raised at [36] is extraneous to those matters. The issue raised as [63] not only dealt with inconsistent but implausible evidence in assessing credibility.
    
50. Counsel for the Appellant observes that the report was mentioned in the decision concerning the Appellant’s wife by the same Tribunal, given that the matters were heard together. Counsel contends that this shows the report was not taken into account in the Appellant’s case.
    
51. The better submission is that the report was prepared after the hearing of the Appellant’s review application but before the decision. The matters raised at [14] of the decision can only be directed to what the Appellant told the Tribunal and not to any matter in the report. The Tribunal may well have formed a different view about the Appellant’s credibility and inconsistencies in his evidence had it taken into account the report. The Tribunal relied on such findings and others, cumulatively, to reject the Appellant’s application; see ARG15 v Minister for Immigration and Border Protection^[36] at [74].
    
52. For the foregoing reasons the Appellant should also succeed on ground 2.
    

ORDERS

53. The Court will make the following orders:
    
    1. The matter is remitted to the Tribunal for reconsideration.
    2. The Court directs that the Tribunal be reconstituted for the purpose of the reconsideration of the application for review.
    3. The decision of the Tribunal is quashed.
       

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^[1]1951 Refugee Convention and 1967 Protocol, also referred to as “the Refugees Convention” or “the Convention”.
^[2] Book of Documents (“BD “) 155-156.
^[3] Ibid 164.
^[4] Ibid 165.
^[5] Ibid 158.
^[6] Ibid 159.
^[7] Ibid.
^[8] Ibid 162.
^[9] Ibid 163.
^[10] Ibid.
^[11] Ibid 164.
^[12] Ibid 167.
^[13] Ibid 168.
^[14] Ibid 170.
^[15] Ibid 171.
^[16] Ibid 524 at [20].
^[17] Ibid 527 at [33].
^[18] Ibid 530 at [48].
^[19] Ibid at [51].
^[20] Ibid 533 at [66].
^[21] Ibid 534 at [64]; BD 533 at [68].
^[22] Ibid 534 at [67].
^[23] Ibid 535 at [76].
^[24] Ibid at [78].
^[25] Ibid 537-538 at [87].
^[26] Ibid 540 at [95].
^[27] Ibid 541 at [100].
^[28] Ibid 542 at [105].
^[29] Ibid 543 at [110].
^[30] (2014) 288 FLR 116.
^[31] (1998) 194 CLR 355.
^[32] (2009) 238 CLR 627.
^[33] (2013) 252 CLR 248.
^[34] [2017] NRSC 104.
^[35] [2016] NRSC 28.
^[36] [2016] FCAFC 174.