FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal – whether Tribunal correctly applied the “real chance” test – whether Tribunal failed to “review” the applicant’s case in that it failed to consider the entirety of her claims – whether Tribunal failed to set out its findings on material questions of fact – Tribunal member represented to applicant that he would give her an opportunity to respond to any adverse concern he had about her evidence – no indication given at hearing – subsequent adverse findings made – discussion of requirement by Migration Act for procedural fairness – error of law under s 476(1)(a) – issue of credibility – adverse inference drawn about applicant’s credibility – subsequent adverse finding made – no evidence to support adverse finding – duty to enquire or permit applicant an opportunity to respond

Migration Act 1958 (Cth), ss 476, 414, 420(2)(b), 430

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, considered

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, referred to

Ayoub v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Tamberlin J, 20 August 1998), referred to

Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284, referred to

Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Nicholson J, 23 November 1995), referred to

Minister for Immigration and Multicultural Affairs v Djalal (unreported, Federal Court of Australia, Full Court, 10 December 1998), distinguished

CHO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 441 of 1998

MADGWICK J

SYDNEY

22 DECEMBER 1998

SHORT MINUTES OF ORDER

THE COURT ORDERS THAT:

1.                  The matter be remitted to the Tribunal for determination according to law.

2.                  The respondent is to pay the applicant’s costs.

REASONS FOR JUDGMENT

HIS HONOUR: This is an application for review of a decision of the Refugee Review Tribunal, constituted by Mr Keher, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.  The question was whether the applicant was a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, namely ss 5(1) and 36(2) of the Migration Act 1958 (Cth) (“the Act").  A refugee is defined as a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The applicant, an ethnic Chinese, has a form of Burmese citizenship and was treated, without complaint, by the Tribunal as having Burmese nationality.  The claim pursued in the Court, and the main claim before the Tribunal, was that she is outside Burma, her country of nationality, owing to well-founded fear of persecution for reasons of political opinion and, owing to such fear, is unwilling to avail herself of the Burmese government’s protection.

Background

The applicant’s account of matters was that, after 11 years' schooling, she attended Rangoon University in 1987.  In March 1988 she attended a mass anti-government rally of students and they marched on the Rangoon Institute of Technology.  With others, she shouted slogans.  The police moved in and she was arrested and beaten.  After fainting, she was questioned and tortured.  She was kept in custody for a month and then dumped by her captors outside her home in a wounded condition and blindfolded.  Her mother had believed her dead.

In July 1988, she renewed her protest activities, joining in demonstrations in which many Burmese people took part.   On occasions she would speak from the stage of her maltreatment during her earlier detention.  On 9 August 1988 she was again arrested by soldiers.  She was beaten and again tortured and wounded.  After perhaps 10 days, kicked unconscious, she woke in hospital.  She had been found by a lake, covered in blood.  She was in hospital for two months.  When she returned home, police and army officers came and seized her hospital discharge records and some political pamphlets that she had.  Her parents were warned to control her and required to sign an undertaking to do so.  She was required to report to a police station once a month.  It took her some time to recover – "after two months I was able to speak a little".  Not surprisingly, she said she felt bitter at this treatment and wanted revenge. 

The university was closed until 1991.  She remained at home and was subjected to intrusive official surveillance.  When the university was reopened, the applicant was required to request official permission to attend and, in due course, to promise not to take part in political activities.  Nevertheless on anniversaries of significance to the anti-government forces, she would, and would attempt to organise other students to, make a modest protest – for example by wearing black clothes to remember a murdered student leader.  She completed her degree (majoring in geography) in August 1993. 

She was then advised by her relatives to leave, as there was no future for her in Burma.  She claimed that she would be unable to find employment because of her political record and that she was in constant fear of arrest.  She decided to leave.  The applicant bribed her way to citizenship status as a "registered national citizen" and to possession of a passport.  She obtained a visa to Australia in December 1995, on what she claims were false documents, and arrived here on 8 January 1996.

In Australia she participated in public demonstrations against the Burmese government in May, June and August 1996 and in January 1997.  Two of these were at the Burmese Embassy.  Over this period she also attended functions, organised by a group called the Committee  for a Democratic Burma.

The applicant applied for a protection visa on 7 June 1996.  A delegate of the Minister considered her application and advised the applicant on 18 March 1997 that she was not considered to be a person to whom Australia had protection obligations under the Convention.  The applicant sought a review of that decision by the Tribunal.

Application of the “real chance” test

The Tribunal considered and accepted the applicant’s claims regarding the nature and extent of her political activism in Australia against the Burmese government.  However, the Tribunal found that the substance of her evidence:

“indicates she is an ordinary member of a group and has mainly been involved in minor activities (attending demonstrations, cooking) which would indicate that she is a low level member and not a leader or person of high profile.  The Tribunal accepts that the Burmese authorities are likely to be interested in some people in Australia who are involved in pro-democracy movements but considers that this would be confined, as detailed in the independent country information, to people who are prominent leaders and repeatedly at the forefront of activity.  It would depend on the degree of activity.  The Tribunal does not consider that the applicant falls within such category, and finds that there is no real chance that the applicant would be of adverse interest to the authorities in Burma.”

The applicant submits that the Tribunal applied the test of whether the applicant faced a real chance of being of “adverse interest” to the authorities in Burma.  This imposed too high a standard on the applicant, because, it was argued, the Tribunal member considered that only high-profile activists, who would be of “adverse interest” to the Burmese authorities, could face persecution.

If the Tribunal had considered that only prominent or high-profile activists could be persecuted because only they could be of some interest to the authorities, that might perhaps have been an incorrect application of the “real chance” test described by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  However, it seems to me that that is not what the Tribunal was saying.  The Tribunal’s finding was, as I have indicated, in the context of considering whether the applicant’s activities in Australia would make her a target for persecution by the Burmese authorities if she were to return.  I am satisfied that there was evidence before the Tribunal to support its conclusion: for example, a report from the Department of Foreign Affairs and Trade (February 1998), to which the Tribunal referred, stated:

“While normal members of the community in Australia protesting outside the Burmese Embassy on 2 or 3 occasions would most likely come to the attention of the authorities there is no evidence to suggest they would face adverse consequences unless they continued to commit further anti-government activities within the country on their return.” 

The Tribunal’s reference to the applicant not being of “adverse interest” was, in my opinion, merely a euphemism for being potentially open to persecution.  The Court should not be overly “concerned with looseness in the language ... nor the unhappy phrasing” of the reasons of an administrative decision-maker: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.  As Kirby J said in  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291, “[i]t is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”  In forming a view about the likelihood of persecution, it was open to the Tribunal, on the available evidence, to consider whether her activities here were of such magnitude or intensity such that she was likely to have the active attention of the Burmese authorities if she returned to Burma.  That, indeed, was a relevant consideration to take into account.  The Tribunal took the view that her activities here were not of such a character.  There was no error of law.

Alleged failure to consider entire claim: s 414

Section 414 of the Act requires the Tribunal to “review” a decision to refuse to grant a protection visa on the making of a valid application for review.  The applicant submits that the Tribunal failed to properly “review” her case, by failing to make findings on all relevant matters raised in her application.  In particular, the applicant submits that her claim for refugee status was put on the following bases: (1) she had already been the subject of arrest and torture for her activities in 1988; (2) she was likely to be the subject of persecution because of her pro-democracy activities in Australia; (3) she would continue to oppose the Burmese government; and (4) she would be unable to express her political views if she returned to Burma.  However, the Tribunal made no finding in relation to the applicant’s claim that she wished to continue to oppose the Burmese government in Burma, what activities she would pursue in Burma if she returned, or the risks of persecution which she would face as a result.  The Tribunal’s failure to consider these aspects of the applicant’s claim, it is argued, constituted a “constructive failure by the Tribunal to exercise its jurisdiction” (see Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 581) and thus was an error of law under s 476(1)(e).

The respondent’s position is that, contrary to the applicant’s submission, the applicant gave no evidence before the Tribunal regarding any fear she might have of persecution if she returned to Burma and resumed political activities against the government.  The applicant’s case, it was argued, was based on her claims of involvement in the 1988 demonstrations and her activities while in Australia; the Tribunal dealt with these claims and, as the matter was not raised or argued by the applicant, was not required to deal with the prospect of possible future harm if the applicant continued to oppose the Burmese government.

It appears that the only material which suggests that the applicant might wish to continue overt opposition to the Burmese government if she were to return was a passage in the applicant’s representative’s written submission to the Tribunal.  In that submission, it was stated:

“Given [the applicant’s] political opinions, her previous persecution, the level of human rights abuses occurring in Burma and the degree of interference and monitoring of citizens by the Burmese authorities, there is clearly a real chance that the applicant would face further persecution in the future if she returned there.  Further, the applicant will not be able to express her political opinions if returned to Burma which amounts to denial of a fundamental human right.  If she was to do so she would face a real chance of persecution.”

While it is clear enough that her earlier activities and punishment for them and her opinions as currently expressed in Australia were the matters primarily asserted as the reasons why she would have a well-founded fear of persecution, she was indeed asserting something else.  This was not, however, that she was likely to wish to assert her political opinions in Burma, but simply that, if she chose to do so, such choice, alone or considered with her background, would cause her to face a real chance of persecution, in “denial of a fundamental human right”.  The Tribunal, rightly or wrongly, took the view that, if her background was as she said, it was not such as to be likely to bring down the might of the authorities upon her.  Upon such a conclusion, it was not necessary to negative the speculations that (a) there might be some future possible expression, by unspecified means, of her political views in Burma, (b) this might cause some action by the State against her and (c) that this might be sufficiently serious as to amount to persecution.  The real basis of the Tribunal’s reasoning can readily enough be discerned.  It is not every logically possible speculation, however faintly raised, that requires a reasoned rejection.

Alleged failure to set out findings on material questions of fact: s 430

The same point was argued in another way.  It was said that, by not making any finding in relation to (1) what political activities she would be expected to pursue in Burma if returned; (2) the risks of persecution as a result of those activities; and (3) whether, combined with her previous and current activities, that would constitute a real chance of persecution, the Tribunal had failed to comply with a requirement set out in s 430, namely, to set out the findings on material questions of fact.  Having regard to the way in which the case was put to the Tribunal, I consider that this way of expressing the challenge must also fail.

While s 430 requires the statement of “the findings on any material questions of fact”, that does not mean that a finding as to every fact into which relevance can be teased is required.  The word “material” is used in s 430, in my opinion, in the following senses given by the Macquarie Dictionary:  “of substantial import, of much consequence”, and “(Law) of evidence, etc. likely to influence the determination of a cause”.  It is substantially important questions of fact, those which in a real sense might influence the determination, as to which findings are required.  There is no warrant to construe s 430 as requiring more of the Tribunal than is required of a judicial decision-maker.  In the case of the latter, the requirement to give reasons which sufficiently expose the judge’s reasoning process does not extend beyond explaining the “critical or crucial” reasoning on factual questions:  see, for example, Fry v McGufficke (Federal Court of Australia, Full Court, 26 November 1998).

The course of the hearing before the Tribunal

The applicant was advised by the Tribunal that it could not make a finding in her favour “on the papers” (see s 424), and that she was entitled to give further oral evidence before the Tribunal.  A hearing was held on 10 December 1997.  At the beginning of the hearing, the Tribunal member explained the nature of the proceedings and said to the applicant:

“If I have anything which is adverse to anything which you say, or which causes me some concern, I will tell you about it, and give you an opportunity to respond to it.” 

The Tribunal member asked the applicant a number of questions concerning her claims of arrest and torture; her hospitalisation and injuries; her attendance at university after the demonstrations; and the accuracy of the documents which she had claimed to be false.  It appears from the transcript of the hearing that, generally speaking, the Tribunal member did not indicate to the applicant that he had any concern about the acceptability of the answers which she provided to the member’s questions.

Counsel for the applicant submitted that, since the Tribunal member had not done this, she was then entitled to assume that her evidence had been accepted as true.  However, the Tribunal later made a number of adverse findings as to that evidence.  The Tribunal considered in some detailthe incidents in 1988 and reports concerning the continuing occurrences of human rights abuses in Burma.  The Tribunal found that the applicant’s claims had been consistent, but that she had exaggerated her history and had not been truthful, particularly in relation to her claims of political activism during 1988.  In particular, the Tribunal continued:

“The Tribunal also considers that such evidence indicates that the applicant’s claims of torture and imprisonment are not plausible.  In particular the evidence indicates that the applicant was a mere participant.  Her subsequent history (education, work and ability to leave the country) does not support a finding of a high profile person or one who was tortured and interrogated.”

The Tribunal also did not accept the applicant’s claims that the documents she produced to the Australian Embassy to obtain a visa were false.  The Tribunal stated:

“The applicant claims that all of these documents are false and states that they were doctored by a cousin ‘to make her look older’.  These documents indicate that the applicant is married (in March 1993), and that with her husband she has a drapery business, two shops and an apartment, and paid substantial amounts of money in tax in 1993, 1994 and 1995.  The detail is very elaborate.  The Tribunal is aware that documents, histories and visa applications can be fraudulently obtained and forged in Burma.  There may be a variety of reasons for this.  This does not mean however that every document is forged or that every claim of such should be accepted.  I have carefully considered the applicant’s claim concerning the documents being false and do not accept it as true.  I find that the documents submitted to the Embassy are true.  I find that the applicant is married and has business interests in Burma.”

It was argued that the Tribunal had misrepresented the approach that it would take to the applicant’s case, and that this constituted a breach of the “procedures” (cf s 476(1)(a)) held in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 to be required by s 420(2)(b) of the Act (namely, that in reviewing a decision, the Tribunal did not act “according to substantial justice and the merits of the case”).

It does not appear, on the face of the transcript, that the questions the Tribunal member asked indicated that he took an adverse view of the applicant’s credibility (a matter which became critical to the Tribunal’s findings).  It was argued for the Minister that one must have regard to the context in which the Tribunal member made his representation to the applicant.  The applicant had been made aware that there had been an adverse decision made by the Minister’s delegate after considering the evidence that she had already presented.  She had been informed by the Tribunal that it was unable to make a finding in her favour “on the papers” (s 424).  It was therefore reasonable to expect the applicant to assume that any issue which the Tribunal member did raise with her was one which did cause him some concern.  In the circumstances, the applicant could be assumed to have known that this was her last chance to put her best foot forward, and this she would have done.  She would accordingly not have assumed, or if she had it was not a reasonable assumption, that everything she said would be accepted by the Tribunal member unless he expressly doubted her evidence.  Indeed, it would be unusual for any Tribunal member to express disbelief of an applicant’s evidence to his or her face. 

Such a response is, in my opinion, artificial and unduly narrow and can be answered both by reliance on Eshetu and in ways which do not depend on the correctness of that decision.

It appears to me that the Act, in its present form, was intended, among other things, to substitute for the well-developed, but still developing (see, for example, Kioa v West (1985) 159 CLR 550; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408) common law principles of procedural fairness and its rubric “natural justice”, s 476(2), a more static conception of what may be called statutorily prescribed procedural fairness and substantive justice.  It is hardly to be thought that the Australian Parliament would abandon entirely an attempt to provide for fair treatment of persons claiming to be refugees.  It is indeed manifest that Parliament did not so intend.  Division 3 of Part 2 of the Act deals with “Visas for non-citizens”.  Subdivision AB thereof is headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications” (emphasis added).  The Refugee Review Tribunal is adjured, at least as a matter of aspiration, “to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” and to “act according to substantial justice and the merits of the case” (s 420).  Indeed, the very provision by the Act of a “review” (s 414) of the Minister’s (or his/her delegate’s) decision by a Tribunal set up to be independent (ss 459, 461, 462, 467, 468, 421, 430, 431, 434, 435), with broad powers (ss 415, 425, 427, 428) and required to give reasons (s 430) betokens, among other things, a statutory concern with fairness.

Relevantly to the present problem, there is an express concern, even at the stage of primary decision-making, for fairness and for arrival at the right result.  Section 57 requires that, in general, particulars of information specifically about an applicant and which “would be the reason, or a part of the reason” for refusing to grant a visa, must be given to the applicant.  Further, the Minister must “ensure, as far as is reasonably practicable, that the applicant understands why it is relevant” and must invite the applicant to comment on it.  It is a primary decision which ought to have been so constrained and informed which is the subject of “review” by the Tribunal (s 414).  In this context, the ordinary meaning of the noun “review” is a careful re-examination of a decision having legal consequences with a view to improving or amending it, if need be – see the Shorter Oxford English Dictionary definitions of “review” and “revision”.  The Tribunal is given power to “exercise all the powers and discretions” conferred by the Act on the primary decision-maker:  s 415(1).  As the legislative imposition of a duty to do something implies the conferral of a power to do it, s 415 would empower the Tribunal to exercise the Minister’s powers under s 57.

The question arises however whether in any, and if so what, circumstances the exercise of the powers conferred by ss 57 and 415 is required.  While some of the provisions of Part 7 (“Review of Protection Visa Decisions”) draw evident distinctions between mandatory requirements and quite discretionary ones, e.g. s 425, some do not, e.g. ss 417(1), 424(1), 427(7).  It follows that the use of the term “may” in s 415, which empowers the Tribunal to exercise the primary decision-maker’s powers, does not necessarily preclude the view that the Act implicitly requires that in certain circumstances those powers be exercised. 

Likewise, the absence of an express requirement to that effect does not mean that there is no such requirement.  There is express emphasis in the Act on the accomplishment of fairness.  As well, the Act clearly demonstrates an implicit concern as to efficacy of decision-making, that is, that the right decision be made.  It is plainly consonant with these purposes of the Act that it be interpreted as requiring the exercise of such powers when, but only when, a serious risk of substantial unfairness or of a wrong decision being made would exist if the power in question were not exercised.  More broadly, it would be a surprising conclusion if the independent review body, armed with broad powers, needed to go a lesser distance in the pursuit of fairness and the right decision than the primary decision-maker, when a serious risk of injustice or error existed.  It is to be noted that I do not suggest that in every case, as of course, the substance of the s 57 powers is required to be exercised, but only when one of the serious risks I have identified can be demonstrated.  No doubt it is perfectly reasonable, to guard against any possible unfairness or error, to require in every case, whether or not unfairness or error might actually be at stake, that the primary decision-maker fulfil the requirements of s 57.  It does not appear to be reasonable to require that of the Tribunal unless the main purposes of the review, namely arriving at the right decision and fair treatment of applicants, are demonstrably threatened.

Thus, the absence of an express requirement that in some circumstances the Tribunal exercise the same powers as the primary decision-maker when it is important to do so, is better explained by imputing to Parliament the assumption that the Tribunal would be so bound as of course than by an application of the espressio unius principle tending to a result apt to produce injustice and errors in individual cases (c.f. Asrat v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, O’Loughlin J, 23 August 1996) in which O’Loughlin J was apparently impressed by espressio unius considerations; he did, however, reach a similar conclusion to mine but based on a reading of s 420 of the kind expressed in Eshetu).

In this case it is plain that there was a serious risk of substantial unfairness, of a kind sought to be avoided by the statute, constituted by the Tribunal’s failure to inform the applicant that her claims to have been tortured and imprisoned and to have forged her documentation of her background were seriously doubted, and why.  It is also plain that the rejection of such important claims, without giving the applicant the opportunity to produce such corroborative evidence as she may have been able to obtain, carried with it a serious risk that a wrong decision, sought to be avoided by the statute, would be reached on outcome of her claims.  Further, although the Tribunal member would not, of course, have intended it to be so, his opening remarks compounded these risks:  as a matter of ordinary experience, the applicant is likely to have been lulled into a belief that her factual claims were not in serious doubt.  In such circumstances the Tribunal member was obliged to give the applicant a chance to answer his doubts.

For these reasons, it seems to me that the Tribunal member erred in a way that has reviewable consequences, in not directly raising his evident concerns with the applicant (see also Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 549 per Wilcox J).  There was a failure to observe a procedure implicitly required by the Act:  s 476(1)(a).

Credibility issues and drawing of available inferences

The Tribunal considered independent evidence from the Department of Foreign Affairs and Trade which suggested that while “some of the higher profile activists have found it difficult to obtain higher education and employment in government service”, this did not apply to all protesters who participated in the 1988 demonstrations. The Tribunal noted that the applicant had been able to complete her tertiary studies after the demonstrations.  Further evidence suggested that after the 1988 demonstrations, “many people were interrogated and presumably are on file with the intelligence agencies, but this has rarely been the basis for further harassment unless the person continues to participate in anti-government activities”, and that “if a person was in Burma for 15 months after the demonstrations it is unlikely that the authorities have any interest in them over their participation in the demonstrations”.  The Tribunal concluded that it was unlikely the applicant had any particular profile as an activist, and that accordinglyshe would be of “no further adverse concern” to the authorities in Burma.

The applicant does not dispute that these particular findings were open to the Tribunal.  However, the applicant submits that the Tribunal drew other inferences from this evidence which were not legally open to it, and which went to the heart of her credibility generally notably the conclusion that the applicant’s claims of torture and imprisonment were “not plausible”.  The Minister points out that the “critical” finding by the Tribunal was that the applicant was not of adverse interest to the authorities now for any 1988 political involvement.  The Minister says that the applicant’s concern that that finding was open to the Tribunal is really the end of the matter.

But, as indicated above, the Tribunal also rejected the applicant’s claims that the documents she had presented to the Australian embassy to obtain her visa to enter this country were false.  The only basis for this rejection was that “the detail is very elaborate”, but one might have thought that there was little point in essaying a deception unless some effort was made to make it look credible.  The Tribunal went on to express the view that because the applicant had been able to obtain a passport, in view of the difficult government-imposed requirements which had to be met, she was not a person of “adverse interest” to the relevant authorities in Burma. 

The Tribunal also found that while the applicant had suffered discrimination because of her Chinese ethnicity, she had been able to pursue normal activities in life and thus had not been subject to persecution.

In relation to the Tribunal’s finding that the applicant’s claims of torture and imprisonment were “not plausible”, the applicant submits that the evidence relied upon by the Tribunal does not permit such an inference to be made.  While the evidence suggested that “some of the high profile activists have found it difficult to obtain higher education and employment in government service”, (1) the applicant did not claim to be of high profile, (2) not all activists found it impossible to gain entry to tertiary study or employment; and (3) although the applicant was not of high profile, it does not follow that she was not subject to torture or imprisonment. 

It is apparent that the Tribunal’s rejection of the applicant’s evidence in respect of these issues was both based on the view that she was not a credible or reliable witness and became another basis for an unfavourable view of her credibility.  Issues of credibility are of course, because of the nature of the proceedings, likely to arise in many applications brought before the Tribunal.  Indeed, in many cases it is expected, understandably, that an applicant may embellish his or her claims in hope of improving their chance of being accorded refugee status, and it is for the Tribunal member to come to a view of such matters: see Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151.  As Nicholson J observed in Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 23 November 1995):

“It is not the case … that the evidence of the applicant should have been believed by the Tribunal unless specifically disapproved by the objective evidence before the Tribunal.  Rather it was for the Tribunal to decide the facts it found on a consideration of all the evidence, subjective and objective.  This requires the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”

(See also Sivalingam v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Goldberg J, 5 March 1998); Navaratne v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Tamberlin J, 1 August 1997)) 

Nevertheless, it is not open, as a matter of law, to the Tribunal utterly to reject evidence given by an applicant on oath, without the existence of some evidentiary material or other factor which could furnish a rational basis for so doing.  The proposition just stated is but a particular application of the more general point that, if the Tribunal draws an adverse inference about the applicant’s credibility where, on any rational view, that inference was not open to it, that may constitute a ground for review under one or more of the paragraphs of s 476(1).  As Tamberlin J pointed out in Ayoub v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, 20 August 1998), “it is not the role of the Court to adjudicate on the merits of the factual findings made by the [Tribunal], including findings in respect of an applicant’s credibility, unless it can be demonstrated that any finding in question was not open on the evidence to the person or body charged with that task”.  In Sun Zhan Qui at 550, in considering s 476(1)(e) Wilcox J stated:

“The facts are for the tribunal to determine but they must be determined with a proper appreciation of the legal principles governing decisions under the Act.  The relevant distinction may easily be understood if one considers the role of judge and jury in a jury trial.  The facts are for the jury to determine.  But it is for the judge to determine, as a matter of law, what evidence may be admitted at the trial and what inferences are open to be drawn from that evidence.  I mention as an illustration Jones v Dunkel (1959) 101 CLR 298, the leading case on the inference that may arise from a party’s failure to give evidence of facts within that party’s knowledge.  The High Court set aside a jury verdict for the defendant on the ground the direction given by the trial judge was incomplete; he should have instructed the jury as to the inference available to be drawn.  Although the facts were for the jury to determine, and the High Court sent the case back for retrial by a jury, the trial had miscarried because of the trial judge’s misdirection as to the available inferences.

Similarly, although the facts are for the Refugee Review Tribunal, a decision may be vitiated by a misconception by the tribunal member of the available inferences.” 

In the same case Burchett and North JJ also held that the Court may review a case where the Tribunal drew adverse inferences that could not be sustained from the evidence on the basis that those circumstances could indicate the existence of actual bias, a ground for review under s 476(1)(f).  It was not suggested, and I do not consider, that the Tribunal exhibited actual bias in this instance.  However, it suffices to say that the Full Court made it clear that where the Tribunal makes an adverse finding about an applicant’s credibility, based on evidence which, upon analysis, cannot rationally support that finding, the decision may be subject to judicial review. 

I referred to the necessity for “some evidentiary material or other factor” to ground a rejection of a person’s evidence.  Such may be constituted by many things:  common examples are the evident intrinsic incredibility of a story; identifiable aspects of demeanour of witnesses (although most judges, when themselves sitting as fact-finders, now deprecate a resort to this in all but the clearest, and therefore uncommonly occurring cases); and conflict with other identified evidence as to which there is a rationally possible basis for its being preferred.

If the Tribunal’s suspicion about the truth of the applicant’s claims is to be used as a basis to reject a claim for refugee status, without reference to independent evidence (or other factors of the kinds of which I have given examples) which may have a rationally possible tendency to contradict or raise some doubt as to the veracity of those claims, the Tribunal must ordinarily give the applicant a reasonable opportunity to respond to, and in some cases must itself make such further inquiries regarding that claim as the Tribunal might deem to be appropriate in the circumstances.  The analysis offered above of the circumstances in which there is an implicit requirement in the Act that the Tribunal use the powers that accrue to it from s 57 and s 415 applies also, in my opinion, to the Tribunal’s powers to enquire further.  The nature of the Tribunal’s duty or power to initiate its own inquiries was discussed by the Full Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 288-291; it is sufficient to say that there are circumstances in which the Tribunal’s obligation to act according to substantial justice under s 420(2)(b) requires it to make such inquiries.  Although it is recognised that such cases will be rare, they are perhaps more likely to arise where the applicant’s credibility is the only factor in making a particular finding adverse to the applicant, and where doubted aspects of the claims are capable of being substantiated or refuted by further, reasonable inquiry by the Tribunal.

The line between giving due weight to a Tribunal member’s assessment of an applicant’s credibility, and recognising cases where the Tribunal’s reliance on that assessment may cause the Tribunal member to fall into legal error may sometimes be a fine one.  However, in my opinion, the circumstances here were such that before the Tribunal member was entitled to reject the applicant’s claims that her documents were false, the Tribunal was required to make its view clear to the applicant and give her a reasonable opportunity to substantiate her claims.  Depending on what, if anything, the applicant was able to add, it may also have been a case where further inquiry as to matters affecting a conclusion about the authenticity of the documents submitted by the applicant was required.  Unlike the situation in Singh, the applicant gave detailed evidence of the source of the falsity of the documents and no real reason was given for concluding that the documents were authentic: that the documents may have been very elaborate does not, without more, make it inherently improbable that they were false.  There was no other evidence or circumstance from which the Tribunal had a basis for rejecting the applicant’s claims about the documents.  The applicant may have been able to prove, from her own resources, or to suggest ways to the Tribunal to establish, that enough of the information asserted in the challenged documents was untrue to enable comfortable satisfaction that her documents were, as she says, forgeries.  Even under the odious regime prevailing in Ragoon, Australian Embassy officers must have been able, if requested, to check some of the information in the documents in question or which might further have been supplied by the applicant.

Although this issue was not itself central to the applicant’s case, the Tribunal member did treat it as an important consideration in assessing the applicant’s credibility in relation to her other and more crucial claims, and it can hardly fail to have affected his consideration of the matter generally.

This view is not, in my opinion, inconsistent with the recent Full Court decision in Minister for Immigration and Multicultural Affairs v Djalal (unreported, Federal Court of Australia, Moore, Mansfield and Emmett JJ, 10 December 1998).  In that case, the Tribunal had rejected the applicant’s claim that a warrant and been issued for his arrest by the authorities on the basis of adverse findings as to the applicant’s credibility.  The Full Court held that, in the peculiar circumstances of the case at hand, if the Tribunal rejected the applicant’s assertions as to the supposed warrant as having any evidentiary value on the question of persecution, the only conclusion open to the Tribunal would be that there was no arrest warrant.  However, that is not the case here.  As their Honours noted, in particular cases the Tribunal might make further enquiries if there is a dispute about the genuineness of a document sought to be relied upon by an applicant:  see also Bhiuyan v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Wilcox J, 14 October 1998).

As to the Tribunal’s finding regarding the applicant’s claims of torture and imprisonment, there was nothing in her own evidence to suggest that the applicant’s story was inconsistent.  Indeed, the Tribunal expressly found her version of events to be consistent.  Nor, in my view, could the evidence relied upon by the Tribunal have provided any rationally possible basis for an outright rejection, by way of inference, of her claims of torture and imprisonment.  Giving due weight to the obligation of the Court to take a generous approach in trying to understand and to have a proper respect for the Tribunal’s reasons, the inference which the Tribunal drew from the evidence cited in support of its finding was a crucial and, in my opinion, an impermissible one.  It simply does not and cannot follow that, because the applicant did not continue to be of interest to the Burmese authorities after the 1988 demonstrations and was able to continue with her normal life, while some “high profile” activists could not, her claims of torture and imprisonment were “not plausible”.  This legally impermissible inference went to the heart of the applicant’s credibility.  It too can hardly have failed to affect the Tribunal member’s consideration of the matter generally.  It cannot be said with any confidence that the same result must have ensued had that error not been made.  There was, therefore, an error in the application of the relevant law to the found facts which is reviewable under s 476(1)(e). 

It was also argued for the Minister that, because s 476(2)(b) provides that an application for judicial review may not be made upon the ground that the entire decision involved an exercise of power so unreasonable that no reasonable person could have so exercised the power, it follows that an irrational, merely intermediate step in the decision-making process cannot form the substance of a ground of judicial review.

In the first place, such a submission attributes an effect to subsection (2) greater than that conceded by the majority judgments in Eshetu which either bind me or which, out of comity, I should follow.  Nevertheless, as I made clear in Drekevutu v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 August 1997), I respectfully disagree with the ultimate conclusions expressed in those judgments and, as Eshetu is presently on appeal to the High Court, it seems prudent to deal with the submission on the alternative basis that the reasoning in Eshetu may not survive such scrutiny.

Section 476(2) ought not, in my view, be interpreted as manifesting a Parliamentary intention to immunise from judicial review a wholly capricious decision by the Refugee Review Tribunal.  Such a startling conclusion would be imputed to Parliament only if the words of a statute plainly and intractably required it.  Another interpretation is available.  The kinds of general considerations adverted to by Burchett J in Eshetu are relevant. There is a difference, narrow perhaps but nevertheless cogent, between the concept of a decision which is legally unauthorised because it is wholly irrational and one that is so unreasonable that no reasonable person could make it.  The first concept calls for an exercise in logic, the second involves matters of qualitative assessment.  An analogy is the difference between whether a case is rightly left to a civil jury because there is some evidence from which a rational conclusion that a fact existed can be drawn, and whether an appellate court should interfere with the jury’s decision in finding that fact.  Such appellate intervention will only occur where: 

“the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.”: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41.

Many a case will be rightly left to a jury but an appellate court will intervene because of such qualitative judgments about the whole of the evidence.  On the other hand, if there is no rational evidence of a fact, it should not be left to the jury.  As to the justification for using this as an analogy, see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155 – 156 per Glass JA.  Section 476(2)(b) is, in my opinion, aimed at preventing review by the Court for reasons of qualitative assessment even on an extremely stringent approach to such assessment.  If a judgment is logically open to the Tribunal, s 476(2)(b) prevents it being upset no matter how unreasonable, in the sense of immoderate or excessive, in the view of the Court, that judgment might be.  But s 476(2)(b) was not the grant of a legislative licence to the Tribunal to decide cases on a mere whim, or in the hyperbole of Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456, on the spin of a coin or an astrological consultation!  It is an inescapable implication from s 430(1), for example, that the Tribunal’s reasons are to have some possible logical connection with “the evidence or … other material” before the Tribunal:  it could not otherwise be sensibly said that findings of fact “were based” on such evidence or other material.  Yet that is precisely what s 430(1)(d) assumes.

Nor does the relaxation by s 420(2) of the rules of evidence, which include that only material that is logically relevant to the main facts in issue ought to be considered (see Cross on Evidence, Australian edition, Vol 1, para [1535]), diminish what I trust is the force of this reasoning.  Such a provision is not an invitation to palm tree justice:  in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256, Evatt J said:

“Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’.  Neither it is.  But this does not mean that all rules of evidence may be ignored as of no account.  After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth.  No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party.  In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’.”

If there is no licence for an ultimate abandonment of any logical connection between the material and the decision, there is no better reason to assume that the Act was intended to authorise the partial or intermediate abandonment of such connections.  It is with that concept, rather than with a merely qualitative assessment of the degree of acceptability of a judgment rationally available to the Tribunal, that I have been concerned.

Conclusions

For these reasons, the matter should be remitted to the Tribunal for consideration according to law.  The respondent is to pay the applicant’s costs.

Associate:

Dated:              22 December 1998