FEDERAL COURT OF AUSTRALIA

Migration - Application for review of decision by the Refugee Review Tribunal refusing grant of a protection visa – whether Tribunal erred in law in assessing the applicant’s credibility –whether reasoning of Tribunal was irrational – whether Tribunal should have put doubts about applicant’s evidence to him.

Migration Act 1958 (Cth), ss 36(2), 420(1), 476(1)(a), 476(1)(b), 476(1)(e), 476(1)(g).

Convention Relating to the Status of Refugees, Article 1A(2).

Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300, followed.

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, cited.

Epeabaka v Minister for Immigration and Ethnic Affairs (1997) 150 ALR 397, cited.

Kopalapillai v Minister for Immigration and Ethnic Affairs, unreported, 8 September 1998, FCA/ FC, cited.

Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited.

Navaratne v Minister for Immigration and Ethnic Affairs, unreported, 1 August 1997, Tamberlin J, cited.

Chemaly v Minister for Immigration and Ethnic Affairs, unreported, 26 October 1998, Sackville J, cited.

Singh v Minister for Immigration and Ethnic Affairs, unreported, 29 October 1998, Weinberg J, distinguished.

Kathiresan v Minister for Immigration and Ethnic Affairs, unreported, 4 March 1998, Gray J, distinguished.

Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576, followed.

Laycock v Forbes (1997) 150 ALR 186, cited.

RAJAKKANNU PANDARI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NG 745 of 1998

SACKVILLE J

SYDNEY

23 DECEMBER 1998

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The decision of the Refugee Review Tribunal, made on 23 June 1998, be affirmed.

3.                  The applicant pay the respondent’s costs.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The Proceedings

The applicant seeks review of a decision of the Refugee Review Tribunal (“RRT”), made on 23 June 1998.  The RRT affirmed a decision of the Minister’s delegate, made on 14 March 1996, not to grant the applicant a protection visa.

The applicant’s claim to the RRT, in substance, was that he had been imprisoned and ill-treated in India because of his involvement, or suspected involvement, with Dravida Kazhagam (“DK”) (a social/political movement opposed to Hindu fundamentalism and supporting self-rule in Tamil Nadu for Tamils), the Tamil Liberation Army (“TLA”) and the Liberation Tigers for Tamil Elan (“LTTE”).  The applicant said that, if he were to return to India, he would be taken into custody and killed by the Indian authorities.  Accordingly, he claimed to fear persecution for reasons of political opinion.  He also claimed to fear persecution because of his activities as a police union organiser in Tamil Nadu.

The RRT did not find the applicant to be a credible witness.  It rejected his claims as “contrived…fanciful and implausible”.  The applicant now seeks review of the RRT’s decision on two main grounds.  These are that the RRT

(i)                  failed to observe procedures required by the Migration Act 1958 (Cth) (“Migration Act”) to be observed: Migration Act, s 476(1)(a); and

(ii)                erred in law in making findings as to the applicant’s lack of credibility: Migration Act, s 476(1)(e).

The Legislation

Section 36(2) of the Migration Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (the Convention”).  Article 1A(2) defines a refugee as any person who,

“owing to 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.”

Section 420 of the Migration Act provides as follows:

“420(1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)   The Tribunal, in reviewing a decision:

(a)               is not bound by technicalities, legal forms or rules of evidence; and

(b)               must act according to substantial justice and the merits of the case.”

The grounds of review of “judicially-reviewable decisions” (including those of the RRT: s 475(1)(b)) are specified in s 476(1) and include:

“476(1)(a)       that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

                        …

(e)                that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

…

(g)              that there was no evidence or other material to justify the making of the decision.”

The Applicant’s Claims

The applicant arrived in Australia on 4 August 1995.  He is an Indian citizen, born in Sri Lanka in 1952, to Tamil Indian parents.  As a child, he returned to Tamil Nadu, India, and was educated there.

The applicant’s claims were set out in a statutory declaration made by him on 13 December 1995, the terms of which were quoted at length by the RRT.  The applicant also gave evidence at a hearing conducted by the RRT on 11 February 1998.  The transcript of that hearing was in evidence.

There were some disparities between the terms of the applicant’s statutory declaration and his account given at the RRT hearing.  In summary, however, the claims made by the applicant were these:

(i)                  From some time before 1979, the applicant was “seriously” involved with DK.  In 1979, he joined the TLA, becoming particularly active during 1982.  At about that time, he provided assistance for training camps at which LTTE members received military instruction for their activities in Sri Lanka.  He also engaged in propaganda in support of the LTTE (although he never became a member of that organisation), reflecting his abhorrence of what he considered to be atrocities committed by the Sri Lankan authorities against the Tamil people.

(ii)                The applicant was a member of the Tamil Nadu Police Force for two separate periods, namely, 12 October 1979 until August 1982, and 11 February 1988 until February 1992.  He went absent without leave in 1982 (after an initial period of medical leave) to pursue his political activities.  Despite this, the applicant rejoined the Police Force in February 1988, working as a Police Constable Grade II (the lowest grade), investigating burglaries, kidnapping and forgery.

(iii)               When the applicant rejoined the Police Force in February 1988, he changed his role from an active member of the TLA to a supporter only.  Even so, at about this time, the TLA suggested that the applicant organise a police union, as a means of becoming an informer and protecting party activists.  The applicant took up this suggestion and became the president of a union which took the name of the Police Constables Welfare Association.

(iv)              In 1989, the TLA’s leader was murdered by undercover police.  Police officers took the applicant to identify the leader’s body, but he claimed not to be able to do so.  Members of a secret intelligence group, known as “Q”, then tortured him to get him to tell the truth.  He was held for a month in custody. 

(v)                The applicant realised that the only way to stop the police officers victimising him was to strengthen the union.  At the applicant’s instigation, the union became very active, causing him to come into direct conflict with the authorities.  This in turn led senior police officers to submit false reports about the applicant and to make threats directed at him.

(vi)              On 21 May 1991, the then Indian Prime Minister, Rajiv Ghandi, was assassinated.  The applicant was again taken into custody for about one month and subjected to torture.  He was asked to inform on Sri Lankan fighters, but he declined to do so.

(vii)             In August 1991, the applicant was transferred to a series of remote places as “punishment duty”.  He was isolated and his movements were restricted for about six months.

(viii)           During this period, the police investigated the conduct of a particular well-known Tamil sympathiser and arms supplier.  According to the applicant, the police killed this person and attempted to blame the LTTE.  The applicant, along with other suspected LTTE sympathisers, was arrested and accused of involvement in the killing.  On this occasion, the applicant was held in custody in Madras for six months, during which time he was tortured and questioned.

(ix)              The applicant’s brother, who was an officer with the Central Intelligence Bureau, and knew senior police officers, attempted by a variety of means to secure the applicant’s release.  These included threats of exposing wrongdoing by the police.  Apparently in consequence of making these threats, the applicant’s brother disappeared.

(x)                In December 1992, the applicant escaped from custody.  He was able to do so because he was held in a low security compound.  He then visited his sister-in-law, who told him about his brother’s disappearance.  The applicant went into hiding, but made inquiries about his brother’s whereabouts.  During this period he moved around like a beggar, using a disguise.  His inquiries concerning his brother’s fate yielded no results.

(xi)              In April 1993, the applicant presented a petition to the personal assistant of the Home Minister in New Delhi.  For his pains, the applicant was handed over to the Tamil Nadu police and returned to Madras.  He was kept in custody for a further eighteen months and again tortured.

(xii)             In October 1994, the applicant once again escaped from police custody.  He was able to do so because his escape took place during a festival, when only one policeman was on duty.  The applicant went underground, but found his way to Bombay where he stayed in an area mainly populated by Tamils.  While in Bombay he obtained a false Singaporean passport.  He used this passport to travel by air to Perth from Bombay, via Madras.

The RRT Proceedings

A migration agent made written submissions to the RRT on the applicant’s behalf.  The first submission, dated 19 January 1998, addressed, inter alia, the question of the applicant’s nationality.  This was necessary because the applicant had travelled to Australia on a Singaporean passport and, for this reason, the Minister’s delegate had concluded that he was a citizen of Singapore.  The agent submitted that the Singaporean passport was not the applicant’s, and that the RRT should find that the applicant was an Indian national.  The submission also argued that the applicant’s claim of arrest and torture were credible and that “[m]inor inconsistencies, concealment or misrepresentations” should not be taken to impugn his overall credibility.  The submission sought to support the applicant’s claim that he had suffered imprisonment and torture because of his support for the union and because of his political views or imputed political profile.

An additional written submission was made on the applicant’s behalf on 5 February 1998.  It addressed findings made by the Minister’s delegate that were adverse to the applicant.  The submission addressed, in particular, the significance of a record of interview between the applicant and a Departmental Counter Officer conducted on 30 October 1995.  That record had been made in note form, when the applicant lodged his application for a protection visa.  The submission acknowledged that some of the applicant’s claims, as recorded by the Counter Officer, were not true.  However, the applicant maintained that the Counter Officer had not accurately recorded the claims he had made, presumably because of language difficulties.  The submission also attempted to answer some of the factual findings, adverse to the applicant,  made by the delegate.

On 11 February 1998, the RRT conducted a hearing at which the RRT Member questioned the applicant.  The applicant was accompanied by an adviser and gave evidence through an interpreter, although some questions and answers were in English.  The transcript of the hearing runs for 52 pages.

At the conclusion of the hearing, the applicant’s adviser made a brief oral submission.  In the course of that submission the adviser conceded that some of the claims made by the applicant may have been “exaggerated”, but invited to RRT to accept the substance of the applicant’s account.  The adviser sought time to provide additional documents to the RRT.  The RRT agreed to the request and further documents were ultimately provided by the applicant in support of his case.

The RRT’s Reasons

The RRT first summarised, in what might be described as the standard form, the principles governing the interpretation of the definition of “refugee” in Art 1A(2) of the Convention.  It then set out at some length the applicant’s statutory declaration and the claims made by him at the hearing.

The RRT identified certain documents supplied by the applicant in support of his case.  These included a Minute, dated 22 November 1983, stating that the applicant had been classified as a deserter since 19 August 1982; a copy of an order of proceedings before the Inspector-General of Police, dated 21 January 1988, recording that the applicant was to be reinstated, subject to a two year reduction in pay scale; and a copy of a “Charge Memo” dated 20 March 1991, indicating that the applicant had been charged with “gross neglect of duty”, for failing to obey orders.

Under the heading “Findings and Reasons”, the RRT recorded that the applicant had given his evidence “in a non-dramatic manner”.  However, the RRT also said that “much of what he claimed was implausible given the nature and context of what he has claimed”.  Even so, the RRT accepted that certain aspects of the applicant’s account were accurate.  In particular, the RRT accepted that the applicant

·        was an Indian citizen, born in Sri Lanka to Tamil Indian parents, and that he was not a citizen of Singapore;

·        had been a police officer in the Tamil Nadu police reserve for two distinct periods of time, namely, 1979 to 1982 and 1988 to 1992; and

·        had been disciplined on two occasions by the Tamil Nadu police, first for desertion and secondly for gross neglect of duty.

The RRT then addressed the question of the applicant’s credibility at some length:

“The Tribunal does not accept that the applicant was a credible witness.  Whilst he had detailed knowledge of the police and events in Tamil Nadu, the Tribunal considers that he has gained such information and exposure by the very fact of his being a police officer.  In particular the Tribunal notes:

·        the applicant claims that all of his documents were either with his sister-in-law or have been obtained by a police constable from the official District Police Office.  He could have obtained none himself as he claims to have been on the run from the police.  The Tribunal considers that it is not reasonable for the applicant to have obtained the documents which he did from those sources.  The Tribunal does not accept that his sister-in-law would just happen to have in her possession his police ID cards, birth certificates of his children, and his insurance policy.  Such are documents which would be kept by the applicant in his home.  I do not accept that they are the type of documents that a relative would just happen to have in her home, and consider such to be implausible.  The Tribunal finds that the applicant has fabricated his obtaining of such documents from his sister-in-law and that it is reasonable to conclude that the applicant had the documents in his own possession.  The documents obtained by the police constable include all of the official records of the applicant and in particular the disciplinary proceedings.  The Tribunal does not accept that a police constable would be able to access such documents and taken them from the official file.  The Tribunal considers that the most reasonable explanation of them being in the applicant’s possession is that he has always been in possession of them, as they are his copies of records of transfers, and disciplinary action.

·        the applicant claims that he escaped from police custody on two occasions.  The Tribunal finds such to be implausible given his claimed status as being an important prisoner, and his being kept in secret.  The Tribunal does not accept that such a person would be kept in a ‘remand’ centre, nor be in a gaol which had walls that the applicant could climb over.  The Tribunal notes as well that on the occasion of his second escape the applicant stated in his Statutory Declaration that he was at the time being kept in a private house in a room like a cell, at hearing before the Tribunal he stated that he escaped from Madras police station.  The Tribunal finds that he has fabricated his claims of being in prison or gaol.

·        the applicant stated that he flew out of Madras because of it being easier to fly from there than Bombay, and because his Singaporean passport enabled him to do this more easily from Madras.  He didn’t fly from Delhi as he had once been arrested there.  The Tribunal finds this to be inconceivable given that the applicant claims to be a wanted man by the Tamil Nadu authorities.  His willingness to flying [sic] through Madras airport indicates to the Tribunal that he is of no interest to the authorities there.

·        the applicant produced a document dated 22 June 1988 entitled ‘An announcement from the Association of Police Constables of Tamil Nadu’.  It cites him as being the President.  The Tribunal does not accept such as being a true document and notes that the applicant had only just returned to duty after a several years absence for desertion, and after being reinstated on appeal.  Such would have put him in a precarious position, and certainly not one in which he would found and become president of a police union and begin making demands on the police hierarchy.  In such circumstances the Tribunal considers it to be implausible that the applicant would involve himself in such an activity or be elected as president after such a significant absence from the force and in the circumstances of his regaining a position.

·        the applicant claims that the police hierarchy in Tamil Nadu (especially ‘Q’ branch) knew of his past, DK, TLA and LTTE involvement.  Despite this he was reinstated to service in 1988, he was also after a further incident in 1991 (the ‘gross neglect of duty’ charge) not dismissed but given punishment duty.  The Tribunal does not accept as reasonable that he would have been reinstated to service if in fact his claimed past associations were known, nor given his claim of being suspected of being involved in the Rajiv Ghandi assassination that he would have continued on duty.  In particular it is noted that the TLA was linked with the assassination of Rajiv Ghandi (Fliers with bomb praise Ghandi killer, The Courier-Journal 25 May 1992, NEVIS), it is inconceivable that if the authorities had information of the applicant’s claimed connection that he would have been allowed to continue on active duty.  If the authorities did not know of any past involvement it is therefore inconceivable that he would have been used in identifications of suspects.

·        the applicant advised the Tribunal that after escaping from prison the first time and before going to Delhi, he had been searching for his brother from December 1992 until April 1993, he did this through people who were involved in the union.  The Tribunal does not accept this as reasonable nor plausible.  The applicant had no idea where his brother was or what had happened to him.  To claim to have spent 5 months looking for him in such circumstances, whilst he himself was being pursued by the authorities is fanciful.

·        the Tribunal also notes that the Rock’s DIMA notes indicate that the applicant had claimed that his brother and he had been part of a terrorist group involved in an assassination attempt and that both of them had been arrested, and that the applicant had escaped though his brother had been killed.  The applicant at hearing denied that he had said this. I do not accept the applicant’s statement at hearing and consider that what he has said to the counter staff has been accurately recorded.  In particular I note that it is of such detail that a misunderstanding is not reasonable to accept. I consider that this is indicative of the applicant not being a credible witness and that he has fabricated all of his claims.

Overall, for the above reasons the Tribunal considers that the applicant’s claims are contrived, are fanciful, and implausible.  The applicant’s claims of any involvement with the DK, TLA, LTTE and with a police union are not accepted as being true.  The Tribunal does not accept that he was implicated in the deaths and investigation of Sanmugan (Shanmugam) or Rajiv Ghandi, and considers that he has fabricated involvement in those events in the hope of advancing his claims.

For these reasons I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in the foreseeable future.”

The Applicant’s Submissions

Mr Young, who appeared on behalf of the applicant, relied on Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (FC), as establishing that                  s 420(2)(b) of the Migration Act describes procedures with which the RRT is bound to comply.  He also relied on Eshetu as authority for the proposition that a breach of the RRT’s duty to act according to substantial justice and the merits of the case is a ground for review of an RRT decision under s 476(1)(a) of the Migration Act: see at 303-304, per Davies J; at 317, per Burchett J; Sun Zhan Qui v Minister for Immigration and Ethnical Affairs (1997) 151 ALR 505 (FC), at 546, per Wilcox J; at 554-555, per Burchett J.  Mr Leeming, on behalf of the Minister, formally submitted that Eshetu (in respect of which the High Court has heard, but not yet determined an appeal) was wrongly decided.  However, he accepted that, as a single Judge, I would follow the decision.

It was common ground between the parties that the RRT’s decision was based wholly on its finding that the applicant was not a credible witness.  Mr Young submitted that the finding was based on a series of quite fundamental misconceptions, and thus could be characterised as so irrational as to amount to a denial of substantial justice.  His submissions did not distinguish between “irrationality” in the sense of so-called Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) and a failure rationally to consider probative evidence (relied on by Finklestein J in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397, at 402).  In essence, Mr Young contended that the RRT had made irrational assumptions and had failed to consider explanations given by the applicant for apparently implausible or inconsistent claims.  Mr Young further contended that the RRT had denied procedural fairness to the applicant, by failing to put to him the matters which it considered cast doubt on his credibility.  This, too, constituted a ground for review of the RRT’s decision, under s 476(1)(a) or s 476(1)(e) of the Migration Act.  Finally, Mr Young submitted that, on certain issues, the RRT had made findings unfavourable to the applicant without any evidence to support the findings, thereby giving rise to a ground of review under s 476(1)(g) of the Migration Act.

Mr Young identified what he said were serious flaws in the RRT’s reasoning in respect of what he described as the “seven pillars” (that is, the seven specific grounds on which it relied to find that the applicant was not a credible witness).  He contended that, in each case, the RRT had acted illogically or irrationally, or had failed to put relevant matters to the applicant.  According to Mr Young, once the pillars crumbled, the RRT’s finding on credibility fell to the ground.

Reasoning

Three Preliminary Points

Before considering the specific criticisms made by Mr Young of the RRT’s “seven pillars”, three points should be made.

First, as the Full Court has recently reiterated (Kopalapillai v Minister for Immigration and Multicultural Affairs, unreported, 8 September 1998), in dealing with the substantive elements of the requirements in s 420(2)(b) of the Migration Act it is important to bear in  mind that it is not open to an applicant to seek review of a decision on the merits.  The point has been repeatedly and authoritatively made: see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35-36, per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan  Liang (1996) 185 CLR 259, at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ.  As the Full Court in Kopalapillai pointed out (at 12-13), the knowledge and experience of members of the RRT can ordinarily be expected to ensure that they are sensitive to the special considerations relating to the credibility of applicants for refugee status.  Acceptance of the construction of the Migration Act adopted in Eshetu does not imply that an applicant is entitled to secure review of the merits of an adverse decision founded on an assessment of credibility. 

Secondly, in my view, Mr Young’s submissions wrongly assumed that the RRT’s findings on credibility were based entirely on its view that the applicants claims were implausible, and not at all on its assessment of his demeanour.  Doubtless, Mr Young had in mind judicial observations to the effect that a tribunal is entitled to take into account “the subtle influence of demeanour” in making credibility findings: see Navaratne v Minister for Immigration and Multicultural Affairs (unreported, 1 August 1997, Tamberlin J) and authorities cited in Chemaly v Minister for Immigration and Ethnic Affairs (unreported, 26 October 1998, Sackville J).

In my opinion, a fair reading of the RRT’s reasons shows that it did take into account the applicant’s demeanour, among other circumstances, when forming a view as to his credibility.  The RRT did not say in its reasons that the seven matters to which it referred in detail were the only matters it had considered.  It referred to them “in particular”, in support of its conclusion that the applicant’s claims were contrived and fanciful.  The RRT, after all, did have the opportunity to observe the applicant during the hearing.  Moreover, it commenced its analysis by stating that it “[did] not accept that the applicant was a credible witness”.  In expressing its conclusion, the RRT said that it had “considered the evidence as a whole”.  There is no reason not to accept that statement as accurately recording what the RRT did.  The RRT’s statement that the applicant gave his evidence in “a non-dramatic manner” does not detract from the conclusion.  The comment is neutral and cannot fairly be read as indicating that the RRT gained no assistance from observing the applicant at the hearing.

The significance of this reading of the RRT’s reasons is that it casts doubt on the approach taken by Mr Young in relation to its findings on credibility. In my opinion, it is not appropriate, in the context of an application for judicial review, simply to examine, seriatim, matters specifically referred to by the RRT in the hope (from the applicant’s perspective) that one or more might be shown to be “irrational” or “illogical”.  The RRT is entrusted with the task of fact-finding.  It is entitled, when making findings of fact, to consider all relevant material, including its assessment of the applicant’s demeanour.  A particular error of fact (assuming one is established) does not demonstrate of itself that the RRT has failed to accord substantial justice or that it has committed an error of law.

Thirdly, the present case is different from those on which Mr Young placed particular reliance in support of his submissions.  For example, in Singh v Minister for Immigration and Multicultural Affairs (unreported, 29 October 1998, Weinberg J), the RRT was held to have proceeded on the basis of a demonstrably false assumption.  (It had wrongly assumed that the applicant had given a particular explanation on an important question for the first time at the hearing, whereas he had in fact given the explanation earlier.)  The RRT had also wrongly attributed to the applicant a particular version of events and had rejected his overall account on the basis that the version wrongly attributed to him was false.  In Kathiresan v Minister for Immigration and Multicultural Affairs (unreported, 4 March 1998, Gray J), it was held that the RRT had found against the applicant, in part, because it had made a serious mistake about the timing of important events.  Its approach to credibility was therefore said not to have been based on rational grounds.  Similarly, in Epeabaka, Finkelstein J held that, in view of findings made by the RRT in favour of the applicant, its approach to other factual issues was (at 406) “illogical and self-contradictory”. 

In the present case, Mr  Young did not suggest that the RRT proceeded on demonstrably false assumptions, nor that it attributed to the applicant claims that he had never made.  While Mr Young criticised the RRT’s approach to assessing the applicant’s credibility, he did not contend that the RRT had made favourable findings of fact which enabled the Court to characterise unfavourable findings as “illogical and self-contradictory”.

The Applicant’s Criticisms of the RRT’s Reasons

Despite the reservations I have expressed concerning Mr Young’s approach to the RRT’s findings on credibility, I turn to the specific criticisms made by him of the RRT’s reasoning.

(i)         The applicant complained that the RRT did not put to him its doubts as to whether he had obtained original documents (as he claimed) from his sister-in-law.  The applicant’s account at the hearing was that the documents relating to his police service had been sent to him by one of his former colleagues.  In response to a question from the RRT Member, the applicant said that his sister-in-law had given the documents to the former colleague, who had in turn sent them to him.  However, the RRT Member did not question the applicant further on this issue.  Nor did he specifically warn the applicant that he (the Member) found his answer unconvincing.

I do not think that the RRT was bound to ask the applicant further questions about the role of the sister-in-law or to tell the applicant that his account on the question was liable to be disbelieved.  The general principles were stated by the Full Court in Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576, at 591:

            “A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted.  On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it….  Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case….

            The general propositions set out above may be subject to qualifications in particular cases.  Two such qualifications were enunciated by Jenkinson J in Somaghi [v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FLR 100, at 108-109]:

            1.         The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it….

2.                 The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material….

            His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases.”

In this case, the applicant could not have been in any doubt that his credibility was in question.  The Minister’s delegate had disbelieved the substance of his account.  The written submissions prepared on the applicant’s behalf recognised that the basic issue was whether his version of events in India would be accepted.  During the hearing (prior to the questions concerning the source of the documents), the RRT made it plain that it had difficulty with his evidence.  For example, the RRT Member asked whether the applicant had copies of the documents said to have been forwarded on his behalf by his brother to the Indian authorities.  The transcript records the following:

“I        No because I came to know about this through my sister-in-law.

TM      Well if you could get papers and things why weren’t you able to get a copy of that?

I           This is a very old matter and for many things I couldn’t get newspaper clippings.

TM      It all sounds very convenient for me that you sort of linked all this together.

I           What sort of conclusion?

TM      Well I just think that from there are some parts what you are saying that appeared to me true but you just seem to link yourself to every major thing that has happened in Tamil Nadu from early nineteen eighties onwards.

I           That is wrong.”

In these circumstances, in my opinion, it was not incumbent on the RRT to warn the applicant that it did not find his answers as to the source of the documents to be convincing.  Nor was the RRT obliged to question the applicant further on that topic.  The applicant’s evidence on this issue was only one of a number of matters bearing on his credibility.  The applicant and his adviser were aware that his credibility was in issue and that his account on any given question might not be accepted.  Written submissions had been prepared on that basis.  Moreover, the applicant and his adviser were given an opportunity at the conclusion of the hearing to make further submissions and provide additional documentation.  The RRT was not bound to express its tentative or provisional view of the evidence: Laycock v Forbes (1997) 150 ALR 186 (FCA/Goldberg J), at 196.  It was certainly not bound to accept the applicant’s version of events.

(ii)        The applicant also complained that the RRT had failed to put to him that his account of his two escapes from custody was implausible.  However, this complaint is without foundation, since the RRT put the substance of its concern directly to the applicant during the hearing.  The RRT was not bound to accept the applicant’s explanation.  The fact that it did not do so does not mean (as Mr Young appeared to suggest) that the RRT failed to consider the “merits of his explanation”.  The RRT considered the applicant’s explanation, but rejected it.

(iii)               Mr Young characterised the RRT’s rejection of the explanation for the applicant’s willingness to fly out of Madras airport as “disconcertingly illogical and irrational”.  It is difficult to see why the RRT’s finding on this question should be described in such pejorative terms.  The RRT found it “inconceivable” that a person who had been imprisoned and tortured in Tamil Nadu and was “on the run” from the authorities there should choose to fly out of India from Bombay via Madras (in Tamil Nadu).  The RRT put its concerns to the applicant, but disbelieved his response.  It may be that not every decision-maker would have taken such a firm view; nonetheless, the RRT’s approach was open to it.  The RRT’s rejection of the applicant’s account fell squarely within its province as a fact finder.

(iv)              The applicant argued that there was no evidence to justify the RRT’s finding that the document of 22 June 1988 was not a “true document”.  Again, it was said that the RRT did not put its concern that the document had been falsified.

These arguments pay scant regard to the course of the hearing before the RRT.  The RRT Member questioned the applicant in terms that made it abundantly clear that the Member had grave reservations about the applicant’s claim that, immediately upon his reinstatement as a police officer (after his desertion in 1982), he should have become president of a union, and put forward strong demands on behalf of police officers.  Faced with this line of questioning, the applicant said that, although the notice had been printed in June 1988, he had begun his union activities in 1989.  Moreover, he conceded that the printed notices “were not handed over to people”.  It appears that the applicant did not produce any further documentary evidence to support his claimed role as union organiser and activist.

In making its finding on this question, the RRT had available the applicant’s evidence, the printed document dated June 1988 and a translation thereof.  It could also take into account other claims made by the applicant concerning the union, both in his statutory declaration and his evidence, and the absence of further documentary evidence.  In my opinion, it was far from irrational for the RRT to reach the conclusion it did.  Once again, despite Mr Young’s earnest submission, the RRT’s rejection of the applicant’s version of events does not imply that the RRT simply ignored his claims or his evidence on the topic.

(v)                The applicant criticised the RRT’s statement that it was inconceivable that, if the authorities had information concerning the applicant’s involvement with DK, the TLA and the LTTE, they would have allowed him to remain on duty.  The basis of this criticism was not clear.  In any event, the applicant claimed that he had been tortured because of his suspected involvement with the TLA.  Yet he also claimed that, even after being held in custody and placed on punishment duty following Rajiv Ghandi's assassination, he remained in the Police Force.  It was a matter for the RRT to evaluate the claims in the light of all the available material and form a view as to their plausibility.  It did so.

(vi)              The applicant submitted that the RRT’s findings concerning his attempts to locate his brother lacked “any semblance of rationality or logic”.  Again, it was a matter for the RRT to assess the plausibility of the applicant’s account, having regard to all the circumstances.  The RRT was not bound to accept the applicant’s evidence.  It was entitled to take into account (as it did) its impressions of him as a witness and the inherent plausibility (or lack of plausibility) of all his claims.

(vii)             Finally, the applicant argued that the RRT had failed to ask the applicant whether he disputed the record made by the Counter Officer of the claims the applicant made when lodging his application.  However, the RRT Member did ask the applicant, albeit briefly, about the interview with the Counter Officer.  The applicant was also asked about his ability to speak English, since the RRT Member appreciated that the interview with the Counter Officer was conducted in English.  Moreover, the applicant’s written submissions had addressed precisely this issue, doubtless because the applicant and his adviser recognised that the issue was important and had to be dealt with.

In these circumstances, there was no failure by the RRT to accord the applicant “substantial justice” or a “mechanism of review that is fair”.  The applicant understood the significance of the record of interview by the Counter Officer and advanced his explanation.  The RRT, as it was entitled to do, rejected that explanation.

Conclusion

In my view, none of the specific complaints made by the applicant about the RRT’s procedures or reasoning has been made out.  Thus the submissions advanced by Mr Young on the applicant’s behalf cannot succeed.  In any event, for the reasons I have given, I do not think that the RRT’s reasons should be scrutinised in the fragmented manner implicit in Mr Young’s submissions.

The RRT had to make findings about past events, as part of its task of assessing whether the applicant had a well-founded fear of persecution for reasons of political opinion.  That task required the RRT to reach conclusions about the applicant’s credibility and the reliability of his account of events in India.  It had to do so in the light of all relevant material.  The material in the present case included not only the “seven pillars”, but the plausibility of the applicant’s overall version of events; the extent to which the available documentation supported or undercut the applicant’s case; any explanation advanced for apparent gaps in the documentation or inconsistencies in the applicant’s claims; independent information bearing on the relevant events in India (particularly in Tamil Nadu); and the impression formed by the RRT of the applicant as a witness.  In my view, the RRT committed no error of law or other reviewable error in undertaking this task.

The application must be dismissed, with costs.

Associate:

Dated:              23 December 1998