FEDERAL COURT OF AUSTRALIA

Rajamanikkam v Minister for Immigration & Multicultural Affairs

[1999] FCA 1411

 

MIGRATION – appeal from refusal of Refugee Review Tribunal to grant protection visas – Sri Lankan Tamils – whether the Tribunal erred in law in rejecting application on the basis of factual inconsistencies and credibility – determination that applicant concocted primary claims – issues of language, misinterpretation, misunderstandings and applicant’s memory – effect on judicial review of failure by Tribunal to set out in its decision its reasons and findings on material questions of fact as required by s 430(1) – meaning and extent of s 425 requiring Tribunal to invite the applicant to “present arguments relating to the issues arising in relation to the decision under review”

 

 

Migration Act 1958 (Cth), ss 425, 430(1), 476 (1)(a), 476 (1)(e), (1)(g), (4)(b)

 

Lowerson v Repatriation Commission [1994] 50 FCR 252, cited

Abebe v Commonwealth [1999] 162 ALR 1, cited

Minister for Immigration & Multicultural Affairs v Eshetu [1999] 162 ALR 577, applied

Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946, applied

Sun Zhan Qui v Minister for Immigration & Multicultural Affairs [1997] FCA 324, applied

Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182, applied

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247, applied

 

 

 

 

 

 

NADARASA RAJAMANIKKAM & BALAMBIKAI RAJAMANIKKAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

 

NG 1133 OF 1998

 

 

 

 

EINFELD J

19 NOVEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1133 OF 1999

 

BETWEEN:	NADARASA RAJAMANIKKAM AND BALAMBIKAI RAJAMANIKKAM Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EINFELD J
DATE OF ORDER:	19 NOVEMBER 1999
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.      the application for judicial review be granted

2.      the Tribunal’s decision be set aside and the matter be remitted to the Tribunal for a fresh hearing to be conducted by another Tribunal member

3.      the respondent pay the applicant’s costs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1133 OF 1999

 

BETWEEN:	NADARASA RAJAMANIKKAM AND BALAMBIKAI RAJAMANIKKAM Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

 

JUDGE:	EINFELD J
DATE:	19 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1                     The applicants, husband and wife, are elderly Sri Lankan Tamils who arrived in Australia on visitors’ visas on 24 May 1996 and on 26 June lodged a combined application for refugee asylum.  On 27 March 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant protection visas and on 1 April the applicants appealed to the Refugee Review Tribunal.  The Tribunal affirmed the delegate's decision on 29 September 1998 and the applicants have now applied to this Court for judicial review of the Tribunal's decision.  The success of their application depends on whether there was relevant legal error in the Tribunal's rejection of their contention that they cannot return to Sri Lanka because of a fear of persecution due to their Tamil ethnicity, even if, as the Tribunal determined was possible, they were to relocate from their previous home at Trincomalee to another part of the country, such as Colombo in the south, or to Jaffna or Point Pedro in the north, or to the central area of the country.

2                     Only Dr Rajamanikkam made specific claims to the Tribunal under the Geneva Convention on Refugees.  A clinical psychologist reported to the Tribunal that Mrs Rajamanikkam could not give evidence to any court because she suffers from extreme distress and only has memories of significant negative elements of her previous history.  She also suffers from advanced osteoarthritis of both knees and is, as a result, unable to walk.  As a consequence she did not give evidence at all.  As did the Tribunal, I will therefore refer to Dr Rajamanikkam as the applicant, as to whom the clinical psychologist reported to the Tribunal that he had lost some skill in English as his second language and that his behaviour and presentation may be consistent with early signs of a dementing process.

3                     The applicant's claims were set out in an interview with a departmental officer on 4 February 1997 (departmental interview), written submissions to both the department and the Tribunal, and oral evidence presented to the Tribunal at hearings on 27 April (first hearing) and 24 July 1998 (second hearing).  The submissions were made in four statements or statutory declarations, respectively dated 25 November 1996 (first statement), 19 February 1997 (second statement), 26 May 1998 (third statement) and 6 August 1998 (fourth statement).  His case was that he fears returning to Sri Lanka because he will be persecuted, even killed, either by the LTTE or government authorities, each suspecting him of association with the other.  The application for asylum was rejected by the Tribunal on the basis of factual inconsistencies in his evidence, stemming from his oral and written statements.  The Court has often stated that rejections of credibility of applicants by an inquisitorial tribunal require close scrutiny to determine their correctness in law. Although in legal theory if a tribunal of fact misinterprets evidence given, or comes to unreasoned or unreasonable conclusions about it, it may make an error of law, it will ordinarily be the materiality to the decision and the overall impact of any misinterpretations or unavailable conclusions in a particular case that will determine whether there has been such legal error as to require an order of review.  The applicant’s lawyer argued that if there are discrepancies in his evidence it is understandable in light of his age and ill health, but that the majority of the alleged discrepancies are not discrepancies at all and therefore the finding of lack of credibility is not sustainable.  It might have been added that it would be surprising if there were no inconsistencies in as many different efforts to present a case as occurred here.

Undisputed Facts

4                     Some facts were undisputed and were apparently accepted by the Tribunal.  The applicant is a seventy-eight year old retired medical practitioner, born in the Jaffna region in 1921.  His wife is of a similar age.  Their first language is Tamil.  They have two daughters living in Australia and one son living in the United States.  The applicant has a sister living in Germany.  He studied medicine in Colombo, his language of instruction being English.  He is able to speak, read and write English and the Tribunal's file contains several letters of the applicant, handwritten in English.  At the hearings before the Tribunal the applicant was able to answer, in Tamil or English, before most questions were translated, and to correct some perceived imperfections in the translation.  The applicant understands Sinhalese to some extent and was able to manage with Sinhalese patients, but does not speak the language fluently.  The applicant practised medicine with the Sri Lankan Department of Health Services for more than 30 years, serving in different regions of the country.  From 1943 he spent five years in the Hill Country in the Central province after which he went to the Kandy district for another five years.  In 1953 he went to the Ratnapura district and then to the Eastern province until 1963.  Between 1963 and 1966 he practised in the Badulla district and then again in the Ratnapura district from 1966.  In 1971 the applicant was transferred to his home district of Point Pedro near Jaffna where he worked until his retirement in 1976 when he opened a private medical practice.  (Jaffna is the name of a region/province as well as of its main town or city.  In the course of this matter hitherto, the name has been used indiscriminately to describe both.  Point Pedro is in the Jaffna region.)  On 23 May 1996 the applicant and his wife left for Australia.

Other claims of the applicant

5                     1.         He first had problems with the Sri Lankan authorities in 1984 when, while riding a bicycle in Point Pedro, he was kicked by members of the Sri Lankan Army.  This incident was not mentioned in either the first or second statements.

2.                  The applicant was thereafter repeatedly threatened by the authorities and warned against having any contact with the Liberation Tigers of Tamil Eelam (LTTE). 

3.                  (First statement and first hearing)  In 1984 the applicant and two of his neighbours, a "senior accountant" and a "senior lawyer", were abducted when the LTTE entered private premises one evening while the neighbours were conversing.  On neither occasion did the applicant specify whose premises these were.  All three were detained overnight and were accused of being supporters of the Tamil United Liberation Front (TULF).  TULF is said to believe in Tamil Eelam, an independent or autonomous entity for Tamils to occupy, but to achieve it through peaceful and democratic means. 

4.                  The applicant was obliged to treat wounded soldiers who were fighting with the Sri Lankan armed forces.  As a consequence, he was visited by the LTTE on a number of occasions and taken into the jungle for days at a time to provide LTTE militants with medical treatment.  By 1988 he was being taken away more frequently.  This development depressed him and made him fear for his and his family's safety. 

5.                  In 1987 the applicant's surgery was damaged by the Indian Peace Keeping Force (IPKF).

6.                  In July 1988 he was arrested by the IPKF and detained at the Palaly camp for three days on the suspicion of being a LTTE supporter.  During his detention, he was handcuffed and kicked, eventually achieving release only by paying a bribe to a member of the Eelam People's Revolutionary Liberation Organisation (EPRLF), a Tamil militant group working with the IPKF. 

7.                  In May 1989 the applicant closed his medical practice in Jaffna.  (Second statement)  From 1989 to 1992 the applicant and his wife were forced to move around the Jaffna Peninsula to avoid the shelling and fighting.  (First and second statements)  By 1990 the LTTE had taken control of the Peninsula.  (First statement) Between 1990 and 1992 he continued to treat LTTE militants, but due to what he called “the combat” between the LTTE and government security forces, it was impossible for him to continue his practice.  In January 1992, he convinced a senior LTTE militant to provide him with a pass to leave Jaffna in return for his premises. They went to Trincomalee because it was a Tamil area.  In 1992 he started another medical practice in Trincomalee.  

8.                  (First hearing)  The applicant became reasonably well known in Trincomalee because he was a doctor.  While there, he was subjected to periodic security checks and on several occasions was taken to a temple for a check of his identity documents.  (Second statement)  However, his main problems after his arrival in Trincomalee were with rival Tamil militant factions:

EPRLF and TELO were trying to extort large sums of money from me, under the threat of abducting me or having me arrested by the army.  If you refuse to give them money, they report you to the army as a supporter of the LTTE.  I am susceptible to this because I am a Tamil from Point Pedro.  This is even worse than being a Jaffna Tamil.

[TELO is the Tamil Eelam Liberation Organisation.]

9.                  (First statement)  In December 1995 the applicant was forcibly taken by LTTE militants into the jungle and was ordered to treat injured militants there.  He pleaded with them to let him go which they agreed to do if he paid them Rp 50,000 and left Trincomalee and returned to Jaffna.  He agreed to the bribe but told them that he had handed his Jaffna (ie region, presumably Point Pedro) properties over to the LTTE and would have no income without his medical practice in Trincomalee.  His fears and extreme vulnerability led him to form the intention to leave Sri Lanka for good.  It appears that the LTTE may have encouraged him to pursue that idea because of his unwillingness to return to Jaffna (ie Point Pedro).  (Second statement)  The bribe was promised to one of the Tigers, a boy who had been known to him in Jaffna, and who happened to be in charge of that camp.  (Second hearing)  The LTTE took him to Sambaltivu and said that they wanted to keep him for seven days but because he knew the boy in charge and promised to pay the Rp 50,000, he was able to reduce this time to two days.  The bribe was never paid and his fear of being killed by the LTTE on his return is in part because of the non-payment of the bribe.

10.              In April 1996, while working to earn money to leave Trincomalee, the applicant was arrested by the army following the shooting of the village headman (apparently a Government official or representative).  His surgery was searched and he was arrested for being "a Jaffna Tamil who had moved from Jaffna recently".  He was told that he would be detained for seven days.  The army knew or believed that he had been treating the LTTE because they accused him of “helping” the Tigers.  He was taken to an army camp in Trincomalee.  (First statement)  He was taken to "the cell".  (First hearing)  He was taken to a place he described as “like a house” near Trincomalee, which was controlled by the army.  (Third statement)  He was taken to a group of houses outside Trincomalee controlled by the army, one house being divided into cells.  The term "army camp" was used widely in Sri Lanka to refer to any place held by the army.

11.              At the army camp or house, the applicant was paraded before hooded persons, who he suspected were members of the EPRLF or the TELO, and "nodded", that is, identified as a LTTE supporter.

12.              (Second statement)  Approximately four hours into his detention, “about five young men” entered his cell.  (First hearing)  He was taken into a cell and questioned and pushed around by “I think three men”, two of whom were in uniform, and the third he suspected to be a member of the EPRLF.  (Third statement)  There may have been four uniformed men who would enter his cell two at a time with an ununiformed person, and he therefore always only saw three persons.  (Second hearing where this suggested discrepancy in facts was put to the applicant)  He was unsure of the numbers and he was tense and under stress. 

13.              (First hearing)  His release was secured after three days (he told the delegate it was two days) through negotiations with an EPRLF member, who acted as his agent, and a bribe of Rp 10,000 which he did pay.  The agent then took him back to his surgery in a vehicle.  He was released because he had told his captors that he would leave Trincomalee.  To the suggestion by the Tribunal that if the army saw him as of serious concern, he would have been kept in detention for longer than two or three days, the applicant responded that his detention was shortened as a result of his bribe and his undertaking to leave Trincomalee.

14.              (First hearing)  The applicant and his wife left Trincomalee about a month later and on 15 May 1996 they went to Colombo and obtained Australian visas.  Their passports showed that his wife obtained her visa in Colombo on 9 May, and that he obtained his visa on 10 May.  (Hence the date of arrival in Colombo must be wrong.)  The one day's difference between the applicant’s and his wife’s visas was because he was required to present a medical certificate on account of his age.  (It is not clear why this requirement was imposed as his wife is of a similar age.)  (Third statement)  The applicant went to Colombo in early May 1996 and his previous assertion that he had done so on 15 May was a result of his poor memory and confusion.  (Second hearing)  He agreed to the Tribunal’s suggestion that he went to Colombo in early May 1996.  He explained the discrepancy between the early and 15 May dates as that following his detention he was "feeling pain" from being beaten and he remained in

Trincomalee for some time before travelling.  He would have left in early May, about three weeks after his detention.

15.              (Reasons for decision)  The applicant had, while in Colombo, registered with the Sri Lankan authorities.  (Third statement)  The applicant stated:

I stayed in a lodge in Colombo at that time.  We gave our names and identity cards to the lodge manager.  It is the practice for the lodge manager to send a list of names of occupants of the lodges and their identity card numbers to the police on a daily basis.  (I refer to Dr Kandiah's correction of the interpreting at the hearing in this respect.  My answer, as interpreted, had the meaning that I registered with the police.  In fact it was not me but the lodge manager who registered all the occupants).

Application for review

6                     In his further amended application filed in Court on the day of the hearing, the applicant provided three grounds for an order of review.  The first ground arose under sections 476(1)(g) and 476(4)(b) of the Migration Act 1958 (the Act).  Those provisions state respectively:

 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds

…

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

…

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

…

            (b) the person who made the decision based the decision on the

            existence of a particular fact, and that fact did not exist.

The unsatisfactory concept of a fact not existing has been criticised before: eg Lowerson v Repatriation Commission [1994] 50 FCR 252.  What is meant is that there is no evidence to support an assertion or finding of fact.

7                     The applicant gave particulars of this ground as follows:

(a)   The Tribunal considered that the applicant had given misleading evidence because he told the Tribunal that in fact he did receive a pension.  There was no evidence that this was the case.

(b)   The Tribunal considered that the applicant had given misleading evidence because he told the Department that Point Pedro had not been cleared of the LTTE and he had denied that Point Pedro had been taken over by the Government.  There was no evidence that this was the case.

(c)    The Tribunal considered that the applicant had given inconsistent evidence about the place where he was detained when he was arrested by the Sri Lankan Army in April 1996.  There was no evidence that this was the case.

(d)    The Tribunal considered that there was an inconsistency between the applicant's accounts of how many people interrogated him during his detention in April 1996.  There was no evidence that this was the case.

(e)    The Tribunal considered that the applicant was attempting to create a profile and a reason for his arrest which he did not have by claiming that he was a recent arrival from Jaffna to Trincomalee.  There was no evidence that this was the case.

(f)     The Tribunal considered that there was an inconsistency or an ambiguity in the applicant's evidence that he had to pay a SLR 50,000 bribe in relation to the December 1995 detention by the LTTE.  There was no evidence that this was the case.

(g)   The Tribunal considered that there was evidence that the timing of the applicant's alleged detention by the Sri Lankan authorities was suggestive that it may have been concocted.  There was no evidence that this was the case.

[The last three paragraphs have been re-numbered to correct an error in the document itself.]

8                     The second ground for review arose under paragraphs (a) and (e) of section 476(1) of the Act, those provisions stating:

(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.

The second ground was also brought under section 430 of the Act, which requires the Tribunal to set out its reasons and findings on material questions of fact.  The particulars of this ground were:

The Tribunal failed to make any findings on material claims raised by the applicant as to why he was unable to relocate to either Jaffna or Point Pedro or the Central area.

9                     The third ground for review again arose under s 476(1)(e) of the Act:

The Tribunal failed to properly address the question as to whether, based upon the whole of the evidence before it, the applicant had a “well-founded fear” of persecution within the meaning of Refugee Convention.

10                  However, as argued, this case also raised two special if not quite unique questions.  The first one is the effect on judicial review of a failure by the Tribunal to set out in its decision its reasons and findings on material questions of fact as required by section 430(1).  This subsection provides:

Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)     sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based.

As long as the requirement to set out findings on material questions of fact is a required procedure “in connection with the making of [a] decision” within section 476(1)(a) of the Act, it will be judicially reviewable.         

11                  The second comparatively new question raised by the case is the meaning and extent of section 425 which provides:

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

Sections 423 and 424(1) require the Tribunal to have regard to all the information it gets in making its decision.  The question posed by this case is whether a failure by the Tribunal to advise an applicant of an issue which arises or comes to arise in relation to, still more if it is determinative of, the decision under review so that he can present argument and evidence in the matter is a breach of this provision and therefore judicially-reviewable pursuant to section 476(1)(a) – previously extracted – or (c):

that the decision was not authorised by this Act or the regulations.

The cases

12                  In Minister for Immigration & Multicultural Affairs v Eshetu [1999] 162 ALR 577, Gleeson CJ and McHugh J said at 588-9 that “Part 7 Div 4 deals with the procedures to be adopted by the Tribunal.  Part 7 Div 5 deals with similar matters”.  On the other hand, Gaudron J in Abebe v Commonwealth [1999] 162 ALR 1 said that “the procedures” were set out in sections 423-9 inclusive, thus omitting the provisions of Division 5 which includes section 430. 

13                  In view of that possible difference of approach, I believe that I should follow the views of a Full Court of this Court in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 (Justices Wilcox and Madgwick at paragraph 22; Justice Hill at paragraph 51) and the cases therein referred to, and of another Full Court of the Court (Spender, North and Merkel JJ) in Thevandram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 at paragraph 37, that a failure to comply with section 430(1) is a ground for judicial review under section 476(1)(a) and (c) in that it may represent both a failure to observe required procedures and an unauthorised decision.  Thevandram decided that “material” questions are “questions which are central to the case raised on the material and evidence before [the Tribunal]”.  In my opinion, findings on material questions of fact and the reasons for a decision are prerequisites to the decision and the making of the decision.  They are therefore necessary procedures “in connection with the making of the decision”. 

In Muralidharan v Minister for Immigration and Ethnic Affairs [1996] 62 FCR 402, Sackville J examined the authorities on the extent of the need for reasons and said at 414B:

… [s 430] … does not require the Tribunal to prepare lengthy reasons dealing with every aspect of the evidence.  What is required is that the Tribunal set out “in short and measured, but specific, terms its findings in connection with” matters relevant to its decision … it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns …

His Honour went on at 415F:

… in the absence of some findings of fact and some reasoning process, however succinctly expressed, a reader of the Tribunal’s reasons simply cannot ascertain why the Tribunal reached its conclusions and whether or not it fell into legal error.

Australian Telecommunications Commission v Barker [1990] 12 AAR 490 at 493 is to similar effect (Full Court of this Court, Davies, Gummow and Hill JJ):

It is true that relevant evidence was referred to; but that evidence left the question open.  In the absence of reasons explaining why the Tribunal came to that critical finding, [its] decision was correctly set aside for error of law.

14                  The reach of section 425 was considered in Minister for Immigration & Multicultural Affairs v Cho [1999] 164 ALR 339, where at 347-8 in paragraphs 31-41 a Full Court of this Court (Tamberlin, Sackville and Katz JJ) expressed the view, by reference to authority and the facts of the particular case, that the section does not require the Tribunal to present all the evidence it has gleaned to the applicant.  Their Honours stated that the “genuine opportunity” to appear spoken of by Justice Lindgren in Sun Zhan Qui v Minister for Immigration & Multicultural Affairs [1997] FCA 324 paragraphs 59-60, and apparently approved by the High Court in Eshetu at paragraphs 49 (Gleeson CJ and McHugh J) 109 (Gummow J) and 178 (Callinan J), meant no more than a real opportunity to appear and give evidence.

15                  As I read the decision, there is nothing in Cho which would suggest that where major rejections of an applicant’s credibility in the sense of truthfulness on fundamental claims are not raised with the applicant so as to permit an opportunity to argue and state a position might not in particular circumstances represent a breach of section 425.  Although referring to it, their Honours did not dissent from the view of Justice Lindgren in Sun that such a breach may amount to a failure to observe a “procedure” under section 476(1)(a).

The Tribunal's conclusions

16                  The Tribunal determined that the applicant had concocted his “primary claims”.   "Concocted" does not mean an accidental mistake or inconsistency; rather it suggests a deliberate colouring of the case.  Here it meant in effect lying and fraud about all the major claims made.

17                  As far as I can tell from the transcript, the possible concoction of the applicant’s principal claims was never an “issue arising in relation to the decision under review” as provided in section 425 until the Tribunal’s reasons for decision were published.  In relation for example to what was agreed on all sides to be the very important question of the applicant’s arrest and detention by Sri Lankan authorities in Trincomalee for two or three days in April 1996 which the Tribunal found to be a lie, ie

He was not detained and he had not been of interests [sic - presumably "interest"] when caught up in the routine security checks in Trincomalee.

the delegate accepted that it occurred and that it represented significant criminal and human rights abuse:

·        I accept that the applicant may have suffered mistreatment and harassment when he was detained and questioned by the Sri Lankan authorities.  However, it would not have been unreasonable for the authorities to question the applicant in relation to a criminal act regarding the murder of the village headman.  In addition, the applicant was held for a short period of time and then released, and, after, the applicant was able to depart the area, indicating that the authorities did not have a genuine interest in the applicant;

·        I have taken into account that the applicant was detained at a time of intense civil conflict, when, as part of national security procedures, it would not have been unreasonable for the Sri Lankan authorities to question anyone they suspected as having information about a militant organisation who was endangering the safety of the general population;

·        In addition, the applicant stated that the officers had detained him in order to extort money from him.  Unfortunately, as indicated by Sri Lanka Country Information, extortion is a widespread problem and is not necessarily targeted at any particular ethnic group.  The applicant has been a victim of a generalised abuse of authority which has been carried out by members of all Tamil factions as well as members of the Sri Lankan forces.  While I acknowledge that the applicant has suffered mistreatment due to persons breaking the law, I find that the extortion demands made of the applicant were disinterestedly individual, and were not done for a Convention reason;

·        I have taken into account that the applicant may have reasons to fear danger as a victim of generalised civil conflict between militant LTTE rebels and government authorities, particularly in the northern and eastern part of Sri Lanka.  However such danger does not necessarily amount to persecution for a Convention related reason

In other words, the delegate made no adverse finding as to the applicant’s truthfulness on this matter.

18                  Accordingly the applicant, whilst apparently “invited” to appear, inter alia, to “present arguments”, was not given an opportunity to do so on the crucial concoction issue which

arose for the first time in the decision of the Tribunal where it was not merely ‘related to’ the decision under review, but was virtually determinative of what its fate would be.

19                  In my view, section 425(1) required that that extreme allegation be clearly put to the applicant and his answer taken and recorded.  If denied, but the allegation was to become a conclusion, as occurred here, section 430 imposed an absolute need for a reasonable analysis and explanation of what the actual discrepancies were, even more so as the protection and ordinary safeguards of adversarial litigation were absent.  Neither of these events occurred in this instance.

20                  According to the Tribunal, the concoctions included that although the authorities did not know that the applicant was treating members of the LTTE, he was suspected of having assisted them; that he was "nodded" by the hooded men, as he was released after two or three days; and that he did not leave Trincomalee because of this experience but probably because he had decided to leave at the end of his medical career there.  The Tribunal found that the applicant was a well known and respected person in Trincomalee, and as a consequence was not of any interest to Sri Lankan authorities.  Nor was he of any interest to the LTTE and he does not owe them Rp 50,000.  His claims that he was the subject of extortion and other demands from other Tamil militants were also concocted although he has paid “a few thousand rupees” to them.  If the extortion attempts took place, they were for the purpose of obtaining money, not for a Convention reason. Few of these matters were ever raised with the applicant at all.  He was simply denied the opportunity to give evidence or present arguments on them.  As they appear to have been issues raised by the Tribunal “in relation to the decision under review”, section 425 was not complied with.

21                  A range of factors led the Tribunal to reject the applicant's credibility virtually totally, all of which will be addressed.  The issue is whether it was reasonably open on the evidence upon which the Tribunal relied to reject the application on this basis.  Two preliminary matters to which the Tribunal gave passing attention were translation difficulties, and the age and mental deterioration of the applicant.

Interpretation

22                  The applicant submitted that there was a range of mistakes in interpretation at the Tribunal's first hearing.  The Tribunal acknowledged that there were some slight difficulties in translation but concluded that the applicant was not disadvantaged as there was, according to the Tribunal, a high level of communication.  In the view of the Tribunal, the applicant demonstrated a command of English during the hearing and was often able to answer in English questions that were asked of him even before they were interpreted.  The Tribunal's reasons stated that "[t]here were no problems with communication during the second hearing" where relevant points of concern at the first hearing were clarified.  I have read the transcript of the hearings.  The overwhelming conclusion is that either the interpretation was inadequate or there were a significant number of misunderstandings.  Much of the transcript is confusing and requires a high degree of improvisation and interpretation.  As it introduces each comment of the applicant with the words “THE INTERPRETER”, and some of the language is sophisticated and some of it is quite unintelligible, it is often not clear whether it is recording the interpreter’s or the applicant’s words.  It is also not clear if the answer was given in English or Tamil.  Obviously the Tribunal knew what occurred and what was said by whom in what language and how well.  But whatever the technical facts in this connection – and transcript should always make the position clear, the Court is well able to conclude for itself whether the evidence in substance was at best ambiguous and requiring of clarification before it could have provided a firm basis for a rejection of much or most of it as false.

Memory

23                  The applicant claimed that at times his memory was bad.  However, the Tribunal stated that his evidence on some points was very convincing and he was able to clearly remember details of his long career.  While noting the clinical psychologist’s opinion of the applicant's increasing dementia as supporting the applicant’s memory difficulties, the Tribunal decided that that professional conclusion did not mean that it was required to accept that the applicant was telling the truth.  In fact, the Tribunal concluded that the applicant "blamed his memory when he otherwise could not explain the inconsistencies in his evidence".  This issue is highly subjective and the Tribunal had the benefit, which the Court does not enjoy, of having seen and heard the applicant give evidence.  It is therefore not appropriate that the Court inject itself into this issue unless perhaps there is no other possible explanation for a material inconsistency than an asserted poor memory.

Issues relating to credibility

24                  In its reasons for decision the Tribunal identified eight factors which led to its rejection of the applicant's evidence:

1.  Misleading evidence given to the Department

25                  The Tribunal held:

… that in relation to his evidence to the Department concerning his pension and the security situation in Point Pedro the applicant was attempting to give misleading evidence which would raise concerns about whether it would be reasonable for the applicant to return to Jaffna/Point Pedro or otherwise relocate.

The explanation for this finding was as follows:

 

The applicant told the Department on 4 February 1997 that he was not receiving a pension.  When he was pressed on this at the interview, the applicant claimed that he was not receiving it because his papers had been misplaced in his move from Jaffna to Trincomalee.  He was receiving a pension in Jaffna.  He claims that it was stopped.  However the applicant told the Tribunal that in fact he did receive a pension.

At the hearing the Tribunal asked the applicant why he had told the Department that Point Pedro had not been cleared of the LTTE.  He replied that he did not say that it had not been captured.  However in fact the applicant had told the Department that the LTTE has taken the house and everything and had denied that Point Pedro had been taken over by the Government.

These matters require separate consideration.

Pension

26                  In my view, the Tribunal's primary conclusion on the issue of the pension has no foundation in the evidence and its determination that the applicant was attempting to mislead the Department was quite unsupported by evidence.  An extract of the departmental interview was tendered at the hearing.  On the pension issue, it recorded:

Q:        Are you on a pension right now?

A:        No.

Q:        You’re not receiving a pension?

A:        No.

Q:        Don’t you receive a pension now?  Ex public servants receive pensions?

A:        But now because I shifted away from Point Pedro to Trincomalee I left my papers I misplaced or something I not receive.

Q:        Are you sure you’re not receiving because as far as I know, like if you originally received a pension while you were in … Were you receiving a pension while you were in Jaffna?

A:        Yes yes.

Q:        Alright, or Point Pedro.  If you shift to another area that pension still goes to Point Pedro.

A:        Yes.

Q:        What it means is that the money is still going there it’s just that you’re not there to get the money and if you want to get the money you need to apply for the file to be transferred to say Colombo or another part of the country and then you can receive the pension where you are.  So, would it be right to say that you’re probably still receiving the pension …

A:        … no …

Q:        … but you just don’t have access to it because you’re not there and you haven’t been able to shift the money to a place …

A

(INT):  Yes I have.

INT:    You asked him whether he has the right to get that pension?           

Q:        Yes, you have the right to a pension, is that right, and I mean, it’s quite possible to have money going into the bank at Point Pedro you just, I mean you don’t have it it’s been stopped and as far as I know there’s no reason that they would stop it unless you asked them to.

A

(INT):  Once you’ve shifted from one area to another they immediately stopped the … from that day (indistinct).       

Q:        Right so you have to apply to have it transferred to another area is that right?

A:        Yes that’s right.

Q:        Okay so you still have access to a pension.  I mean you still would have a right to a pension …

A:        … yes …

Q:        … it’s really up to you to put the wheels in motion.  Alright.

27                  In other words, the applicant had been receiving a pension in Point Pedro but in his move to Trincomalee he misplaced his papers and therefore could not apply to have the pension transferred.  The interviewer suggested that it was likely that he was still receiving a pension but he was not there to collect it.  The applicant responded that this was not the case and that he has a right to a pension but is not in receipt of one. 

28                  The delegate had found that he was receiving a pension.  At the hearings the Tribunal did not ask the applicant whether he was receiving a pension.  At the second hearing in reply to the question: "How much do you get for your Government pension?" he stated: "…less than $100…a month".  The applicant did not say there or anywhere else that he was in fact receiving the pension, as opposed to having a legal entitlement to it.  The question of whether, how and when he would ever receive it was never addressed other than the interviewer’s proposition that “as far as I know there is no reason that they would stop it unless you asked them to”.  This comment represents no evidence on which to base a conclusion of the kind advanced by the Tribunal.

Relocation

29                  At issue under this heading is whether the Tribunal erred in rejecting the applicant's contention that if he is returned to Sri Lanka, relocation to Jaffna (the town) or Point Pedro or Colombo, or to the central area will not provide them with security.  The delegate adopted a criterion of the United Nations High Commissioner for Refugees that

a valid threshold for returnees to establish themselves without serious personal security problems in [different areas], would be the presence of close relatives and/or duration of previous residence and/or a past employment in these areas. 

She found that the applicant’s “personal networks in the South and Central districts would help him settle there if he was so disposed”.  These networks were “business and personal contacts he would have made in these areas” during his working life there.  The evidence established that he had last been in the central region in 1966.  He had never lived or worked in the south.

Jaffna

30                  The applicants are elderly people in failing health.  According to the evidence, they have no family, status or possessions in Jaffna town.  Dr Rajamanikkam stated that there was no effective civil administration there and that there were people resigning from government positions as a result of murders by the LTTE.  So far as I can see, there was no contrary evidence.  The Tribunal did not explain how Jaffna was or would be a possible place for the applicants to live.  The impression is that the Tribunal just selected Jaffna as a well known town in a Tamil area and worked up to relocation without reason.

Point Pedro

31                  Point Pedro is said to be an important town located some 22 miles from Jaffna town/city but in the Jaffna region/province.  From 1976 it was the applicant's home town where he had owned properties but his evidence was that his house and everything else that was his in Point Pedro had been taken by the LTTE.  Although the army now has a military headquarters in Point Pedro and it is under government control, the LTTE still operates in Point Pedro.  In his second statement, the applicant stated that in Point Pedro he would be suspected to be a Tamil because of his name, language and identification card.  He would therefore be branded as a "Tiger". 

32                  In another extract of the departmental interview, the following exchange took place:

Q:        So your house, no-one was living in your home when you left?

A:        No.

Q:        Is anyone living there now?

A:        Somebody living not but there are boys the LTTE has taken the house and left.

Q:        In Point Pedro?

A:        Yes.

Q:        I thought that area was being taken over by the Sri Lankan Government.

A:        Now.

Q:        Alright.  Okay but no-one in your family’s there?  Now that the house, there’s no-one …

A:        No, no.

Q:        Okay so someone’s probably taken temporary ownership.  Because that house is still in your name, you still have the deeds to that house, is that right? 

A:        The house is still in our name but they have been taken by them.

Q:       Right, okay, but apparently that goes on that when people vacate the house the house gets taken by whoever’s in residence in the area at that time.  But the house is still, you have deeds to the house, the house is still yours, still your property?  You still own the property?

A:        We have (indistinct) but they also have taken the deeds.  LTTE.

Q:        Well they might have taken the deeds but it’s only temporary the deeds are given over to the LTTE when people leave the country.

A:        And when they leave they take all the deeds.

Q:        I understand that.  But you still under Sri Lankan law would have access to …

A:        … under Sri Lankan law it belongs to us.

Q:        That’s right.  Because people have been able to move back to their houses after the LTTE have left the area.

A:        But whether the house is there is the question.

Q:        Well that’s true I understand that.  And what condition it’s in.

A:        Have been bombed by the Government.

Q:        I understand.  No I understand, a lot of people’s houses have been bombed and I know what you’re saying.

A:        Especially if it has been used by the boys it will definitely be bombed and finished off.

Q:       I understand.

33                  When this evidence is read together with the following extract from the transcript, the Tribunal’s conclusions on the situation in Point Pedro are shown to be so confusing that they must stem from either misinterpretation or misunderstanding:

THE INTERPRETER:  Army?  You mean in Point Pedro?

MR THOMPSON:  Yes.

THE INTERPRETER:  Yes, they are camped most there.

MR THOMPSON:  It is now there?

THE INTERPRETER:  Well, after that it was not there because LTTE had captured everything.

MR THOMPSON:  But Jaffna has been cleared for several years now.

THE INTERPRETER:  Yes, for the past two years what will under that be.  It is under their control.

MR THOMPSON:  So, why did you say that you could not go back to Point Pedro and that it had not been cleared to the Department of Immigration?

THE INTERPRETER:  Well, I did not say that it had not been captured.

MR THOMPSON:  Tell me why you cannot go back to Point Pedro?

THE INTERPRETER:  You mean to Point Pedro?

MR THOMPSON:  Or to Jaffna?

THE INTERPRETER:  Well, my home town is Point Pedro.  Well, Point Pedro I left because LTTE took me and harassed me and mistreated me.  That is why I left.

MR THOMPSON:  Yes, but they are no longer in Jaffna.  Why can you not go back?

THE INTERPRETER:  Why they not there.  [This statement seems in fact to be a rhetorical question: “Why are you saying that they [LTTE] are not there?”]  Even the brigadier, they shot him dead.

MR THOMPSON:  So you say they are still operational?

THE INTERPRETER:  Yes.

MR THOMPSON:  You would be able to get your properties back, would you not?

THE INTERPRETER:  Any property I had I have given to my children.  Well, after that – boys they took the house.

MR THOMPSON:  Yes, they took the house but you would own it legally.  The Tigers would not be allowed to own your house.

THE INTERPRETER:  Well, also Tigers will not be able to keep.  If a house had been occupied by Tigers, well, this house will be bombed and it will be treated as a house occupied by Tigers.  This is what is happening there.

MR THOMPSON:  You did not answer my question.  I said you would own that house if it is still there, would you not?

THE INTERPRETER:  Well, if it is there well, not to me because I have already given to my children.

MR THOMPSON:  Well, your children would own it.

THE INTERPRETER:  Well, you mean house, land?

MR THOMPSON:  Yes.

THE INTERPRETER:  Legally?

MR THOMPSON:  Legally.

THE INTERPRETER:  Not practically.

MR THOMPSON:  Well, I do not understand “not practically” because the Tigers are not there from day to day.

THE INTERPRETER:  The Tigers are there or they maybe even given to someone.

MR THOMPSON:  You did not give them the title deeds, did you?

THE INTERPRETER:  Well, they took it.

MR THOMPSON:  They took your title deeds?

THE INTERPRETER:  Well, when we left we gave the title deed and other things and that is how we came this way.

MR THOMPSON:  So, are you or are you not or are your children – do your children own the properties in Point Pedro or do they not?

THE INTERPRETER:  Well, according to the Sri Lankan law it is in their name or ownership but these persons who benefit have given to their people and how could one get all this back.

MR THOMPSON:  Well, I do not think the Tigers would be going into the Sri Lankan courts.

THE INTERPRETER:  No, but there is no court there.

MR THOMPSON:  No.  You could ask the military but - - -

THE INTERPRETER:  Well, there is no municipality.  Even the mayor has been shot dead.

34                  In other words, his own house has or may have been bombed by government forces.  In theory the re-establishment of government control in Point Pedro might mean that the house block and another block of land handed over to or taken by the LTTE when he left for Trincomalee is able to be recovered.  Moreover, according to Sri Lankan law, the applicant’s children would still own these places.  It would, however, be reasonable to assume that as they had been occupied by the LTTE, they had been damaged or destroyed by the army. (Elsewhere he said that this had been indicated to him by his friends.)  I can find no inconsistency and nothing misleading in this evidence.  All of it supports the applicant’s assertion that the LTTE was still in Point Pedro and that he probably has nothing there to return to.  The Tribunal’s statutory obligation is to examine the evidentiary material and find facts.  If evidence is to be rejected as untrue, there must be something more than the Tribunal’s feelings or predispositions about it.

35                  The availability of property for the applicants to live in, or to sell to provide alternative shelter, a capacity to sustain themselves in Point Pedro, and their ability to live in safety there, were vital matters to investigate.  Although it was open to the Tribunal to have rejected the applicant’s possibly extreme belief, expressed elsewhere, that the LTTE may have planted mines around his properties, it was in my opinion not open to the Tribunal to simply choose a town and then find that the applicants could relocate there without finding the necessary facts to sustain that conclusion.  The Tribunal’s statement that:

There is no reason to believe he has any other significant problem with the Sri Lankan authorities apart from his claimed problem in Trincomalee …

was, in a small country at war with itself, an unacceptably simplistic conclusion unless the evidence was available to give it meaning.  The Tribunal identified no such evidence and I have not been able to find any.  The applicant might not have a “problem” in many parts of the country but that may be because he has never lived there or not done so in many years.  If he has no property or funds and capacity to earn income in a place, he and his wife cannot simply turn up in a town somewhere and hope to live there serenely and safely.  Sections 476(1)(g) and (4)(b) and 430(1)(c) and (d) impose obligations upon the Tribunal in this respect which have not been met.

Colombo

36                  The applicant stated that he had no relatives or contacts in Colombo, nor had he ever worked there.  His passport contains, in case of emergency, the name and address of a man in Colombo who he described there as his brother-in-law because it was easier to do so than to explain that this man was his son's father-in-law.  In his fourth statement the applicant said that he was not a personal friend of this person and that in any case that man was awaiting a decision as to whether he could move to the USA.  In his third statement he stated in relation to relocating to Colombo:

…I cannot survive in a place like Colombo.  I have no where to live, no contacts, no employment, no family and no property.  I do not speak fluent Singhalese [sic].  My identity card lists my place of birth as Inuvil, Jaffna, the LTTE stronghold.  Financially, I cannot survive without working and do not have the resources to establish a medical practice in a Singhalese [sic] area where I do not have resources, family or connections.

37                  Having set up and then accepted the Jaffna option in what in my view can only be considered as a confusing almost semantic quibble, and having apparently found the problems surrounding Point Pedro as too difficult to address, the Tribunal then dismissed the Colombo proposition without any explanation at all.  Even the issue being debated was not made clear.  The question was whether Point Pedro or Jaffna or Colombo or somewhere in the central region would be safe for two ageing retired Tamils who had been suspected by both sides of the conflict of links with the other.  This may be a life and death question, not to be determined by drawing an unexplained link between a mistaken understanding of evidence about a pension and whether a man who had been out of Sri Lanka for more than two years said or knew that the LTTE were still operating in Point Pedro or not and what was the extent of government control of the town.

Link between the pension and relocation

38                  The Tribunal did not even address, still less explain, the route it took from its rejection of the pension evidence to its concerns about the reasonableness of relocation, except to say that the applicant’s pension would amount to more than the average per capita income in Sri Lanka and that this money and his property assets would be sufficient to provide for the basics of life in Sri Lanka on a standard of living similar to the one they had left.  As I understand the material, it was not the applicant’s case that relocation was not possible because he did not have an entitlement to a pension.  He was answering questions about the pension as a discrete issue.  As the Tribunal did not put the link to him, he was simply not given the opportunity to deny it.  Moreover, even assuming that the Tribunal’s findings in this respect were supported by evidence – and, as far as I have been able to ascertain, they were not – I cannot see the link myself.  One link could have been that if the applicant was lying about the pension, he might be lying about the dangers of Point Pedro.  There are two problems with this conclusion.  One is that the Tribunal did not say so.  The second is that without more, including putting the assertion to him, it is drawing a very long bow indeed.  The Tribunal said that while his house in Point Pedro may have fallen into disrepair, it would still be an asset.  On what evidence this extraordinary conclusion was based was not identified.  The evidence at least threw doubt on whether the house still stood.  Whether it did or not, there was at least a doubt whether it could be accessible or of any use to the applicant.  What value it might have possessed was not stated.  Relocation is

potentially a major or significant issue in this case.  Yet the Tribunal did not explain how it reached its findings on these critical matters at all. 

39                  The delegate was unable to find any deception of the department.  In my view, the Tribunal’s reasons for judgment do not make out a reasoned case of misleading the department, and therefore form a basis for rejecting the applicant’s credibility.

2.  Circumstances of the applicant's arrest and detention in 1996

40                  It was approximately six weeks before he left Sri Lanka that the applicant faced what the Tribunal considered were his principal problems with the Sri Lankan authorities, namely during the incident in April 1996 which, if it occurred, involved his detention following the shooting of the village headman.  In this connection, the Tribunal remarked:

…it is rather surprising that the aged applicant was taken into custody as he was quite well known in the community in spite of his rather misleading claims that he was "new" in Trincomalee.  In fact he had lived in Trincomalee for over four years.  He was not questioned about what he was doing but instead he claims he was taken before a row of masked Tamil militants.  He does not suggest that they had witnessed the shooting.  His evidence does not appear to be consistent with an investigation of a murder but more with a general security clampdown.  The circumstances around this claimed shooting and how it was investigated by the authorities raised doubts for the Tribunal.

Further if the shooting did spark a general security clampdown, then it is surprising that the applicant received particular attention as he had not previously had problems with general security arrangements in Trincomalee in spite of having lived in the city for over four years.

41                  This part of the determination is especially difficult to follow.  I can see nothing inherently doubtful or inconsistent in this aspect of the applicant’s account.  It again gives the impression that the Tribunal formed its conclusion and then worked back to the facts and fashioned them around it.  In a civil war situation involving a significant amount of killing, torture and other human rights abuse, nothing should be, as the Tribunal called it, “surprising”.  It is peculiarly unsurprising that after the murder of a government official, a Tamil identity with past suspected links to the LTTE – especially a medical practitioner who might be expected to know and hear much about local residents and events – might be thought to possess information that could help identify the perpetrator(s) of the crime.  That he was paraded before masked or hooded militias apparently supporting the government, is also hardly surprising when fear and intimidation are often among major methods of operation employed by combatants in civil wars.  It is not surprising that the applicant did not allege that his captors had witnessed the shooting.  The question, how would he know, would have been asked if he had said that they did.

42                  The Tribunal found difficulty in accepting that the EPRLF had both identified him as a LTTE supporter and also arranged for his release.  The decision of the Tribunal stated:

He claimed that it was a different member of the Tamil militants and that he could not identify the people who were masked.

43                  I am not sure what the Tribunal had in mind by that statement.  Because the applicant presumably could not identify those who were masked but apparently saw or knew the person who helped him leave, it seems certain that the member who arranged for his release was not one of the masked members unless he had in the meantime removed his mask.

44                  The Tribunal’s suggestion that the applicant’s apprehension was more consistent with a general security clampdown than the investigation of a murder, put it in the shoes of crime investigators or security officials in Sri Lanka in 1996.  These are expert roles which are not for speculation by persons possessing neither evidence nor, presumably, qualifications to sustain.  In any event, it somewhat begs the question to be answered which is whether his fears were due to a Convention reason.  The Tribunal’s conclusion that if security concerns brought about the applicant’s arrest, it is “surprising” that he “received particular attention” as he had been largely free of security problems during his four years in Trincomalee, appears to me to be unsustainable in the absence of any evidence to support it and a body of evidence to contradict it. 

45                  Notwithstanding its use of the terms “surprising” and “doubts” – for this is not a discussion about words as such -- the Tribunal’s judgment in this respect was in fact a complete rejection of the whole assertion by the applicant that he was apprehended at all on this occasion.  The murder of a government official in Trincomalee would most likely have been reported and recorded.  It could no doubt be proved one way or the other.  It is not unlikely that actions taken to investigate the murder were also noted, even in local newspapers.  There may be evidence that a number of people were taken into formal or informal custody as a consequence.  Even if there was a “general security clampdown”, its coincidence in time with the killing may have established a link between the two or shown that they were unconnected.  With such potential for egregious error, it is not sufficient for a fact-finding body simply to state its “doubts”.  If it was intending to disbelieve the applicant’s account on a material matter and therefore to brand his statement as an untruth on oath, it was in my view incumbent on the Tribunal to state its concerns to the applicant, take his response and, if the response was rejected, give reasons for its rejection.  So far as I have been able to glean from the material, the Tribunal did not do so in this instance.  In my view, therefore, breaches of sections 425(1), 430(1)(c) & (d), and 476(1)(a), (c) and (g) and (4)(b) occurred.

3.  Inconsistency in relation to description of place of detention

46                  The respondent submitted that the strongest reason to reject the applicant's evidence arose in relation to his description of his place of detention, previously noted, as either a house controlled by the army or an army camp.  The Tribunal stated in its reasons:

The Tribunal is of the view that it is unlikely that the Tamil militant would be able to see the applicant alone in his cell in an army camp and to organise for his release after receiving a bribe.  This might be possible in relation to a house under military control.  However there were further problems with the applicant's account of his detention.

Two such problems were perceived discrepancies in his description of the place of detention and the number of his interrogators.  As to the first of these matters, the Tribunal said:

This reference to an "army camp" when referring to a house controlled by the army could be explicable in terms of difficulties in interpretation.  However the Tribunal is of the view that the applicant changed his evidence in order to give a plausible explanation of how he managed to get released and of the role of the Tamil militant in negotiating his release from the camp.  It was only after the hearing date that the applicant gave the explanation about the special use of the term "army camp" in Sri Lanka.  The possibility that the applicant was being inconsistent is also increased by his description of the camp as being "in" Trincomalee…[at the second hearing whereas at the first hearing he had described it as being "near" Trincomalee]

The Tribunal then added:

Of course here again the difficulty may have arisen because of an interpretation problem.

47                  The exchange which took place between the applicant and the Tribunal member at the first hearing in relation to this issue commenced with the applicant stating to the Tribunal that

a Tamil militant came and told him that if he paid the bribe and left Trincomalee he would certainly be released.  The exchange then went as follows:

MR THOMPSON:  So the Tamil militant came into your cell and said this to you?

THE INTERPRETER:  Yes.

MR THOMPSON:  So the Tamil militants walk around the army camp without any escorts, do they?

THE INTERPRETER:  They are joined with the army people.

MR THOMPSON:  Yes, I just find it highly unlikely that a Tamil militant can walk into your cell and make this offer.

THE INTERPRETER:  Then only they can come and ask for money.

MR THOMPSON:  So you are saying to me that the Tamil militants can walk around the army camp without any escorts from the army?

THE INTERPRETER:  This is not in the army camp.  It is a cell.

MR THOMPSON:  Where were you detained?

THE INTERPRETER:  There are certain places to keep people like this.

MR THOMPSON:  And where were you taken?

THE INTERPRETER:  It is near the Trincomalee town.

MR THOMPSON:  What, is it a house or is it an army camp?

THE INTERPRETER:  Like a house.

MR THOMPSON:  Why did you say in your statement that you were taken to a cell at an army camp in Trincomalee?

THE INTERPRETER:  This is controlled by army - army.

48                  In his written submissions in relation to this issue, as well as the issue raised with respect to the applicant changing his evidence as to whether the house/camp was "in" or "near" Trincomalee, the applicant’s lawyer argued:

…there was no evidence that the applicant was inconsistent in his use of the terms "army camp" as opposed to "house", and "in" Trincomalee as opposed to "near" Trincomalee, when he was describing the place of his detention by the Sri Lankan security forces in April 1996.  The applicant had only ever said that the place of detention was "like a house" (T1 at 22.3) and he fully explained the use of the terms "army camp" and "house" in his statutory declaration of 26 May 1998…an explanation which was not queried at the second hearing.  As to the use of the terms "in" and "near" Trincomalee, it is clear that the applicant used these terms interchangeably to mean the same thing…There is no material difference in the use of the terms, and therefore no material "inconsistency" beyond semantics.

49                  This submission identified two separate problems in the Tribunal’s approach to this matter.  The first was its apparent surprise at (more appropriately, scoffing at or disbelief and thus rejection of) the allegation that a Tamil militant could just walk into the applicant's cell and make an offer of release upon payment of a bribe.  No reason was given for this rejection except the Tribunal’s lack of belief in it.  It was not inherently implausible.  As previously noted, rejection without reason of evidence the Tribunal itself regarded as important for the applicant’s case is a relevant error of law.

50                  The second problem concerned the interpretation of the inconsistency which the Tribunal found in this evidence.  The Tribunal’s expressed doubts about the story was met by the applicant through his interpreter: "Then only they can come and ask for money".  I take this statement to mean that such deals can only be organised in the privacy of a cell.  When the Tribunal again rejected the concept that Tamil militants could walk around an army camp unescorted, the applicant replied: "This is not in the army camp.  It is a cell."  This statement was not that where he was situated was not an army camp, but that seeking a bribe could only take place in a cell, not outside in the area he called the camp. 

51                  In my opinion, there were such obvious problems in the translation that no adverse conclusions of the type made were open to the Tribunal on the evidence.  It was certainly not possible to draw from the evidence the conclusion that, without the reason why, the applicant “changed” his description of the place of detention from ‘army camp’ to ‘cell’ to ‘house’ to explain his release and the role of the young “Tiger” in it.  The respondent agreed that this matter was material to the case.  In the absence of an explanation for the conclusion, the nexus between the two cannot be discerned.  Section 476(1)(g) and 4(b) required evidence to support the finding.  Section 430 of the Act required that the reason be given.

4.  Number of people who interrogated the applicant

52                  The Tribunal also raised the inconsistencies between the second and third statements and his evidence to the Tribunal about the number of his interrogators.  It said: 

The Tribunal asked the applicant why he stated that he had been interviewed by five people in the cell in his statutory declaration but had told the Tribunal that he had been interviewed by three people.  The applicant stated that he had forgotten.  In his statutory declaration of 26 May 1998 made after the hearing he gave a different explanation.  He stated that there may have been four uniformed men who would come in two at a time with the other person who was not in uniform.  He always only saw three persons.

53                  The Tribunal’s conclusions on the point were:

…his evidence on these important issues was vague and inconsistent and his explanation was not convincing.  While his explanation does give an account of the inconsistencies in his evidence it leaves unresolved the issue of why he was not clear in the first place and why he did not explain this problem at the hearing.

54                  This event took place in April 1996, fully two years before the Tribunal hearing.  As previously noted, the applicant was at the time 75 years old and was probably suffering early dementia.  If this event took place at all, it must have been quite frightening to him.  It does not strike me as a satisfactory procedure or conclusion to reject evidence because of a possible minor discrepancy in the number of interrogators or persecutors to whom he was exposed.

55                  More relevantly for present purposes is the state of the actual evidence.  The inadequacy of the Tribunal's reasons for the rejection of the applicant's evidence on this point is demonstrated by comparing what he actually said on this matter on the various occasions (see para 5 #12).  These statements, and the Tribunal’s depiction of his reply as that “he had forgotten”, must be compared with the actual evidence on the subject:

MR THOMPSON:  Well, why did you put in your statement that you were interviewed by five people, not three people?

THE INTERPRETER:  My age – I cannot remember everything.  I have difficulties nowadays remembering things.

56                  A true discrepancy cannot be said to exist where the information given is not declared as unequivocal, but approximate, when even taken literally there is a difference between people who come into a cell and people who interrogate, when the occasion was not one for the detainee to note or precisely count the number of people who were coming and going from time to time, and when advancing age may well provide the necessary explanation for any ambiguities.  The applicant may have been lying.  If so, such a finding must be based on evidence.  In my view the evidence did not support and could not reasonably be found to contribute to an adverse conclusion to this effect.

5.  Applicant's claim that he was new to Trincomalee

57                  The applicant's claim in the first statement that his surgery was searched and that he was arrested because he was a Jaffna Tamil who had “recently” moved from Jaffna was doubted, in effect dismissed, by the Tribunal on the basis that at the time the applicant had been in Trincomalee for over four years.  Although it agreed that there may be different cultural or linguistic understandings of "recent", the Tribunal believed that:

…the applicant in this declaration was attempting to create a profile and a reason for his arrest which he did not have…The Tribunal is of the view, that it is more likely that the applicant would have been considered in Trincomalee a trusted member of the community especially as he had been a public servant for 25 years.

58                  The applicant provided the Tribunal with an explanation for this statement at the second hearing where he said that he was "…a newcomer in the sense I was not born and bred [in Trincomalee]".  This explanation opened the possibility of such a difference in language and culture that, in the eyes at least of the Tamil militants who arrested him, the fact that he had been a member of the community in Trincomalee for just four years would have been irrelevant.  He had never been a public servant in Trincomalee, let alone for 25 years.  Because he had emanated from Jaffna, as his identity papers showed, he might always be considered a suspected outsider, not a trusted local.  The Tribunal apparently gave no consideration to this possibility and again appears to have reached its conclusion first and then fitted it into the evidence.  Neither the transcript nor the reasons for judgment give any hint that the Tribunal examined the veracity of this possible linguistic and cultural explanation for what it found to be a deliberate lie.  This procedure manifests an error of law in the respects previously identified.

6.  Whether the applicant paid a bribe to the LTTE

59                  The Tribunal concluded that there was inconsistency or at least ambiguity in the first statement that the applicant was to pay a Rp 50,000 bribe arising from his detention in 1995 by the LTTE.  The Tribunal found the applicant's evidence confusing because if he had paid the money, his later evidence to the Tribunal was misleading, and if he had not paid the bribe, it is unlikely that he would have been allowed to leave detention on a promise to pay.

60                  In his first statement the applicant said:

They gave me time to make arrangements to leave Sri Lanka for good after paying SLR 50,000.

61                  The applicant said in the second statement that he had not acted on his promise, despite the LTTE's belief that he would pay them, as he did not have the money.

62                  At the first hearing the applicant stated:

I told them I will pay 50,000 rupees, Sri Lankan rupees.  I did not give the money to them.  If I go back they will definitely ask me this money and also the treatment of the - I told lie, I will pay the money 50,000, but I did not pay. 

Later during the hearing, the Tribunal asked the applicant:

Why did you say in your statement that they gave you time to make arrangements to leave Sri Lanka for good after paying 50,000 Sri Lankan rupees?

To which the applicant responded:

…

I did not pay the money

63                  At the second hearing, the matter was brought up by the Tribunal on three further occasions, each time by putting to the applicant that he had stated to the LTTE that he would pay them an amount of money.  On one of these occasions, the interpreter reported the applicant as stating that:

…I said that I would give 50,000, and I simply mentioned the thought I had at the time. 

The interpreter added, possibly for himself (in view of the greatly improved language):

Well, I think there are problems arising from the linguistical usage of the language.  I think that creates a different impression.

To which the Tribunal responded:

Well, that can happen.  The trouble is we can get too many and then it is a question of whether I should believe anything you say.  Do you understand why it is important?

The applicant answered:

Well, I said that I would give but the way it has been written it creates some misinterpretation.

64                  Despite the applicant's persistence that he had not paid the bribe, the Tribunal erroneously took the original statement to mean that he had paid it, after which he was given the time to leave.  In the light of his evidence read in context, it is clear that the applicant was summarising the conditions of his release from detention, not stating that he had paid the bribe.  Yet the Tribunal concluded:

The Tribunal is not satisfied that the applicant is of interest to the LTTE or that he owes them 50,000 SLR.

I can find no justification in the evidence for a conclusion that the applicant ever claimed to have paid the bribe.  In fact, the Tribunal’s concession that the evidence was "ambiguous", and the respondent’s submission that it was "confusing", support the view that the conclusion that this was an inconsistency throwing doubt on or adversely affecting the applicant’s overall credibility was extreme and evidentially unjustified.  It was particularly erroneous to join this “ambiguity” with other alleged inconsistencies and use the agglomeration to reject everything the applicant was alleging.  In my view, the evidence did not establish that because he managed to leave Sri Lanka, the bribe must have been paid.

 

7.  When the applicant went to Colombo to obtain his visa

65                  As previously noted (para 5 #14), various slightly different dates were given by the applicant as to when he went to Colombo.  On the separate issue as to when this was in relation to his release from detention, the Tribunal criticised the applicant for describing this period as being three days later when if the rest of his evidence was accepted, it would be

around three weeks later.  In fact the transcript demonstrates that this supposed inconsistency did not exist:

MR THOMPSON:  So, when you got released, when did you go down to Colombo?

THE INTERPRETER:  When they released.

MR THOMPSON:  How long after being released?

THE INTERPRETER:  About three days later.

MR THOMPSON:  So, if you were taken into custody in April 1996 when did you go to Trincomalee – to Colombo, sorry.

THE INTERPRETER:  Next month, May.

MR THOMPSON:  So, it must have been early May?

THE INTERPRETER:  Yes.

 

This evidence shows that the applicant was apparently confused by the questioning and in fact thought that the Tribunal was asking him how long after his detention that he was released.   In the third statement, the applicant explained that his confusion about the dates was due to his poor memory.  While describing some of these accounts as vague and uncertain, the Tribunal determined that they were apparently wilful inconsistencies but did not explain how that conclusion was reached, why they were important and what the applicant gained or could have expected to gain by them as deliberate deceptions.  The respondent could not and did not suggest any reasons and I cannot think of any.

8.  Length of alleged detention in April 1996 and proximity to departure

66                  According to the applicant, his detention by militants supporting the government in April 1996 occurred just six weeks before he left the country and only shortly after he told the LTTE that he was leaving the country.  The most significant finding in this respect was the Tribunal’s statement that:

The timing of the alleged detention by the Sri Lankan authorities is itself suggestive that it may have been concocted.

The Tribunal went on to say:

The applicant had not had any major problems with Sri Lankan authorities for many years before leaving Sri Lanka. 

If the events in April 1996 occurred, he had major problems a month before he left, which greatly influenced if not brought about his decision to leave.  The Tribunal continued:

 

He told the Tribunal he had experienced no problems during security checks in Trincomalee prior to this claimed incident.  It is somewhat surprising that his problems should arise some six weeks before he fled the country for good and shortly after he had told the LTTE that he was leaving the country.

67                  In order to prove a genuine fear of persecution, a person does not, and should not, have to be a longstanding target of persecutors who are not known to have any policies about the length of time a person is to be of concern to them before deciding to threaten the person's life.  Nor do persecutors fix the time of their persecution by reference to other events in their intended victim’s life.  There is no such logic in persecution.  In any case the applicant’s evidence was that prior to his problems with the Sri Lankan authorities six weeks before his departure, he had been subjected to continuous harassment by the LTTE.  This is not a matter of something being “somewhat surprising”.  The Tribunal simply disbelieved the April 1996 detention, and found it to be concocted because it was too coincidentally close to the applicant’s departure from the country.  When else might someone leave than just after a particularly severe and terrifying act of persecution?  No evidence for the conclusion was cited.  My reading of the material convinced me that it did not exist.  The Tribunal’s suspicions may have been correct but a conclusion that they were cannot be whimsical.  It must be soundly based and explained.

Conclusion

68                  I accept and agree with the many statements in the authorities that it is not appropriate to attack the Tribunal’s reasons with what might be summarised as an ‘over–zealous eye keenly attuned to the detection of error’.  But it is surely no less appropriate that the Tribunal not reject an applicant’s credibility, and find an intention to practice deliberate deception and fraud, on personal whims or a pedantic or over–harsh view of inconsistency when the discrepancies are slight, understandable and readily explained on some innocent ground.  Certainly it is for the Tribunal to determine the facts.  Certainly it does not have to state every reason for every fact found.  But in my view, the integrity of the statutory regime requires that evidence support its major findings, that applicants be given their statutory entitlement to present evidence and argument on crucial issues by having them identified and raised, and

that its determination expose or reflect the manner in which it has approached its task and the ways in which and reasons why its principal conclusions have been reached.

69                  Except for those found without reasoning the matter at all, the Tribunal reached its "concoction" conclusions based upon a comparison between evidence given on different occasions.  Normally a finding of deliberate fraud requires something more than misunderstandings, minor discrepancies, possibilities and doubts about the logic of conduct by antagonists engaged in a civil war which is “surprising” to foreigners far removed from the conflict.  Yet this extreme conclusion was reached, so far as the Tribunal’s written reasons disclosed, on the basis not of evidence but the Tribunal member’s own very personal reaction to allegations which were not inherently unlikely or far fetched.

70                  If proceedings before the Tribunal attracted the protections, safeguards and capacity for analysis familiar to our traditional systems for ascertaining truth in litigation, this process may have been acceptable.  Without them, for the reasons given and in the ways identified and to the extent made possible by the Tribunal’s reasons for judgment, my examination of the evidence and other material has produced nothing, in the relevant and material context of the applicant’s overall claims, to sustain these conclusions.  The concoction findings were, in my opinion, not open on the evidence or not explained, or both, and were thus legally erroneous.  This decision by the Tribunal was, in the respects indicated, thus so seriously infected by legal errors that the applicant cannot be said to have received the attention to and consideration of his application, and the reasons for rejecting it, which the Parliament has prescribed. 

71                  The application for judicial review is granted.  The Tribunal’s decision is set aside and the matter remitted to the Tribunal for a fresh hearing to be conducted by another Tribunal member.  The respondent will pay the applicant’s costs.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld.

Associate:

Dated:              19 November 1999

Counsel for the Applicant:	Mr N. Poynder
Solicitor for the Applicant:	Craddock Murray Neumann
Counsel for the Respondent:	Mr D. H. Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 June 1999
Written submissions completed:	11 June 1999
Date of Judgment:	19 November 1999