FEDERAL COURT OF AUSTRALIA

Ismail v Minister For Immigration & Multicultural Affairs

[1999] FCA 1555

MIGRATION – REFUGEES – application for review of decision that the applicant was not a person to whom Australia owed protection obligations – errors in interpretation of applicant’s evidence given to Tribunal – whether applicant given an adequate opportunity to appear and give evidence to the Tribunal – whether errors in interpretation affected Tribunal’s decision.

Migration Act 1958 (Cth), ss 5, 65, 412, 425, 476

Migration Regulations 1958 (Cth) r 866.221

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 cited

Perera v Minister of Immigration and Ethnic Affairs [1999] FCA 507 cited

G S Goodwin-Gill, The Refugee In International Law (2^nd ed. Clarendon Press, Oxford, 1996)

J C Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991)

SAROJINI DEVI ISMAIL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

LEE J

10 NOVEMBER 1999

PERTH

THE COURT ORDERS THAT:

1.      The decision of the Refugee Review Tribunal be set aside and the matter remitted to the Tribunal for determination according to law.

2.      The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) refusing the applicant a grant of a Protection Visa under the Act.

2                     The applicant and her husband arrived in Australia from their country of origin, Sri Lanka, on 28 September 1996.  Each had a return air ticket to Sri Lanka.  The visas endorsed in their respective passports permitted multiple travel to, and a right to remain in, Australia for six months from the date of each arrival but required that they must not arrive in Australia after 25 August 1997.

3                     At the time the applicant and her husband arrived in Australia it seems the elder of their two sons resided in Australia.  He was 30.  The applicant also had a brother and a sister who resided in Australia.

4                     Both the applicant and her husband are Tamils, but follow different religions.  The applicant is Hindu and her husband is of the Muslim faith.

5                     On 24 March 1997 the applicant made an application under the Act for the grant of a Protection Visa (866).  Under s 65 of the Act and reg 866.221 of the Migration Regulations 1958 (Cth) a criterion for the grant of a Protection Visa is that the respondent (“the Minister”) be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Section 5(1) of the Act defines the Refugees Convention as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Refugees Protocol as the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

6                     As a signatory to the Refugees Convention and Refugees Protocol Australia has protection obligations to a person who comes within the terms of those instruments.  A refugee is defined in the Refugees Convention as, inter alia, 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”.

7                     It was the applicant’s case that subsequent to her arrival in Australia Sri Lankan authorities had learned of conduct she had engaged in before she came to Australia in 1996 from which the authorities would conclude that she held political opinions that supported the aims of the Liberation Tigers of Tamil Eelam (“LTTE”), and she feared persecution if required to return to Sri Lanka.

8                     When the applicant lodged her application for a Protection Visa it was accompanied by a covering letter, the material part of which read as follows:

“I am seeking the refuge in Australia which has protection obligations under the Refugee Convention as amended by the Refugee Protocol.  At this stage I am only lodging the protection visa application form with some documents to prove my ethnic group and nationality.  The reason for this is that my current visa expires on the 27^th March 1997.  I understand that there is a detailed statement that I have to provide on my application form.  To prepare this document I need assistance from a Legal Aid Officer.  I therefore request you to grant me a reasonable time to forward my detailed statement with the help of a Solicitor.

The problems and sufferance experienced by the minority Tamils in Sri Lanka is well known to the Australian authorities.  The Sri Lankan Government is not prepared to accept any of the LTTE proposals for a negotiated political settlement but continues to proceed with the military approach while convincing the world that they are prepared to negotiate with LTTE using censorship of the press and media as a weapon.  The human rights organisation such as the Amnesty International, the Red Cross, etc., are the only means of access to Tamil areas here the Sri Lankan Government systematically tortured and murdered innocent Tamils and suspected LTTE members while blaming the ‘tigers’ for the above acts.

The Tamils living abroad, who had managed to escape the atrocities of the Sri Lanka Sinhala Government fear for their safety because of their Tamil ethnicity and their political opinions.

I fear to return to Sri Lanka and know that if I am forced to return I will be detained by the Sri Lankan authorities and its associates for the following reasons.

·        I belong to the Tamil ethnic group.

·        I am a sympathiser of the Tamil political party.

·        The Sri Lankan authorities di not know my political opinion before I left my country.

·        Whilst in Australia, the authorities have come to know of my family’s leanings towards the claims of my ethnic group in Sri Lanka.

Inquiries from friends and relatives back home have revealed to me that it is not advisable for me to go back to Sri Lanka.  The armed forces have already searched my home in Matale which means that a tip off has been given as to my anti government activities.

I am a Sri Lankan Tamil and I fall under the category of a refugee defined by the 1951 United Nation Convention relating to the status of refugee as amended by the 1967 Protocol.  The detailed statement will explain the reasons for my fear of being persecuted for reason of race, religion and nationality, membership of a particular social group or political opinion.”

9                     On 22 May 1997 the applicant provided a written statement in support of her application.  The statement included the following:

“My claims to be a refugee is based on a well founded fear of being persecuted for reasons of race (Tamil), membership of the Tamil Political Party and its opinion.

The following are the details of my membership of the political party:

I joined the Tamil United Liberation Front (TULF) Matale Branch in May 1994.  I had a membership card which I did not bring due to Airport Security reasons.  I believe the Army would have taken it with them when they searched my house after my departure to Australia.

The Party does not use violence and it is a legal political party.  The aim of the party is to form a federal state in the Tamil area.  The objectives are equal rights to the Tamil speaking people.

I supported the party policy till December 1995.  At this time, I came to know that this party had changed its concepts because the party supported the Government to liberate Jaffna without considering Tamil Civilian security.

In early 1996 I was informed that I had to meet a member of the LTTE.  I met a young man who knew all about my background and the atrocities my family suffered during the July 1983 riots.  I was requested by him to distribute reading materials among the well wishers and friends of the Tamil community in Matale.  The reason I agreed to co-operate with him is because I am a sympathiser of the Tamil cause and this was a non violent activity.  Each week or once in two weeks they posted reading material to me the contents of which I shared with the Tamil sympathisers and my close friends and relatives.  The contents of the leaflets were on the sufferings of the Tamils in the North.  This type of information is not reported in the newspapers or in the other mass media due to the censorship to the public in the South.  I destroyed these leaflets immediately after the contents were read.

After my arrival in Australia, my enquiries from my friends and relatives reveal that I cannot go back and escape.  My son who was in the South Matale had been taken by the police.  My son knew my links with LTTE and the distribution of leaflets.  He was tortured and therefore gave details of my association with the Tigers.  My son was released because he was away from the country for the last five years on condition that he should not relocate without police permission.

The following are my reasons for my active participation in the Tamil Cause.

1.      First and foremost I am a Tamil.

2.      In July 1983 my ancestral home at No. 108, Nagolla Road, Matale was burnt by the Sinhalese mobs.  My brother’s home in Colombo was also burnt.  My youngest sister’s family and my father were displaced from Matale and took refuge in India.  My father died in India.  My brother and his family went to Australia on humanitarian grounds.   Subsequently my sister and her family went to Australia as refugees.  My second brother went to Canada.  All my kith and kin wee scattered in all parts of the world due to atrocities of July 1983.

3.      In 1986 we were compelled to send our son to work on a ship.  He was only 18 years and was in grade 11.  This was done to protect him from the Sinhalese thugs.

4.      In September 1988 my brother from Australia visited us.  Within about 2 or 3 days after he left the Army came to our house and searched the house as someone had given a tip saying that we have LTTE connections and that an LTTE member had visited the house.

5.      We were forced to leave that house due to the above incident and moved to a house in Godapola, Matale.

6.      In 1989 the JVP insurgency was at its peak.  My elder son was an undergraduate at the Peradeniya University.  Universities were closed indefinitely due to riots.  We sent our son to Australia as an overseas student to follow a one year course.  This was done in order to protect him from the Sinhalese.

7.      In September 1990 we shifted to 24 Pullayar Road, Matale which was our last place of residence.  There too we had continuous harassment from the Sri Lankan authorities such as the Village Headman and the police.

All this happened because I belong to the Tamil Ethnic Group.

The following are the reasons why I cannot return to my country.

1.      I am a Tamil female.

2.      I was a member of the Tamil Political Party.

3.      I was associated with the LTTE’s political group in the South for a reasonable period.

4.      I did not abide by the Government’s conditions that any Tamil should not link with the LTTE.

5.      My son gave information about me and my involvement with distribution of the LTTE leaflets.

6.      Distributing the LTTE’s material is a serious political offence under the Emergency Regulations.

7.      I am married to a man from the Muslim community and having two sons, decided to stay out of my home country in circumstances beyond control because I feared death and suffering at the hands of the Sri Lanka security forces.”

10                  The letter of 24 March 1997 and the statement of the 22 May 1997 were typewritten and signed by the applicant.

11                  On the 22 May 1997 the applicant was interviewed by an officer of the Minister’s Department.  Whether the interview was conducted through the services of an interpreter, or recorded and translated thereafter, is not disclosed on the material before the court, although the application for a visa completed by, or on behalf of, the applicant indicated that she could speak, read and write in English.  In an affidavit filed in these proceedings the applicant deposed that she could “only speak or understand English to a very limited degree”.  The affidavit was sworn by the applicant after the contents thereof had been read to her in the Tamil language by an interpreter.  It was not in issue in these proceedings that the applicant needed the services of an interpreter at the hearing before the Tribunal to understand, and to provide answers to, questions put to her by the Tribunal and to support her claim that she was a person to whom Australia had protection obligations.

12                  A delegate of the Minister determined that the applicant did not qualify for the grant of a Protection Visa and refused the application.  The delegate stated that the “evidence” before him consisted, inter alia, of the Department’s file relating to the applicant which included a “taped record of interview”.  Under s 412 of the Act the applicant applied to the Tribunal for review of that decision.

13                  On 11 June 1998 the applicant and her husband appeared before the Tribunal and answered questions put to them by the Tribunal.  An interpreter provided by the Tribunal was present to interpret questions into the Tamil language and to interpret for the Tribunal the responses of the applicant and her husband.

14                  It is conceded by the Minister that the interpreter incorrectly interpreted several of the responses made by the applicant at that hearing.  Counsel for the applicant submits that the errors were of such significance that the procedure followed by the Tribunal at the hearing did not meet the requirements of the Act as it then stood, (s 425(1)(a), and, therefore, an order for review should be made pursuant to s 476(1)(a) of the Act.  Counsel for the Minister submits that the interpreter’s errors did not deflect the Tribunal from performing its task in the manner required by the Act.  It was conceded that if the errors had affected the Tribunal’s reasoning in a material respect there would be ground for review of the decision under s 476(1)(a) of the Act.

15                  In its reasons for decision the Tribunal stated that it “did not find (the applicant) to be a truthful or a credible witness” and then set out the reasons it relied upon to reach that conclusion.  Part of those reasons reads as follows:

“I also found (the applicant’s) evidence regarding her reasons for deciding to support and assist the LTTE in 1996 unconvincing.  She claims that she decided to cease supporting the TULF and then to support the LTTE because she did not believe that the TULF was working for the Tamil people.  However, when I questioned her about her views about the LTTE at the hearing, she described them as a terrible and violent group who were unconcerned about the fate of ordinary Tamils.  I have considerable difficulty accepting that someone who had had no previous involvement with the LTTE would suddenly decide to join them, despite holding these views and being married to a Muslim man and raising Muslim children, all of whom strongly opposed the LTTE and her decision to support it.”

16                  The questions put to the applicant and the answers provided by her as interpreted at the hearing relevant to the foregoing passage appear below.  The corrected interpretation appears in bold type.

17                  It is clear that the views of the Tribunal set out in the passage from its reasons recited earlier were influenced by reliance upon an erroneous interpretation of the applicant’s answers set out above.  The proper interpretation shows that the applicant did not make the statement attributed to her by the Tribunal relied upon by it for the conclusion that the actions claimed to be undertaken by the applicant were inconsistent with her professed views or beliefs, namely, that the LTTE was “a terrible violent group who (sic) were (sic) unconcerned about the fate of ordinary Tamils”.

18                  It may also be noted that the other ground recited in that passage for finding the account provided by the applicant to be unconvincing ends with a non sequitur.  The Tribunal states that it found unconvincing the applicant’s reasons for deciding to support and assist the LTTE in 1996.  By that statement the Tribunal meant, as it indicated later in its reasons, that it did not accept that any such decision or action by the applicant occurred as claimed by the applicant.  In the passage referred to above part of the reason for not accepting the applicant’s account is based on the acceptance of the applicant’s evidence, and that of her husband, that he and both sons “strongly opposed her decision” to support the LTTE.  Perhaps the Tribunal meant to say that it considered it unlikely that the applicant would ever contemplate making such a decision if she knew that her husband and sons would oppose it, but that is not how the reasons are expressed.

19                  Further explanation provided by the Tribunal for its conclusion that the applicant was not a credible witness consisted of the  following:

“I find the claim that the LTTE approached (the applicant) in early 1996 and asked her to distribute information for them implausible.  She claims she was approached because the group knew about her background and the violence which her family had experienced in 1983.  However, according to her own evidence, she had no contact with the group between 1983 and 1996 and no history of supporting the group.  The only political group she supported prior to this contact was the TULF which, as (the applicant) agreed, had nothing in common with the LTTE.  When I expressed doubt about the claim that the LTTE had contacted her in 1996, (the applicant) tried to overcome this deficiency in her evidence by claiming that she had sought out the LTTE after having a change of heart about supporting TULF.  However, this contradicts the evidence she had given previously, when she stated to both the Department officer and to me that she had been approached by the LTTE because they knew about her past problems.”

20                  That passage misstates and thereby misunderstands the applicant’s statements.  In her letter of 22 May 1997 set out above, which, in the absence of any suggestion to the contrary, may be assumed to be consistent with the statements made by her in the interview with the Department’s officer conducted on the same day, the applicant stated that in early 1996 she had been informed she had to meet a member of the LTTE.

21                  The relevant questions put by the Tribunal and the answers given by the applicant are as follows.  The corrected interpretations are set out in bold type

22                  Putting to one side ascertainment of what the Tribunal had in mind in the expression “deficiency in her evidence”, the finding of the Tribunal that the claim by the applicant that she had sought out the LTTE was a claim of recent origin inconsistent with earlier statements made by her, appears to be based on the mistaken interpretation of the applicant’s evidence presented to the Tribunal.

23                  As indicated in the corrected interpretation set out above, the Tribunal was not informed by the interpreter that in answer to the Tribunal’s question, “How did this person know you?” the applicant had included in her answer a statement that a man had taken her to “that place”.  Whether the applicant had completed her answer at that point is not clear but, in the context of the material as a whole, ‘that place’ must be taken to be the place of meeting with the LTTE representative.  That response, of course, was consistent with her statement on 22 May 1997 that she had been informed that she had to meet a member of the LTTE and had done so.  The Tribunal’s mistaken understanding of the applicant’s answer is the only explanation for the Tribunal putting to the applicant the following question “You told me just a minute ago he came looking for you.”

24                  The applicant’s response to that assertion was that a former member of the TULF had taken her to meet the LTTE representative.  That was consistent with her statement in her letter of 22 May 1997 and with her response to the earlier question put to her by the Tribunal correctly interpreted.

25                  It follows from the foregoing that the errors made by the interpreter at the Tribunal hearing were material to the formation of the conclusion of the Tribunal adverse to the applicant and that the applicant was prevented from giving evidence to the Tribunal on matters relevant to her claim to the status of a refugee.

26                  The essential requirement is that the interpretation provided be of sufficient standard to ensure that justice is done, and is seen to be done.  (See: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290-292.)  Errors by interpreters which lead a Tribunal to make adverse findings material to an applicant’s claim will mean that such a requirement has not been satisfied, and ground for an order for review will be made out under s 476(1)(a) of the Act.  (See: Perera v Minister of Immigration and Ethnic Affairs [1999] FCA 507 at para 46.)

27                  Although the Tribunal recited other grounds for finding that the applicant was not “a truthful or credible witness”, material findings by the Tribunal relevant to credit based on errors made by the interpreter cannot be said not to have affected the Tribunal’s overall conclusion that the applicant was not a credible witness.  It would be quite unsafe to conclude that the Tribunal would have reached the same conclusion had its deliberations not been affected by the material findings identified.

28                  Indeed scrutiny of some of the other grounds relied on by the Tribunal suggests that the findings based on an incorrect interpretation of evidence played some part in the formation of an unfavourable view of the applicant as a witness.

29                  For example, in its reasons the Tribunal stated that it had noted the applicant’s statement that her sons “did not follow any religion” and preferred the evidence of her husband who stated that the sons followed his religion.  The application form completed by, or on behalf of, the applicant states that her husband and each of their sons bear the name Mohamed Ismail.  The Tribunal appears to have misunderstood the applicant’s evidence given to the Tribunal at the hearing.  The relevant questions put by the Tribunal and the responses of the applicant are set out below, with corrected interpretation set out in bold type.

30                  It seems reasonably clear that the responses of the applicant were to the effect that the religion followed by her sons would not be relevant to whether there was a risk of attack upon the applicant and her family by Sinhalese, by whom the applicant, her husband and sons would be regarded as Tamils whatever religion any of them followed.  The applicant did not say that her sons did not adhere to the Muslim religion.  In this part of the hearing the Tribunal appeared to be considering whether people of Muslim faith were at risk of attack from the LTTE whilst the applicant’s response was an explanation that the relevant conflict was between Tamils and Sinhalese.  The root of the applicant’s claim was that as Tamils there was always a risk that she and her family would suffer mistreatment at the hands of Sinhalese.  She stated that in 1983 her family home had been attacked and burnt by Sinhalese and, thereafter, her siblings and a parent had to resettle in India, Australia and Canada.  This was the underlying circumstance that gave rise to her fear of persecution by Sri Lankan authorities if she were perceived by them to have a political opinion that tolerated or supported objectives of the LTTE.

31                  Another example of the Tribunal readily perceiving inconsistency in the applicant’s evidence from equivocal material occurs in the reasons of the Tribunal where it states that a claim by the applicant that neighbours who had introduced her to the LTTE had been detained and tortured after bomb blasts had occurred in the Matale area, was not mentioned by the applicant until the hearing before the Tribunal.  The Tribunal stated that it had perused issues of a Sri Lankan publication for the months of February 1997 and March 1997 being a digest of newspaper headlines and commentaries, and had not seen mention of “a bomb blast leading to round-ups or arrests in Matale or elsewhere in Sri Lanka in March 1997”.  The only parts of the  record of the hearing that bear upon this question are the following:

and a statement by the applicant at the end of her evidence:

32                  It is to be noted that it is not recorded that the applicant stated that neighbours “who had introduced her to the LTTE” had been detained and the reference to ‘a bomb blasting’ appears to be a general statement seeking to illustrate how purges by authorities can be set in train.  It was the applicant’s case that the events of detention, torture and identification of the applicant as an LTTE supporter, occurred in March 1997, shortly before the applicant made application for the Protection Visa.  When in May 1997 the applicant stated that her son had been tortured in police custody and had revealed her association with the LTTE and, therefore, she feared that she would suffer persecution if returned to Sri Lanka, it did not follow that at that time she must have known all that had occurred in Matale in March 1997, in particular, that her neighbours had suffered like treatment.  Furthermore, if the Tribunal could conclude that the applicant had said that she had been informed that a ‘bomb blast’ occurred in Matale in March 1997 and a monthly information service providing summaries of headlines and commentaries from major Sri Lankan newspapers did not refer to such an event, it would seem to be drawing a rather long bow to conclude that such an event did not occur and, therefore, that the applicant’s statement that she had been informed that her neighbours and her son had been detained and tortured in March 1997 reflected adversely on her credit.

33                  After the Tribunal hearing the applicant’s son was requested, by message conveyed by a family friend who returned to Sri Lanka from Australia, to provide an account of what had occurred in March 1997.  At that time the son was 27.  He provided a letter to his mother dated 7 August 1998.  The contents of the letter were translated by the Translation Service of the Department and forwarded to the Tribunal.  The letter bore an endorsement by the President of the Board of Trustees of the Jumma Mosque at Matale confirming that the facts set out in the letter were true.

34                  The letter stated that in March 1997 the army had carried out a “cordon and search operation” in the surrounding Tamil area and that on 9 March 1997 police had searched the house opposite the applicant’s residence and arrested occupants.  The son asserted that these persons were beaten and persecuted had given “all information” about the applicant.  On 12 March 1997 police searched the applicant’s house and took the son into custody.  It was stated by the son that the police had claimed that the applicant had assisted “enemies of the Government”.  In response to torture the son had confirmed what was alleged to have been said about the applicant by others taken into custody beforehand.

35                  The Tribunal stated that it considered the statement made by the applicant’s son but “in view of…findings regarding credibility of (the applicant’s) claims” found the statement to be “a self-serving document” to be “given…no weight.”

36                  As explained earlier in these reasons the finding of credibility referred to by the Tribunal is itself unsafe and, therefore, the Tribunal’s treatment of the account provided by the son is affected in like manner.

37                  Finding relevant facts and determining whether a person is entitled to the grant of a Protection Visa are likely to be very difficult tasks for a decision-maker.

“The debate regarding the standard of proof reveals some of the inherent weaknesses of a system of protection founded upon essays in prediction.  It is no easy task to determine refugee status; decision-makers must assess credibility and will look to the demeanour of the applicant.  Information on countries of origin will often be lacking or deficient, so that it is tempting to demand impossible degrees of corroboration.  The applicant’s testimony may seem unduly self-serving, though it could scarcely be otherwise, absent anyone else to speak on his or her behalf.  The onus of establishing a well-founded fear of persecution is on the applicant, and some objective evidence is called for; but documentary corroboration is frequently unavailable or too general to be conclusive in the individual case.”  Guy S. Goodwin-Gill “The Refugee in International Law” (Clarendon Press, Oxford, 2^nd Ed. 1996) at 39.

38                  A person, or Tribunal, performing that function must take considerable care before refusing the application on the ground that it has been concluded that the applicant is “not a credible witness.”  In this case the son, whom the Tribunal accepted was of the Muslim faith, has provided a statement vouched for by a person of apparent authority in Islamic organisation.  By the nature of the application, evidence provided by an applicant for refugee status is self-serving.  To so describe, and dismiss accordingly, corroborative material produced by an applicant is not sufficient to meet the obligation of the Tribunal to determine whether an applicant qualifies for the grant of a Protection Visa.

39                  The task of the Tribunal is to determine whether there is a real risk that an applicant may suffer persecution, as defined in the Convention, if returned to the country of nationality.  As discussed by J.C. Hathaway in the passage from his text referred to below, in some cases, proper performance of that task may not be effected if an application for a Protection Visa is refused solely on the basis that the applicant did not appear to be a credible witness.  It did not appear to be in issue in the instant case that if the applicant had provided some support to the LTTE by receiving and distributing pamphlets on its behalf, and Sri Lankan authorities had knowledge of that activity or believed that she had so acted, there would be a real risk that the applicant would suffer persecution if returned to Sri Lanka.  Therefore, a determination that the applicant was not entitled to the grant of a Protection Visa under the Act could be made only if the Tribunal were satisfied that the Sri Lankan authorities did not, and would not upon the return of the applicant to Sri Lanka, impute to the applicant a political opinion consonant with the aims of the LTTE and persecute her for that reason.  Any apparent lack of candour by the applicant would have to be assessed with all other relevant circumstances to determine whether a real risk of persecution existed.  The Tribunal appears to have overreached that obligation by treating its doubts or misgivings about aspects of the applicant's evidence as grounds for finding that the applicant had presented a fraudulent application that required no further examination.

40                  In the absence of objective material which shows a claim to be fraudulent, and in this case that the applicant and her husband and son were participants in such a fraud, a Tribunal must exercise great caution before drawing inferences from perceived inconsistencies in the evidence of an applicant where those inferences are relied upon to discount the applicant’s credibility and, for that reason, to refuse the application for a Protection Visa.

41                   The following comments, although directed to the operation of the system for determination of refugee status in Canada, have relevance to the method of such determination used under the Act.

“First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority.  They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state.  The past practice of the Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with the testimony given at the hearing is thus highly suspect, and should be constrained in the contextually sensitive manner discussed previously in Chapter 2.

Second, it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant’s testimony.  A claimant’s credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution.  Because an understandable anxiety affects most claimants compelled to recount painful facts in a formal and foreign environment, only significant concerns about the plausibility of allegations of direct relevance to the claim should be considered sufficient to counter the presumption that the sworn testimony of the applicant is to be accepted as true.

…Ultimately, however, even clear evidence of a lack of candour does not necessarily negate a claimant’s need for protection:

            Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.”  Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case.  Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”

Given the objective focus of the Convention definition, the purpose of eliciting evidence from the claimant herself is not to ascertain whether she harbours a subjective fear of return.  Rather, it is to establish how circumstances in the homeland impact on her own security, and why she feels compelled to seek protection abroad.”  J C Hathaway The Law of Refugee Status (Butterworths, Toronto, 1991) at 84-86 (footnotes omitted).

42                  It is unnecessary to consider the second ground for review relied upon by the applicant, namely, whether under s 476(1)(g) of the Act there was no evidence or other material to justify the making of the decision.

43                  It is not obvious that an order for review would lack utility in that if the Tribunal were required to reconsider the material presented in support of the application the Tribunal would have to determine that the application be refused.  Therefore, the decision of the Tribunal will be set aside and the matter remitted to the Tribunal for determination according to law.

Associate:

Dated: