FEDERAL COURT OF AUSTRALIA

Xavier v Minister for Immigration and Multicultural Affairs [2000] FCA 927

MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal erred in law in making adverse findings against the applicant’s credibility – whether requirements of s 430(1) complied with - whether decision affected by actual bias

Migration Act 1958 (Cth) s 430, 430(1), 476(1)(b) and 476(1)(f)

XAVIER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 685 of 1999

JUDGE:          MERKEL J

PLACE:          MELBOURNE

DATE:            29 JUNE 2000

The Court orders that the application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant in this matter seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”), handed down on 12 November 1999, that he is not entitled to a protection visa.  The applicant, a citizen of Sri Lanka, arrived in Australia on 7 February 1996.  He lodged an application for a protection visa under the Migration Act 1958 (Cth) (“the Act”) with the Department of Immigration and Multicultural Affairs on 30 April 1997.  A delegate of the Minister for Immigration and Multicultural Affairs refused the grant of a protection visa and on 28 May 1997 the applicant sought a review of that decision by the Refugee Review Tribunal.  The Tribunal affirmed the decision not to grant a protection visa to the applicant as it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”).

2                     The Tribunal in its reasons set out in considerable detail the basis for the applicant’s claim of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion should he return to Sri Lanka, his country of nationality.  In substance the applicant claimed that he had an active role and profile in the LTTE and that as a result of factors that were personal to him, in particular the recruitment of a girlfriend, Ms Subashini, to the armed wing of the LTTE and the investigation by the organisation of a family friend, he came to question his membership of the LTTE and ultimately deserted the organisation.  The applicant claimed that he is afraid of returning to Sri Lanka as he fears persecution from the authorities because of his LTTE involvement.  He also claimed to fear the LTTE and the risk of reprisals because of his desertion from the organisation.  It was therefore central to the applicant’s claim that his role in, and the reasons for his departure from, the LTTE be accepted by the Tribunal.

3                     The Tribunal, for a number of reasons which it set out in some detail, did not find the applicant to be a credible witness.  It stated that whilst it accepted aspects of his story, it rejected the critical aspects upon which the applicant’s claim for refugee status depended.  In particular, the Tribunal made the following finding:

“The Tribunal, given the discrepancies, inconsistencies, implausibilities and lack of congruence of the Applicant's claims with the situation in Sri Lanka, does not accept that the Applicant was ever involved with the LTTE as claimed and that his departure from the North occurred as claimed.  On the basis of these conclusions the Tribunal finds that there is no real chance of the Applicant being persecuted by the LTTE for reasons of his desertion.  Further, on the basis that the Tribunal has found that the Applicant was not a member of the LTTE and has never been of any interest to the authorities, the Tribunal does not accept that the Applicant will be of interest to the authorities on the basis of his alleged LTTE membership should he return to Sri Lanka.”

4                     The Tribunal then went on to consider the risk that the applicant faced should he return to Sri Lanka as a young Tamil male in Colombo.  After considering a number of country reports the Tribunal concluded:

“The Tribunal is further satisfied that the Applicant would not be persecuted for a Convention reason on return, given it has found that he is not a member of the LTTE or has ever been suspected as a member or supporter and has never been of interest to the authorities.  Nor does it accept that he would be persecuted on arrival because he is a young man from the North.”

5                     Three grounds of review were pressed by counsel for the applicant.  The first was a challenge to the basis upon which the Tribunal made adverse findings against the applicant's credibility.  The submissions point to six distinct episodes or matters claimed by the applicant which were relied upon by the Tribunal in rejecting his version of the relevant events.

6                     In the course of assessing the credibility of an applicant and the claims put forward by that applicant, it is essential for the Tribunal to make reference to the nature of the evidence given, the claims made and the history of the matter.  In doing so, the Tribunal will bring to bear its background knowledge and its understanding of the country information that it has gleaned both from the material before it in a particular case and from its past experience in other cases.  Of course, the Tribunal is required to afford the applicant an opportunity to address the material before it.

7                     It is plain that the Tribunal did precisely this in respect to the six matters it relied upon in rejecting the applicant’s version of events, ultimately making findings about the implausibility of certain of the matters claimed by the applicant.  Whilst I have a degree of discomfort about the confidence shown by the Tribunal as to why it concluded that certain allegations were implausible, in the final analysis the primary argument put forward by counsel for the applicant, that in bringing to bear its background knowledge and applying it in this case there was some error of law, must be rejected.  It is plain that, subject to the rules of natural justice, to which I will refer briefly below, the question of credibility is essentially an issue of fact for the Tribunal as the arbiter of fact. 

8                     The submissions in respect of what I might briefly refer to as the background knowledge brought to bear by the Tribunal, amount to no more than an endeavour to review findings of the Tribunal on the merits.  I am not satisfied that any error of law, or any other kind of reviewable error, was made by the Tribunal in bringing to bear its background knowledge and applying that background knowledge and experience to the facts of the case in making findings which were adverse to the credit of the applicant.  The Tribunal does have a difficult task in arriving at credibility findings and, in my view, that task is not to be made more difficult by restricting the material which it might, relevantly, consider in making its findings.

9                     I briefly referred to the question of natural justice.  It is one thing to say that the Tribunal can apply its background knowledge and experience to the issues before it; it is quite another to suggest that it can do so without giving the applicant a fair and reasonable opportunity to deal with those matters.  However, no natural justice point or anything akin to it was raised by counsel in this case.  There would, in any event, be a serious issue as to whether a denial of natural justice could directly or indirectly constitute a ground of review in this court.  Importantly, I do not have the transcript of the hearing before the Tribunal and it has not been suggested in the course of submissions that the applicant did not have a fair opportunity to deal with the gravamen of the matters relied upon by the Tribunal in arriving at its decision.  For those reasons, the first ground of review relied upon by counsel for the applicant is to be rejected as, in substance, amounting to no more than a request for this Court to review aspects of the Tribunal’s decision on the merits.

10                  The second ground of review pressed by counsel for the applicant was that the Tribunal failed to comply with s 430(1) of the Act as it did not set out either its findings on the matters it was required to make findings on or the evidence relating to those findings.  In substance, counsel for the applicant seemed to contend that the Tribunal failed to make findings concerning the nature and extent of the membership or role of the applicant in the LTTE.  Counsel for the applicant pointed out that the Tribunal stated that it found that the applicant was not involved with the LTTE as claimed and that his departure from the north did not occur as claimed.  However, elsewhere in the decision the Tribunal found that the role of the applicant in LTTE activities had been exaggerated to boost his claim that he would be punished if he were to return to Sri Lanka.

11                  Whilst it is true that the Tribunal did not make any final or conclusive findings as to what role, if any, the applicant had with the LTTE, I do not regard that as an error of law nor do I regard it as a failure to comply with s 430 of the Act.  The case put by the applicant and the issue raised by the material before the Tribunal was whether his role with the LTTE was as claimed and whether he had a well‑founded fear of persecution by reason of his desertion from the LTTE and his departure from the north as claimed.  It seemed not to matter to that claim that the applicant may have had some lesser or other role with the LTTE, if that lesser or other role had not given rise to a well-founded fear of persecution upon his desertion.  It was therefore not necessary for the Tribunal, in order to dispose of this matter, to make a finding as to whether the applicant had some lesser or other role in the LTTE.  The reason for that is quite simple: it is not suggested that some lesser or other role was such that it would give rise to reprisals.  It was not claimed nor does the evidence justify any such issue being raised by the material.

12                  Further, as the material and the findings of the Tribunal upon that material made it quite clear that the applicant had not come to the notice of the authorities as a person connected with the LTTE, any role he may have had as far as the authorities are concerned is not relevant.  It seems to me that, far from the Tribunal failing to comply with s 430, it complied with its obligations under that section by making findings on the matters in respect of which the case ultimately was to turn.  The second ground of review is therefore also rejected.

13                  The third ground of review relied upon by counsel for the applicant was error of law within s 476(1)(f) of the Act in that the decision was affected by actual bias.  It was submitted that the Tribunal had brought a closed mind to the issues before it.  It is not easy to see how that ground can properly be raised on the basis of the material before the Court.  The only material relied upon in support of the ground were actual findings made by the Tribunal in its reasons for decision.  In making its decision, the Tribunal is disposing of the matter and is required to reach conclusions.  The issue of bias in the sense of having a closed mind relates to the role of the Tribunal prior to making its decision.  Nothing has been raised before me that suggests that, in discharging its function of giving the applicant an opportunity to be heard, or indeed any other function prior to its decision, the Tribunal approached the resolution of the present matter with a closed mind.  Accordingly, the allegation of actual bias must be rejected.

14                  Certain other grounds of review were raised in the amended application but I made it quite clear to counsel for the applicant in the course of his address that I would deal with the grounds argued and would treat only those grounds as being pressed by the applicant.

15                  Before departing from the matter I wish to express my concern at the confidence at which the Tribunal apparently arrived at some of its factual findings.  It made findings, for example, as to the likelihood of the applicant, as a Tamil child, being sponsored by the LTTE in a Catholic orphanage.  Whilst it may be surprising to the Tribunal that such sponsorship might occur, its assumption appears to have been made on the basis of nothing more than general knowledge.  There was no material before the Tribunal specifically applicable to the nature of LTTE support or evidence of that support for Catholic orphanages in the Jaffna region.

16                  I raise this issue specifically because I have a concern that the Tribunal, in some instances, may be applying its general background knowledge to specific episodes or instances raised by applicants and reaching findings with a degree of confidence which may not be warranted.  Whether the LTTE might support a particular orphanage in particular circumstances at a particular place seems to me to be a matter of very individual knowledge and support (if any) may vary from place to place.  I do not suggest that it was not open on the material for the Tribunal to arrive at a conclusion rejecting that aspect of the applicant's story.  However, it is surprising that it was able to do so with the confidence it did.

17                  While such matters concern me, I accept that they do not give rise to any reviewable error under Part 8 of the Act.

18                  However, it is appropriate to emphasise that the Tribunal, in exercising its jurisdiction, deals with issues of fundamental human rights in relation to people's lives and futures.  Findings of implausibility in respect of critical aspects of versions of events should not be made lightly and, when made, confidently, should be made on the basis of material which warrants the degree of confidence expressed in those findings.

19                  For the above reasons I do not find any grounds of review have been established as is required under Part 8 of the Act.  It is therefore appropriate to order that the application be dismissed with costs.

Associate:

Dated:              29 June 2000