FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023

MIGRATION - application for protection visa - Tribunal decision set aside by judge at first instance - appeal to Full Court - Tribunal identified eight factors which led it to conclude that applicant had concocted primary claim - whether factors identified by Tribunal were based on particular facts which did not exist - whether such facts constituted “critical facts” if some only of the factors identified were based on facts that did not exist, whether ground of review under s 476(1)(g) and (4)(b) of Migration Act 1958 (Cth) made out.

MIGRATION - Tribunal found that it was reasonable for the applicant to relocate - whether Tribunal failed to refer to material relevant to relocation in its reasons - whether this failure contravened s 430(1) of Migration Act 1958 (Cth) in circumstances - whether Tribunal’s finding affected by its view on applicant’s credibility.

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(h), 5(3)(b)

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

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 distinguished

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 distinguished

Ngo Quang Thuat v Minister for Immigration and Multicultural Affairs (O’Connor J,

24 November 1998, unreported) referred to

Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236 referred to

Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 followed

Pfizer Ltd v Birkhett [1999] FCA 1778 referred to

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 referred to

Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555 distinguished

Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 applied

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 applied

Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 referred to

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v RAJAMANIKKAM

N 1421 of 2000

KIEFEL, NORTH & MANSFIELD JJ

3 AUGUST 2000

BRISBANE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay to the respondents their costs of the appeal to be taxed.

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

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a decision of a judge of the Court given on 19 November 1999.  His Honour granted an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 29 September 1998 which affirmed a decision of a delegate of the appellant not to grant protection visas to the respondents.  He ordered that the application of the respondents for review by the Tribunal of the delegates’ decision be remitted to the Tribunal for a fresh hearing.

Background

2                     The respondents are husband and wife.  They are elderly Sri Lankan Tamils.  They arrived in Australia on visitors’ visas on 24 May 1996 and soon after lodged a combined application for protection visas under the Migration Act 1958 (Cth) (“the Act”).  It was a requirement for the grant of those visas that the delegate, and on review the Tribunal, be satisfied that the respondents were persons to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (“the Convention”).  In practical terms, that meant that the respondents were required to satisfy the delegate, and on review the Tribunal, that they were refugees within the meaning of Article 1A(2) of the Convention.  Only Mr Rajamanikkam claimed to be a refugee; Mrs Rajamanikkam sought a protection visa as a member of the family unit.  Her application therefore stands or falls with that of Mr Rajamanikkam.  It is convenient in that circumstance to refer to Mr Rajamanikkam as “the respondent’ hereafter in these reasons.  We shall refer to Mr Rajamanikkam and Mrs Rajamanikkam together as “the respondents”.

3                     The respondent is a retired medical practitioner.  He was born in Jaffna in 1921.  He is able to read, speak and write Tamil and English, and he is able also to converse moderately well in Singhalese.  For thirty-three years, he worked for the Sri Lankan Department of Health Services, working for lengthy periods in the Hill Country in the Central province, in the Kandy district, in the Ratnapura district, in the Eastern province, and in the Badulla district.  From 1971 until his retirement from that department in 1976, he worked in his home district of Point Pedro near Jaffna.

4                     In 1976, the respondent started a private medical practice in the Jaffna area.  He closed that practice in 1989.  He ascribed that action to troubles he had experienced from 1984 variously with the Sri Lankan authorities, the Liberation Tigers of Tamil Eelam (“LTTE”), and the Indian Peace Keeping Force (“IPKF”).

5                     In January 1992, the respondent went to Trincomalee and again started a medical practice.  In May 1996 he left Trincomalee for Colombo.  He attributed his departure to troubles experienced with the LTTE, and the Sri Lankan army in conjunction with a Tamil militant group supporting the government, probably the Eelam Peoples Revolutionary Liberation Front (“the EPRLF”).

6                     In May 1996, the respondents obtained a visa to visit Australia, and they left for Australia on 23 May 1996.  The respondents have two daughters living in Australia.

The claims

7                     The respondent claimed that he fears persecution both from the Sri Lankan authorities because of his perceived association with the LTTE, and from the LTTE because he is perceived by them to be a moderate Tamil and perhaps because he has not paid the LTTE SLR 50,000 which he promised to pay (referred to below).

8                     He gave evidence of the following matters:

·                      in 1984 he was assaulted by members of the Sri Lankan army, and thereafter was repeatedly warned against having contact with the LTTE and threatened with adverse consequences if he did so;

·                      later he was abducted by the LTTE and was accused of being a supporter of the moderate Tamil group, and mistreated;

·                      he was on occasions required by the LTTE to treat wounded soldiers at his practice and on other occasions he was kidnapped by the LTTE and taken to areas where he was required to provide medical services;

·                      in 1987 his surgery was damaged by the IPKF;

·                      in 1988 he was arrested by the IPKF and detained for three days as a suspected LTTE supporter; he was released after paying a bribe;

·                      from 1992, he was harassed by Tamil militant factions and paid extortion money to them;

·                      from 1992, he was on occasions required to treat members of the LTTE;

·                      in December 1995, he was taken into the jungle by the LTTE to treat its soldiers; he was then requested by the LTTE to return to Jaffna, but later he was allowed to leave after promising to pay them SLR 50,000 and to leave Sri Lanka for good (there is an issue as to the detail of that promise);

·                      in April 1996, whilst working to earn money to leave Trincomalee, and following the shooting of the village headman, he was arrested as a “Jaffna Tamil who had moved from Jaffna recently” (our emphasis); he was taken to some premises outside Trincomalee where persons who he suspected were members of the EPRLF identified him as an LTTE supporter; he negotiated his release after a few days with a person he believed was an EPRLF member, upon payment of a bribe of SLR 10,000.

The Tribunal’s reasons

9                     The Tribunal found that the respondent was not a credible witness.  It identified eight factors which led it to conclude that he had concocted his primary claims.

10                  The Tribunal specifically rejected his claims that he had been detained by the Sri Lankan authorities in April 1996, and that he was of any particular interest to the authorities.  It rejected his claim to have then been identified as an LTTE supporter, and found that he has not been a sympathiser or supporter of the LTTE.  It found:

“He had not been investigated [by the authorities] on other occasions apart from being warned not to get involved with the LTTE.  This no doubt would be a common warning by the authorities to all Tamils.  It does not indicate an interest in the applicant.  The Tribunal is of the view that the applicant is a well known and respected member of Trincomalee society … it is much more likely that the applicant decided to leave Sri Lanka at the end of his medical career.”

11                  The Tribunal was also not satisfied that the respondent is of interest to the LTTE or that he owes it SLR 50,000.  Nor was it satisfied that he has had any particular problems from the Tamil militants.  It doubted that he had been the subject of extortion demands by Tamil militants whilst in Trincomalee, but even if he had been the victim of such demands it concluded that the demands were simply to get money and were not for a Convention related reason.

12                  As the IPKF had left Sri Lanka, and “there is not even a remote chance that they will return”, it did not regard the conduct of the IPKF as giving rise now to a real chance of him being persecuted for a Convention reason.

13                  It concluded on this aspect of the claim:

“The Tribunal is of the view that the applicant does not have a well founded fear of persecution.  He does not fit the profile of someone of particular interest to the Sri Lankan authorities.  While he is from the North of Sri Lanka he is elderly.  As a medical practitioner he was reasonably well known in Trincomalee.  He had experienced no problems during the routine security checks undertaken in Trincomalee during the four years he lived there.  He has had a long medical career with the Government and practised in many parts of Sri Lanka.  He receives a pension from the Government in spite of his claims to the Department that he did not receive a pension.

As the applicant is a Tamil he may be caught up in the routine security checks which occur in Sri Lanka.  However he told the Tribunal that while in Trincomalee he had not experienced difficulties during the routine security checks.  Such security checking is not unreasonable in the civil war circumstances facing Sri Lanka and would not amount to persecution under the Convention.”

14                  The eight factors which the Tribunal identified as leading to its adverse conclusion about his credibility were:

(1)               Misleading evidence given to the Department of Immigration and Multicultural Affairs.  There were two matters the Tribunal noted:

(a)                that he had told the Department on 4 February 1997 that he was not receiving a Sri Lankan pension, but he told the Tribunal that he did receive a pension, and

(b)                that he told the Department that Point Pedro had not been cleared of the LTTE, but he told the Tribunal that he had not said that.

(2)               The circumstances of the respondent’s arrest and detention in 1996.

The Tribunal regarded a number of features of that alleged arrest and detention as surprising or unlikely. In particular, the fact that he was arrested, the role of a Tamil militant in procuring his release, and the circumstances of his release.  It also described his evidence at one point as vague.

(3)               Inconsistency in relation to description of detention.

The respondent said he was taken to an “army camp” when he was arrested in 1996, and later said it was to a “house” controlled by the army.  The Tribunal held the view that he had changed his evidence to give a plausible explanation of how he managed to get released and the role of the Tamil militant in that process.  It rejected the view that the different descriptions were explained as being a result of difficulties in interpretation.

(4)               Number of people who interrogated the respondent.

The respondent is recorded as having said variously that he had been interviewed by five, three or perhaps four people (two at a time).  The Tribunal regarded the evidence as vague and inconsistent, and the respondent’s explanation for the inconsistency as itself vague and inconsistent.

(5)               Respondent’s claim that he was new to Trincomalee.

The respondent said that he had been arrested in 1996 as a “Jaffna Tamil who had moved from Jaffna recently”.  He had in fact been living in Jaffna for four years.  It considered that his use of the word “recent” was an attempt to create a profile and a reason for his arrest which he did not have.

(6)               Whether the bribe to the LTTE was paid?

The Tribunal regarded his evidence as inconsistent or ambiguous.  It was unclear whether, at any point, the respondent said he had paid a bribe of SLR 50,000.  It added:  if he paid the bribe, his later evidence to the Tribunal is misleading, and if he did not but merely promised to pay it, then it is unlikely that he would have been released.

(7)               The time at which the respondent went to Colombo to obtain his visa.

The respondent told the Tribunal first that, after his detention, he went to Colombo on about 15 May 1996, but later he said that it was early May 1996 (after the Tribunal had pointed out that his Australian visa was granted on 10 May 1996).  It referred to his claim that he was confused about the dates because of his poor memory.  It said:

“Nevertheless the facts are that his evidence at the hearing was inconsistent with the date he received his visa and his evidence was vague and uncertain about when precisely he was arrested and what he did prior to travelling to Colombo.”

(8)               Timing of the alleged detention.

The Tribunal regarded the timing of the alleged detention in 1996 by the Sri Lankan authorities as itself suggestive that it may have been concocted.  He had had no major problems with the Sri Lankan authorities for many years.  It said:

“It is somewhat surprising that his problems should arise some six weeks before he fled the country for good and shortly after he told the LTTE that he was leaving the country.”

15                  The Tribunal also decided the claim on an independent basis, even if it was wrong in its assessment that the respondent had no problems in Trincomalee in 1996.  It considered that it would be reasonable for the respondents to relocate within Sri Lanka either to Colombo, or to the north to Jaffna or Point Pedro, or to the Central area (presumably, the Tamil speaking Hill Country it later referred to).  It was in terms applying the decision in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”).

The decision of Einfeld J

16                  So far as they are relevant to this appeal, the grounds of review argued before Einfeld J were that:

(a)                there was no evidence or other material to justify the making of the decision:  s 476(1)(g), because the decision was based on the existence of particular facts that did not exist:  s 476(4)(b).  The particular facts which were said not to exist were the inconsistencies the Tribunal discovered in the respondent’s evidence referred to in its factors (1), (3), (4) and (6) above, and facts upon which the Tribunal’s views in factors (5) and (8) above, were expressed.  Thus, the respondents sought to challenge the findings underlying the Tribunal’s conclusion that the respondent had concocted his claims.

(b)               The Tribunal failed to make findings on material claims made by the respondent as to why he was unable to relocate to either Colombo, Jaffna or Point Pedro or the Central area:  s 476(1)(a) and (e).  The respondents contended that the Tribunal was obliged to make those findings by reason of s 430 of the Act.

17                  His Honour was satisfied that, in respect of each of the factors weighing against his credit, the respondents had made out the first ground of review.  As those matters are also the subject of this appeal, it is not necessary to rehearse his Honour’s conclusions in detail at this point.  His Honour also found that the Tribunal’s reasons for reaching its conclusion that the respondent concocted his claims to the Tribunal were not explained, so that the requirements of s 430 of the Act were not satisfied.  (It may be observed that it was not a ground of review  maintained on this appeal that the Tribunal had failed to comply with s 430 so as to give rise to the ground of review available under s 476(1)(a) of the Act in respect of those findings).

18                  Einfeld J also concluded that the respondents had made out the second ground of review.  Again, as those matters are raised on this appeal, it is not necessary at this point to rehearse his Honour’s reasons in detail at this point.

Consideration of s 476(1)(g) and (4)(b)

19                  Section 476(1)(g) and (4)(b) of the Act are analogous to s 5(1)(h) and 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  Because s 476(4)(b) relates to non-jurisdictional facts, the circumstances in which it is available are limited:  see the discussion of the Full Court (French, R D Nicholson and Finkelstein JJ) in Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 at [54-58].  Counsel agreed that the observations of Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (“Curragh”) concerning those provisions of the ADJR Act are aptly applied to ss 476(1)(g) and (4)(b).  The Chief Justice said at 220-221 on the expression “particular fact” in s 5(3)(b):

“If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact.  In Bond’s case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to “proof of the non-existence of a fact critical to the making of the decision” [my emphasis].  See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word “critical” to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision.

Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision.  A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.”

Then, on the expression “and that fact did not exist”, the Chief Justice said at 223:

“Since the ground in s 5(1)(h) is a “no evidence” ground, and since s 5(3)(b) requires, in that context, that it be established that the person who made the decision based the decision on the existence of a particular fact as a requirement for making out the ground, the concluding words “and that fact did not exist” must be taken to impose an additional requirement.  In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 519-521 Wilcox J examined the history and meaning of s 5(3)(b).  His Honour observed that whilst it might have been thought appropriate to provide for an administrative decision to be struck down where the decision was based upon the assumption of a particular fact of which the decision-maker had no evidence, a deliberate decision was made in drafting the ADJR Act to restrict more tightly the operation of the ground.  By reference to the background to the provision his Honour considered that it was understandable that, when parliament turned to non-jurisdictional findings of fact in s 5(3)(b), it required the applicant for review to show more than that there was no evidence before the decision-maker of the fact found, or assumed, as the basis of the decision.  The applicant was required to negative the fact and, as his Honour noted, this may constitute a heavy burden, especially where the facts are obscure.  But the language of s 5(3)(b) shows that its concluding words do impose an additional requirement and the history of the section, discussed by Wilcox J in Television Capricornia (supra), tends to confirm that this is so.”

20                  In this case, the respondents sought to show that each of the particular facts upon which the credibility finding was based did not exist only by reference to the material before the Tribunal.  There was no additional evidence sought to be adduced before Einfeld J to demonstrate that a particular fact or facts did not exist.

21                  Often, the Tribunal rejects a visa applicant’s claims because the applicant is found not to be a credible witness.  There is no reason in principle why a finding of fact upon which that conclusion as to credibility is made should not constitute a particular fact as that expression is used in s 476(4)(b).  Whether or not such a finding does so qualify will depend on the circumstances of a particular case.  Similarly, there is no reason in principle why, if it is shown that that fact did not exist, the ground of review available under s 476(1)(g) and (4)(b) should not be made out.  For example, if the Tribunal rejected a visa applicant’s evidence because it attributed to that applicant the claim that event A happened, when there was other evidence showing that event A did not happen, the Tribunal might reject that applicant’s evidence as not credible.  If that applicant, by examination of the transcript upon which the Tribunal relied, can show that he or she did not say that event A happened, the ground of review might well be made out.  The particular fact which was shown not to exist in that example is that the applicant claimed that event A happened.  Examples of such instances are provided by Ngo Quang Thuat v Minister for Immigration and Multicultural Affairs (O’Connor J, 24 November 1998, unreported) and Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236 (“Guden”).

22                  In Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34, the Full Court (Moore, Mansfield and Emmett JJ) in a passage cited with approval in Guden, said at [34]:

“Thus, the appellant must show that the decision of the Tribunal was based upon the existence of a particular fact, and that that particular fact did not exist if he is to invoke successfully ss 476(1)(g) and 4(b).  The particular fact is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although one of those particular facts may qualify under s 476(4)(b):  Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193; Re Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1; Malik v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 27; Adams v Minister for Immigration and Multicultural Affairs (1998) 70 FCR 591.”

23                  It should also be noted that the conclusion of the Tribunal that a visa applicant is not a credible witness may be based upon the impression of the Tribunal having had the benefit of seeing and hearing the evidence of the visa applicant.  In such a case, it is difficult to conceive of circumstances in which the ground of review in s 476(1)(g) could be made, simply because it would not be possible to prove (except in the most exceptional circumstances) that the Tribunal did not form the impressions which it asserted.  See per Mathews J in Pfizer Ltd v Birkhett [1999] FCA 1778 at [12].  This is not such a case; the Tribunal’s reasons indicate that it formed its views about the credibility of the respondent upon express findings about the evidence which, it is submitted, careful analysis of the record demonstrates to be incorrect (cp. Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at [620].

24                  It is therefore necessary to consider whether the findings constituting each or any of the eight factors upon which the Tribunal relied in rejecting the respondent’s claims as being concocted, that is in being satisfied that the respondent had made up those claims, was a finding about a fact and whether that fact did not exist.  Depending upon the outcome of that consideration, it will be necessary then to determine whether the ground of review under s 476(1)(g) and (4)(b) is made out, having regard to the explanation in Curragh as to what constitutes a “particular fact” as used in s 476(4)(b).

Consideration of the ground of review under s 476(1)(g)

25                  In his interview with a departmental officer on 4 February 1997, the respondent clearly said that he was not at that time receiving a pension, although later he said that he still had the right to receive a pension; he had not received it after he left Point Pedro but he could apply to have it transferred to another area.  Factor 1(a) was based upon the respondent’s evidence before the Tribunal as follows:

“MR THOMPSON:                 How much do you get for your government pension?

THE INTERPRETER:           About – well, in Australian dollars it is less than $100.

MR THOMPSON:                 A week or a month?

THE INTERPRETER:           A month.  Everything there is calculated in monthly terms.

MR THOMPSON:                 But that is quite a pension in Sri Lanka, is it not?

THE INTERPRETER:           Not now it is not like that.

MR THOMPSON:                 For 25 years you were a medical practitioner and this is your pension and I am putting it to you that you are probably on a very good pension.

THE INTERPRETER:           No.

MR THOMPSON:                 And so it is not much money?

THE INTERPRETER:           No.  Even it is impossible to pay rent for a house with this amount.”

26                  The consequence of the Tribunal’s apprehension of his evidence was expressed as follows:

“The Tribunal is of the view 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.”

27                  The focus of the Tribunal was upon the respondent’s perceived efforts to raise concerns about whether it was reasonable for him to relocate elsewhere within Sri Lanka:  see Randhawa.  In that context, the Tribunal’s finding that the respondent told it that “he did receive a pension” is not shown to be a fact which did not exist.  It was clearly implicit in the respondent’s evidence to the Tribunal that he had received a pension.  That was consistent with his statement to the Department.  The Tribunal’s conclusion about the picture the respondent presented was able to be drawn from his statement to the Department.  It is that statement, rather than his evidence to the Tribunal, to which the Tribunal attributed significance.  The Tribunal’s comment about the respondent’s evidence that he “did” receive a pension is capable of meaning that he had received a pension; it does not necessarily mean that he was understood by the Tribunal to be still receiving a pension.  Furthermore, as the Tribunal’s focus in this regard is upon what the respondent told the Department, that observation by the Tribunal would not constitute a “critical” fact (as explained in Curragh).

28                  The other aspect of factor (1) was that the respondent had told the Department about the status of Point Pedro.  At the interview on 4 February 1997, he said that the LTTE had taken over his former house at Point Pedro.  He said, when pressed about why he did not still own the house, that the LTTE had taken the title deeds although he agreed that under Sri Lankan law the house still belongs to the respondents.  He then raised the question whether the house was still left standing.  In answer to the question whether the Sri Lankan government controlled that area, he said “now”, (ie at the time of the interview).  It does appear that the Tribunal erroneously understood that the respondent had said “no” rather than “now” when asked whether Point Pedro was being taken over by the Sri Lankan government.  There was no evidence from the respondent denying that Point Pedro had been taken over by the Sri Lankan government.  The Tribunal attributed that denial to him.  The fact that he denied that to the Department is a fact which did not exist.

29                  Whether the finding by the Tribunal that the respondent denied to the Department that Point Pedro had been taken over by the Sri Lanka government (a fact which did not exist) constitutes a “critical” fact is addressed below.

30                  As noted above, the circumstances of the respondent’s arrest and detention in 1996 were described by the Tribunal as having a number of surprising or unlikely aspects.  Clearly, the Tribunal as a result considered that those features, together with other aspects of the respondent’s account of his detention, were not credible.  However, there was no particular finding of fact in relation to factor (2) which was attacked as being a fact which did not exist.  Whether another person may not have been surprised by aspects of the respondent’s account, or may not have regarded his account as inherently unlikely in some respects, is not to the point.  The Tribunal’s consideration of this factor is not shown to have involved error which might be reviewable under s 476(1)(g) and (4)(b).

31                  The Tribunal’s approach to matters in factor (3), as in respect of certain other factors, might be seen as pedantic.  In Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555, Lee J said at [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.

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.” ”

In this matter, no submission was made that the overall approach of the Tribunal to assessing the respondent’s credit itself attracted a ground of review under s 476(1) of the Act, so it is not necessary to further consider that aspect.

32                  The respondent, in his statutory declaration of 19 February 1997, described being taken to “a cell at an army camp in Trincomalee”.  When questioned at the hearing, the Tribunal invited him to comment upon his claim that Tamil militants could walk around the army camp unescorted.  He replied:  “This is not in the army camp.  It is a cell”.  Then he told the Tribunal that was “like a house” and “near the Trincomalee town”.  The Tribunal asked why he had referred to a cell at an army camp in Trincomalee.  His answer was:  “This is controlled by army – army”.  His statutory declaration of 26 May 1998 said:

“We were driven to a house about one or two miles outside of the town of Trincomalee.  The house is under the control of the Army.

At the hearing and in my earlier statutory declaration I referred to this house as an Army Camp.  In Sri Lanka, the term Army Camp is used broadly to refer to any place used by and in the control of the Army, including houses like the one I was taken to.  In fact their was a group of houses in this “Camp”.  I was taken to one of them and detained in a room that had been divided into cells.  I was kept in one of these cells.  Together, these houses are under the control of the Army and there are guards outside.”

33                  That material supports the Tribunal’s findings as to what the respondent said from time to time about where he had been detained, save for it attributing to him the statement that the premise was “a house”.  In fact, he said it was “like a house”.  However, that expression was used (as the Tribunal noted) in the process of him responding to the Tribunal’s querulousness about his evidence that a Tamil militant could move around within an army camp unrestricted.  The Tribunal’s conclusion that it represented a change of evidence was reached after considering that there may have been interpretation problems, and in the light of the way he responded to its questions.  In those circumstances, it was open to the Tribunal to reach the conclusion which it did about factor (3).  More correctly, it has not been shown that the inconsistency identified by the Tribunal did not exist.  Even if it represents an analysis of the respondent’s evidence with an eye keenly attuned to the perception of inconsistency, that is not sufficient to bring the consideration into the realm of reviewable error under s 476(1)(g).

34                  It is correct, as the respondents contend, that the respondent’s declaration of 19 February 1997 said that “about five young men” came into his cell whilst he was held by the Sri Lankan army.  At the hearing on 27 April 1998, he said:  “Three.  I think three.”  He acknowledged in his declaration of 26 May 1998 that the effect of that evidence was that he was interrogated by three men, and that he had been interrogated by not more than three men at any one time although they may not always be the same persons.  He added:

“For that reason, I am not sure whether there were three or five interrogators in total.  It is painful for me to turn my mind to this memory.”

35                  In his evidence to the Tribunal, the respondent sought to explain why he had referred to five people in his declaration of 19 May 1997 by referring to his age and to difficulties remembering things.  Subject to the Tribunal attributing to the respondent the initial statement that he had been interviewed by five men, when he had said “about five” men, the Tribunal has accurately recorded his statements on the topic.  The Tribunal then observed:

“In the Tribunal’s view, 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.”

36                  That passage reveals that the matters of significance to the Tribunal were that the evidence itself was vague and unconvincing, and that the explanation in the declaration of 26 May 1998 was itself unconvincing.  It is those findings which were part of the process of thought of the Tribunal leading to its conclusion that his claims were concocted.  It has not been shown that the Tribunal did not find that evidence to be vague and unconvincing, nor the explanation to be convincing.  They are matters for the Tribunal’s judgment.  They may, in the minds of many, be based upon slight matters, but those matters are not shown not to exist.  The slight misquoting of the respondent’s evidence referred to is but a small feature of the material upon which the Tribunal formed its views.  The respondent himself later appears to have accepted that the Tribunal could treat his initial declaration as conveying his then recollection that he was interviewed by five men.  He did not then say, as he later proffered, that there were only three interviewers at a time but in total up to five.  That slight misquoting, in those circumstances, could not itself amount to the finding of a “critical” fact which did not exist.  Accordingly, factor (4) does not constitute findings of particular facts which did not exist so as potentially to enliven s 476(1)(g) and (4)(b).

37                  In the respondent’s statement of 25 November 1996 he said he had been arrested in April 1966 as a “Jaffna Tamil who had moved from Jaffna recently”.  Earlier in that statement (the same page) he had clearly said that he left Jaffna in January 1992 and had then moved to Trincomalee.  The Tribunal clearly took from his statement a meaning which was not there.  The evidence on 27 April 1998 contains the following:

“MR THOMPSON:               The other thing I found curious about your first statutory declaration was your claim that you were a newcomer to Trincomalee.  Do you understand why you said that?

THE INTERPRETER:         Well, who says that I was a newcomer?

MR THOMPSON:               It says that:

The security people came to my surgery.  I was arrested being a Jaffna Tamil who had moved from Jaffna recently.

THE INTERPRETER:         Well, a newcomer in the sense I was not born and bred there.  Well, I, in fact, came from here.

MR THOMPSON:               Well, you had been four years in Trincomalee at that time.

THE INTERPRETER:         Yes, I had.”

38                  The view of the Tribunal that the respondent was attempting to create a profile and a reason for his arrest which he did not have depends upon its finding that the respondent conveyed that he was new to Trincomalee.  That is how the Tribunal labelled factor (5).  The statement of the respondent, containing the information that he had moved to Trincomalee in January 1992 and that he thought he had been arrested as a Jaffna Tamil who had moved from Jaffna recently, does not provide evidence that the respondent claimed he was “new” to Trincomalee in the sense that expression was used by the Tribunal.  He did not by that statement seek to convey that he had arrived in Trincomalee much later than 1992, although the Tribunal used the fact that he had arrived in Trincomalee in 1992 to contrast his statement that he was a recently arrived Tamil.  No other evidence was identified as providing any basis for attributing to the respondent such a claim.  In that circumstance, the particular fact that the respondent had made the claim as identified by the Tribunal did not exist.

39                  Counsel for the appellant contended that the gravamen of the Tribunal’s finding was that the respondent’s statement was an attempt “to create a profile and a reason for his arrest”, and that it has not been shown that that fact did not exist.  It was put that the Tribunal could have used the respondent’s statement to reach that finding, even taking his statement in its entirety including his express statement that he had moved to Trincomalee in 1992.  The Tribunal’s reasons, however, do not really support that contention.  After referring to the respondent’s statement that he had moved from Jaffna recently, the Tribunal said:

“However, he had been living in Trincomalee for just over four years.  He was not a recent arrival at all …”

40                  That process of reasoning shows that the Tribunal’s finding was based upon part of the respondent’s statement which was taken out of context, and was attributing to him a claim that he had arrived in Trincomalee much later than 1992 when his statement made it clear that he had arrived in Trincomalee in 1992.  Accordingly, the fact which underlay factor (5) has been shown not to exist, and is a fact which may attract the ground of review under s 476(1)(g) and (4)(b).  Its significance is considered below.

41                  The matters giving rise to factor (6) comprise a combination of “inconsistency or at least ambiguity” and “confusing evidence” about whether the respondent paid the bribe of SLR 50,000.  In addition, the Tribunal regarded it as unlikely that the respondent would have been released from detention if he had only promised to pay that bribe.  The later observation is a matter of subjective judgment which the respondents did not contend was a fact which did not exist.  The focus of their attack was upon the finding (which they asserted that the Tribunal had made) that he had given inconsistent evidence about whether he had paid the bribe.  That contention overstated the Tribunal’s finding.  It was that there was inconsistency or ambiguity on that matter.  For the respondents to succeed on the point, it is necessary for them to show that neither the fact of inconsistency nor the fact of ambiguity existed.  The respondent’s statement of 25 November 1996 was that “They gave me time to make arrangements to leave Sri Lanka for good after paying SLR 50,000”.  In his evidence to the Tribunal, he said he had not paid that sum.  The information in his statement is capable of meaning that the respondent had paid the bribe before leaving Sri Lanka.  That may be, in the circumstances, a harsh interpretation of the statement.  But it is an interpretation capable of supporting the Tribunal’s perception of ambiguity on the topic.  Accordingly, in relation to factor (6), it has not been shown that the Tribunal made a finding of fact and that that fact did not exist.

42                  The significant conclusion of the Tribunal concerning factor (7) was that the respondent’s evidence about when he went to Colombo was inconsistent with the date he received his visa.  It added:

“… and his evidence was vague and uncertain about when precisely he was arrested and what he did prior to travelling to Colombo.”

43                  There was therefore a compendium of matters which constituted factor (7).  The respondents submitted that the asserted inconsistency did not exist upon a fair reading of the evidence, including his declaration made on 26 May 1998, after the hearing when he explained that he had been confused about the dates because of poor memory.  At one point in his evidence on 27 April 1998, the respondent did say that he went to Colombo on about 15 May 1996.  On other occasions, he put the time he went to Colombo in early May 1996.  His visa was granted on 10 May 1996.  That evidence given on 27 April 1998, is sufficient to conclude that the respondents have not shown that the inconsistency remarked by the Tribunal did not exist, so the ground of review under s 476(1)(g) and (4)(b) is not made out in relation to factor (7).

44                  The learned judge at first instance remarked that the Tribunal did not explain:

“why [the inconsistency was] important and what [the respondent] gained or could have expected to gain by [that inconsistency] as deliberate deceptions.  The [appellant] could not and did not suggest any reasons and I cannot think of any.”

The appellant on this hearing also did not proffer any reason why the respondent might have wanted to mislead the Tribunal as to when he arrived in Colombo.  The Tribunal called this factor “an important timing problem”.  It is hard to understand why it should be so characterised.  Nevertheless, for the reasons given, the attack upon this factor is not made out.

45                  The final factor reflects an opinion of the Tribunal about the significance of the timing of the respondent’s arrest and detention by the Sri Lankan army in April 1996, having regard to the respondent having told the LTTE shortly before that he would leave Sri Lanka.  The respondents contended that they left Sri Lanka because of that arrest and detention, but there was evidence to support the Tribunal’s finding that the respondent had told the LTTE before April 1996 that he was planning to leave Sri Lanka.  It was that fact which prompted the Tribunal’s observation.  It is not a fact which has been shown not to exist.  The Tribunal’s view that it is surprising that the respondent should flee Sri Lanka a short time after his arrest and detention in April 1996 would be very difficult to comprehend in the absence of that fact.  The arrest and detention in April 1996 might be the very circumstance which prompted his departure from Sri Lanka.  But the Tribunal appears to have considered, in conjunction with the other factors, that the alleged arrest and detention in April 1996 after he had already decided to leave Sri Lanka and after some years during which he had not had any major problems with the Sri Lankan authorities, as somewhat convenient in relation to his claim to be a refugee.  Whether or not that view was correct, for the reasons given the respondent’s attack on factor (8) does not succeed in invoking ground of review specified in s 476(1)(g) and (4)(b) of the Act.

46                  Accordingly, the respondents have shown that two of the factors upon which the Tribunal concluded that the respondent’s claims were concocted were made on the basis of facts which did not exist.

47                  It is necessary to consider whether either or both of those facts is critical, in the sense explained in Curragh, to the making of the decision of the Tribunal that the respondent concocted his claims.

48                  It was upon the basis of its rejection of the respondent’s claims the Tribunal affirmed the decision of the delegate of the appellant not to grant the protection visas sought (subject to considering the separate and independent ground that he could in any event relocate within Sri Lanka). The Tribunal said:

“There are a range of factors, which when considered together, and while allowing for difficulties with translation and the applicant’s age, lead the Tribunal to doubt the applicant’s credibility.  It is the number of difficulties with his evidence which in the end tell strongly against the applicant’s credibility.”

49                  Thus it was the combination of factors which caused the Tribunal to doubt the respondent’s claims.  It was the accumulation of difficulties with his evidence which led to its conclusion. Each of those two facts which have been shown not to exist was integral to a factor which comprised part of that accumulation.  Neither of those two matters is therefore of peripheral importance to the decision.  As the Tribunal has described its process of reasoning, each is a matter which played a part in the Tribunal’s process of reasoning.  That is so, not simply taking those two matters separately, but also because they contributed to its conclusions concerning factor (3).  This is not, therefore, a case where those matters are merely parallel links in a chain of reasoning; they are matters without which the Tribunal may well not have reached the conclusion which it did.  In our judgment, each of those matters in the particular circumstances of this case were particular facts upon which the Tribunal based its decision to reject the respondent’s primary claims as concocted.  As those facts were facts which did not exist, the ground of review under s 476(1)(g) and (4)(b) has been made out.

50                  Counsel for the appellant submitted that where a challenge is made to a conclusion that a visa applicant should not be believed, that conclusion can be set aside under s 476(1)(g) and (4)(b) only if there is no evidence or other material to support that overall finding.  However, in Curragh, Black CJ made the point that a decision may be based upon the existence of many facts, and a small factual link in a chain of reasoning, may be critical to the decision so as to be a “particular fact” within s 5(3)(b) of the ADJR Act (and s 476(4)(b) of the Act).  It is necessary, in each instance, to consider whether the fact which is shown not to exist is a critical fact to the making of the decision.  A particular fact in issue may be distinguished from a conclusion based upon a series of particular facts:  see Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 at [34].  In Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 the Tribunal found that the visa applicant was not vulnerable to persecution as a Chechen.  That decision was upheld because there were many “factors quite independent of any assessment” of the visa applicant’s credibility to support the conclusion even though two facts upon which the Tribunal relied in rejecting the visa applicant’s claim as not credible may not have existed at [17] see per Heerey J, with whom Carr and Tamberlin JJ agreed,.  For the reasons given, in our judgment, the proper characterisation of the two matters shown not to exist is that they are particular facts for the purposes of s 476(4)(b) of the Act.

Consideration of the ground of review under s 476(1)(a)

51                  The alternative ground for the Tribunal’s decision is also attacked.  The respondents contend that the Tribunal failed to comply with s 430(1) of the Act in deciding that, in any event, it is reasonable for the respondents to relocate within Sri Lanka either to Colombo, to Jaffna or Point Pedro, or to the Central (Hills) area:  see Randhawa.

52                  The Tribunal noted that, on his own account, the authorities had only asked the respondent to leave Trincomalee.  It found that there is no reason to believe that he has any other significant problem with the Sri Lankan authorities, apart from in Trincomalee.  It noted that he had a pension from the Sri Lankan government (on his own evidence, he has an entitlement to that pension) of more than the average per capita income of Sri Lanka.  It found that the respondent and his children own a house and land in Point Pedro, which would have some value even if it has fallen into disrepair.  It regarded the pension and his assets as sufficient to provide a standard of living above that which the respondents would have enjoyed had they not come to Australia.  In reaching that view, the Tribunal had regard to the age and health of the respondents.

53                  It concluded that the respondents could reasonably be expected to live in Jaffna or Point Pedro.  Apart from the matters referred to of a general nature, it noted that the respondents had lived in Point Pedro for some twenty years to 1992.  It also concluded that they could reasonably be expected to live in Colombo.  It noted the additional matter that they have one family contact there, the father-in-law of their son.  It also concluded that they could reasonably be expected to live in the Tamil speaking Hill area.  It noted the respondent had previously worked there for many years.

54                  The respondents submitted that the Tribunal had failed to apply the correct test for internal relocation as explained in Randhawa, because it had not expressly addressed whether it would be reasonable to relocate to Point Pedro or Jaffna, or Colombo, or the Hills Country but had decided only that the respondents “could” move to those areas.  The Tribunal’s reasons on the topic of relocation identify the correct question, namely whether it would be reasonable for the respondents to relocate to one or other of those areas.  The matters which it addressed indicate that it was correctly addressing that question.  Its findings that the respondents “could” live in any of those three areas do not stand in isolation from its identification of the correct question, or its consideration of those matters.  We are not therefore persuaded that the Tribunal failed to apply the test expressed in Randhawa in considering the issue of relocation.

55                  The respondents contend that the Tribunal failed to make findings on certain further claims made by the respondents that they could not reasonably relocate in Jaffna, or Colombo, or in the Central or Tamil speaking Hill area, and that it was obliged to have done so by s 430(1)(b) and (c) of the Act.

56                  The majority of the Full Court (Black CJ, Sundberg, Hely and Katz JJ) in the recent decision of Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 (“Singh”) confirmed that the ground of review provided for in s 476(1)(a), namely that there had been non-observance of procedures that were required by the Act to be observed in connection with the making of a decision, was available where provisions of s 430(1) were breached.  Paragraphs (b) and (c) of that subsection requires the Tribunal to include, in a written statement to be prepared by it, the reasons for its decision and findings on any material questions of fact.  Whilst the Court held that what facts were “material” to a decision, in the sense that it turned upon them, could be objectively ascertained by the Court, it confirmed the view, endorsed in a number of decisions of the Court, that s 430 did not require the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  That is to say, it was not to be seen as required to deal with every piece of evidence or contention put forward.  This was subject to the important qualification that it must make disclosure if rejection or refusal to give weight to particular material formed part of its actual reasoning process:  see Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407.

57                  In Singh one of the issues for the Tribunal was whether there had been a significant change in circumstances in the Punjab, which was relevant to whether the applicant could be said to no longer have a well-founded fear of persecution at the hands of the Punjab police.  The Tribunal concluded that such a change had occurred, gave its reasons for it and identified the material it based that opinion upon.  The applicant submitted that s 430 required that it address material which suggested to the contrary of that finding and explain why it did not accept it.  For the reasons outlined above, the Full Court rejected that contention.

58                  The Tribunal here concluded that, even if it was mistaken about the problems encountered by the respondent in Trincomalee it was reasonable for him and his wife to relocate to other cities, towns or areas.  It provided reasons and findings for that view, which are noted above (at pars 52-53).  The Tribunal’s reasons also disclose the basis for that view.  It referred to the evidence of the respondent himself and departmental and other reports relating to prevailing conditions in various parts in the country and the prospect, generally, of relocation of Tamils.  The findings by the Tribunal and the material upon which they were based were rather more extensive than the respondent would admit, but this is not the basis of the submissions with respect to any breach of s 430.  The respondent submitted that the Tribunal failed to refer to material which suggested Tamils remained at risk in the Jaffna area.  The material is identified as newspaper reports, a report by Amnesty International, and information regarding disappearances by persons and persons detained, together with the respondent’s own evidence.  Similarly it was alleged that the Tribunal failed to address evidence put forward by the respondent himself and some country information relating to the situation in Colombo and the Central area.  It follows from the decision in Singh that the Tribunal was not obliged to do so.  It was not obliged to identify and explain either its non-acceptance of the respondent’s evidence or the reports and other material tendered by the applicant which suggested to the contrary of the material upon which the Tribunal relied in making its findings.

Conclusion

59                  So far as concerns the Minister’s appeal, not all of the findings made by his Honour in connection with s 476(1)(g) have been sustained on appeal.  In two important respects the ground for review has been maintained:  the attribution, wrongly, of a denial by the respondent that Point Pedro had been taken over by the Sri Lankan government and of a claim that he was, or would be viewed as, a newcomer to Trincomalee from Jaffna.  Subject to consideration of one aspect of the Tribunal’s decision, we are of the view that the order made by his Honour, remitting the matter to the Tribunal for further consideration, should stand on that ground.  The two errors must be taken as influential in the Tribunal’s assessment of his credit.

60                  The Tribunal expressed the view that, even if it were wrong in its assessment “that the applicant had no problems in Trincomalee in 1996”, it was of the view that it would be reasonable for the respondent and his wife to relocate.  We have considered whether the Tribunal’s reasons here can be regarded as a wholly independent basis for its decision, which is to say that it could be seen as uninfluenced by the view it formed as to the respondent’s credit.  We do not think that conclusion is possible.  The prospect that the Tribunal’s view of his credit-worthiness has infected its consideration of this topic is real.  The Tribunal itself said that there was “no reason to believe” he had any other significant problem with the Sri Lankan authorities apart from that claimed in Trincomalee.  Whilst it was not obliged to give further reasons for not accepting the respondent’s evidence as to the difficulties he would face on relocation, it clearly rejected his evidence, and credit must have played a part in that process.

61                  The orders made should stand and the Minister’s appeal fails.

62                  The respondent was not successful in his attempt to uphold his Honour’s conclusion that s 430 had been breached upon additional grounds.  It was not necessary to do so but, in any event, not a great amount of time was taken with that argument.  In those circumstances costs should follow the event and the Minister pay the respondent’s costs of the appeal.

Associate:

Dated:              3 August 2000