FEDERAL COURT OF AUSTRALIA

Shaffeer v Minister for Immigration & Multicultural Affairs [2000] FCA 1087

Migration Act 1958 ss 430, 476

The Minister v Singh [2000] FCA 845 applied

Logenthiran v The Minister (1998) 56 ALD 639 distinguished

Kandiah v The Minister [1998] FCA 1145 distinguished

Thevendram v The Minister [1999] FCA 182 distinguished

Wu Jian Wu v The Minister [1997] FCA 316 applied

Arudselvan v The Minister [1999] FCA 1726 applied

Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 applied

Sun v The Minister (1997) 81 FCR 71 distinguished

MOHAMED AZWER MOHAMED SHAFFEER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 139 OF 1999

SUNDBERG J

8 AUGUST 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     The applicant is a 32 year old male citizen from Sri Lanka who arrived in Australia in July 1995 as the holder of a student visa that was valid until mid‑1997.  In mid‑1996 he was granted a class 435 visa, which was a special visa for Sri Lankan visitors.  He lodged an application for a protection visa in January 1997.  The application was refused.  He applied for a review of that decision by the Refugee Review Tribunal.  He attended a hearing before the Tribunal and gave oral evidence.  The Tribunal affirmed the decision under review.  He has applied to the Court for review of the Tribunal’s decision under Part 8 of the Migration Act 1958.

APPLICANT’S CASE BEFORE TRIBUNAL

2                     The applicant claimed to be a Muslim Tamil who was born in Kandy and worked there and in Colombo.  His protection visa claims related to his membership of an ethnic group comprising Muslims, and his suspected affiliation with the Liberation Tigers for Tamil Eelam (“LTTE/Tamil Tigers”).  The applicant’s principal job was in Colombo.  His boss there was a Sri Lankan Tamil whose business involved recruiting Sri Lankans for employment in the Middle East.  The customers were almost exclusively Tamils from Jaffna.  Part of the service offered by the business was securing accommodation for the customers in Colombo while arrangements were being made for them to go abroad.  The applicant helped find lodgings, taught the customers some Sinhalese and generally helped them acclimatise to Colombo.  The applicant said he became close to his boss.  He came to realise that the boss was distributing money to the Tamil Tigers which came from supporters in Europe via the Middle East.  He was also supplying explosives to Colombo‑based members of the LTTE and dealing in drugs to raise money for the LTTE.  He witnessed his boss directing Tamil customers to deliver dynamite from one place to another, and saw dynamite and batteries being handled.  The applicant kept packets of drugs in his office, and when customers gave him the right password he would hand them over.  The applicant also discovered that some of the customers were involved in a terrorist explosion in Colombo.

3                     The applicant said he found himself in a dilemma.  He was afraid to tell the police lest he raise suspicions that he was involved in LTTE terrorism.  Nor could he give up his job since his boss knew the applicant was aware of his activities, and the LTTE or underworld groups would kill him if he left.  Further, his boss had a close relationship with the police.  The applicant decided to leave the country without telling anyone.  He arranged a student visa for Australia and departed.

4                     Approximately four months after his arrival in Australia (that is to say in late November/early December 1995) the applicant heard that members of the government’s Special Task Force had raided and sealed the business, and had arrested his father and detained him for a week.  As part of his submissions to the Tribunal dated 29 January 1999 the applicant provided a letter from his father dated 10 January 1996 referring to the detention.  The applicant said that subsequently the LTTE searched for him because, he claimed, they suspected he had acted as a police informer.  In support of that claim he provided a letter from a friend dated 2 March 1996 in which it was stated that unknown young men had come to the friend’s house enquiring after the applicant.  The applicant told the Tribunal he had not provided the letters earlier because he had moved house and had lost his job, and had only recently found the letters.  He then had to wait to obtain money in order to have them translated.

5                     The applicant told the Tribunal he did not apply for a protection visa when he arrived in Australia because he had permission to remain temporarily, and believed the situation in Sri Lanka might improve, as the new People’s Alliance government was committed to a peaceful resolution of the war with the LTTE.  Nor was he moved to apply for a protection visa when his father was detained because there was peace in Sri Lanka and he anticipated there would be an amnesty for people associated with the LTTE.  However he realised after two years that government peace policies had failed, and he sought protection because he feared he would be suspected of supporting the LTTE.

6                     More recently a Buddhist temple close the applicant’s house in Kandy was the target of a bomb attack.  The applicant’s father wrote to him stating that the police had come to the house and harassed the family.  He said that whenever the police came to the house they asked about the applicant’s whereabouts.  The applicant claims he is suspected of affiliation with the LTTE terrorists who attacked the temple.

TRIBUNAL’S REASONING

7                     The Tribunal accepted that the applicant is a Tamil‑speaking Muslim from Kandy and that he worked in a business that arranged for Tamils from Jaffna to work abroad.  However it regarded as far‑fetched his claim that he became so close to his boss that he was perceived to be a supporter and assistant of the LTTE.  After setting out the details of the applicant’s claim in this regard, the Tribunal said:

“The Tribunal is incredulous that an organisation as sophisticated and ruthless as the LTTE, which has conducted a war with the Sri Lankan authorities for some twenty years, would permit a non‑member from an ethnic group which opposes LTTE aims to witness arrangements being made to conduct terrorist attacks in Colombo.  It is equally incredulous that it would allow him to become privy to fund raising methods and the people involved in those methods.  Further, he appears to have been involved in such activities without any claim that he has personally benefited from them, despite the dangers, and despite the fact that his own ethnic group of Tamil Muslims have been the victim of LTTE atrocities.”

8                     After examining the place of Muslim Tamils in Sri Lanka and their relations with other ethnic groups, and tracing the attitude of the LTTE to Muslims in the 1980s and 1990s, the Tribunal returned to the applicant’s asserted closeness with his boss and the boss’s illegal activities.  It said:

“It is inherently implausible that the LTTE would allow the Applicant to become privy to its innermost secrets about how it conducts its operations in the capital city.  In light of general relationship between Muslim and Hindu Tamils, the Tribunal does not accept that the Applicant would fear reporting what he had found out to the police.  He said he did not report it because he believed he would be implicated in illegal activities and because he feared the LTTE.  He belongs to an ethnic group that is distanced from the Tamil Tigers and he would have been assisting the security forces to combat terrorism in Colombo, as well as detain cadres of the Tigers.  There is no doubt that the LTTE conducts a serious campaign in Colombo, as well as in the North and East, but the available information indicates that its limited resources in Colombo are used for targeting high profile officials or institutions, where it can maximise its effects.  To this end, there have been attacks on banks, fuel depots, trains, the Buddhist temple in Kandy and so on, as well as senior political and security figures.  There is no information to indicate the LTTE expends its resources and risks its members and strategy by attacking people such as the Applicant.”

9                     The Tribunal then rejected the applicant’s explanation of why he did not seek asylum when he arrived in Australia.  It referred to information from independent sources that showed there was not, as the applicant claimed, peace in Sri Lanka in mid‑1995.  The peace between the LTTE and the People’s Alliance had collapsed in April 1995, and the war had quickly escalated to its former proportions.  The Tribunal thought far‑fetched the applicant’s claim that he anticipated an amnesty, if as he claimed he was knowingly involved in the transfer of explosives to be used in terrorist attacks and the sale of drugs for profit to be used to fund terrorism.  The applicant’s explanation for not claiming asylum when he arrived in Australia mis‑stated the true situation in Sri Lanka, and indicated that the real reason he had not made an earlier application was that his fears were neither as profound nor as genuine as he professed.

10                  The Tribunal rejected the applicant’s claim that he was not able to submit the supporting letters from his father and his friend until almost three years after receipt.  It noted that the applicant speaks, reads and writes English, that he came to Australia to study a course conducted in English, and that his work references are in English.  He could have translated significant letters himself.  The Tribunal observed that neither the father’s January 1996 nor the friend’s March 1996 letter caused the applicant to seek protection, despite the fact that the father’s indicated that the police had information that the applicant was associated with the LTTE, that his father had been detained because of that association, and that the friend’s letter described the visitors as “like mass murderers”.  The Tribunal considered that the reason those letters were not produced until just before the hearing was “because he contrived them at a later date and concocted the reasons he had not produced them previously”.

11                  The Tribunal concluded with this summary:

“the Tribunal finds that he has concocted his story that he was so close to an LTTE cadre that he became privy to LTTE operations and is suspected of being an LTTE supporter by the security services.  It is also satisfied that he was never privy to such operations and that the LTTE will not attack him for the reasons he has described should he return to Sri Lanka.  His failure to make timely application or to submit evidence in a timely manner undermines the strength of his fears of persecution.  There is no acceptable evidence before the Tribunal to support a claim that he has, or is imputed to have, political opinions that oppose those of the government or that he may be a danger to the LTTE.”

GROUNDS OF REVIEW

Failure to make findings on material questions of fact ‑ s 430

12                  Section 430(1)(c) requires the Tribunal to prepare a written statement setting out its findings on any material questions of fact.  Paragraph (d) requires it to refer to the evidence and other material on which those findings were based.  In The Minister v Singh [2000] FCA 845 at pars 54 to 57 the majority of the Full Court (Black CJ, Sundberg, Katz and Hely JJ) said:

“54      … Whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision.

55.              The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision.  Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it.  Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them ...

56.              Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.  But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with …

57.              … A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.”

13                  The applicant submitted that the Tribunal had failed to make findings on four material questions of fact.  The first is that it made no finding about the applicant’s claim that his father had been detained in January 1998, following the temple bombing.  The first claimed detention, to which the Tribunal did refer, was in December 1995.  In his written submission to the Tribunal the applicant said that on 26 January 1998 LTTE suicide bombers bombed the temple.  The family house, which is 500‑700 metres from the temple, was damaged.  Thereafter the authorities gave a lot of trouble to his family and took his father into custody a second time.  The reader of the submission is then asked to refer to a letter from the father dated 20 February 1998, which is in part as follows:

“last month LTTE, with the help of a suicide squad has destroyed the front portion of Dalada Maligawa.  Because of this, the Police came to our house and harassed us who never had any connection with it.  … Further, whenever the Police visit our house, they always ask seriously about your whereabouts.”

The Tribunal appears to have treated the 1998 letter as genuine. The letter does not mention any detention.

14                  In Logenthiran v The Minister (1998) 56 ALD 639 a Full Court concluded that there was a breach of s 430(1)(c) because the Tribunal had not dealt with claims made by the applicant that he had twice been arrested, detained, interrogated and tortured shortly before his departure from Sri Lanka.  These were, obviously, central to his claim that he feared persecution on his return.  In Kandiah v The Minister [1998] FCA 1145 the applicant’s claimed fear of persecution if he returned to Sri Lanka was based on his detention and torture at an army camp.  He claimed he was so badly beaten that he was hospitalised for a month.  He relied on letters from his treating doctor confirming his treatment.  The Tribunal disbelieved the applicant’s story about his detention and hospitalisation, but did not refer to the letters.  This was a failure to comply with s 430(1)(c).  Finn J was of the view that if the letters were accepted as genuine, they were capable of corroborating in a significant way the “factual centrepiece” of the applicant’s claim of persecution untainted by any adverse view that might otherwise be taken of his credibility.  The facts in Thevendram v The Minister [1999] FCA 182 were similar to those in Kandiah.  The Tribunal did not accept that the applicant was viewed by the authorities as being a supporter of the LTTE in Sri Lanka.  His case that the authorities did so view him was supported by letters from his wife, who was still in Sri Lanka, to which the Tribunal did not refer.  The Full Court concluded that the Tribunal had failed to comply with s 430(1)(c).  If the claim in the letters was accepted, that was capable of supporting in a significant way the “factual centrepiece” of the applicant’s case, and was thus a material fact.  The Full Court said the Tribunal must make findings on the questions which are central to the case raised on the material and evidence before it.

15                  The present case is unlike those discussed in par 14.  Logenthiran was a very clear case.  The applicant’s fear of persecution was said to be founded on the arrest, detention, interrogation and torture he alleged had led him to leave Sri Lanka.  Yet the Tribunal made no finding about the claimed incidents.  In Kandiah and Thevendram the Tribunal did not regard the applicant as a credible witness.  But his disbelieved claim that he feared persecution was supported by the letters to which the Tribunal did not refer.  In all three cases, the material to which no reference was made and about which no findings were made bore directly on the “factual centrepiece” of the applicant’s claim to persecution yet, so far as appeared, the Tribunal ignored it.  That is not the present case.  The factual centrepiece of the applicant’s claim was that he was associated in the minds of the authorities with the LTTE.  The Tribunal accepted the applicant’s claim that the LTTE was responsible for the bombing, but found that the family house was searched because it was nearby and not because the authorities were looking for the applicant or suspected him of involvement.  Accordingly, the claimed detention of the father in the course of the investigation following the bombing did not bear on the applicant’s claim that he feared persecution because the authorities regarded him as an LTTE supporter.  The reason for the authorities’ interest in the applicant’s house and family after the bombing was not related to any perceived LTTE profile on the applicant’s part or any suspicion that he was involved in the bombing.  The claimed detention is thus not a material question of fact: see Singh at par 55, because the Tribunal’s decision did not turn on whether the father had or had not been detained after the temple bombing.  The Tribunal’s treatment of the temple bombing incident did not involve a failure to comply with s 430(1)(c).

16                  I note in passing that on reading the Tribunal’s decision the applicant could have been in no doubt that the Tribunal had rejected the arrest part of his account of the temple bombing incident.  The principal purpose of the requirement that the Tribunal set out its findings on material questions of fact is so an applicant can understand how the Tribunal dealt with his important claims.  In Logenthiran, Kandiah and Thevendram the Tribunal simply ignored the material that bore on the factual centrepiece of the applicant’s claim, and the reader was left in the dark as to the Tribunal’s attitude to an incident or event.  That is not the case here.  The applicant asked the Tribunal to make findings in accordance with his statement, and he referred the Tribunal to his father’s letter as verification.  It is clear that the Tribunal accepted part of the applicant’s claim surrounding the temple bombing and rejected the balance of the claim, which was not verified by the letter.  On reading the relevant paragraph of the Tribunal’s reasons the applicant would understand that the Tribunal had accepted his account only to the extent that it was so verified, and had not accepted the claim that the father had been detained.  Even though the Tribunal was dealing with a piece of information that did not directly bear on the applicant’s claim that he was suspected by the authorities of being a supporter of the LTTE, the Tribunal clearly, though implicitly, rejected it.

17                  The second complaint is that the Tribunal made no finding that the father advised the applicant that he should not return home.  This advice was contained in the father’s letter of 10 January 1996.   The Tribunal found that the father’s January 1996 letter was “contrived … at a later date”.  This finding carried with it a rejection of the letter’s components.

18                  The third complaint is that the Tribunal made no finding about the applicant’s claim that he left Sri Lanka four days after his wedding.  The applicant’s case was that he came to Australia to study for two or three years after which he intended to return to Sri Lanka.  He thought the circumstances that caused him to leave would not subsist after two or three years.  That was why he did not apply for a protection visa when he arrived.  But then he received his father’s January 1996 letter, which changed matters completely.  He consulted a lawyer because he wanted to obtain a protection visa.  But he had second thoughts because the new government arranged speedy peace talks with the LTTE.  He thought that if the talks were successful there would be an amnesty for those who had engaged in terrorist activities.  That was why he did not apply for a visa earlier than he did.  He added that if he had intended all along to stay in Australia, he would have brought his wife of four days with him.

19                  As I have said, the Tribunal rejected the father’s 1996 letter as a contrivance.  It rejected his claim that peace had broken out in early‑mid 1996.  It refused to accept his “far‑fetched” claim that there would be an amnesty.  It did not believe his stated reasons for delaying making a visa application.  All these findings were directed to the applicant’s claim that when he arrived in Australia there was no reason for him to seek protection.  The material fact in question was the applicant’s claim that there were good reasons for him not making an earlier protection application.  The Tribunal made its findings on that point:

“In the circumstances, the Applicant’s explanation for not submitting a timely application for protection is not accepted.  It mis‑states the true situation in Sri Lanka and indicates that the Applicant’s real reason for not making application was that his fears were neither as profound or as genuine as he would have the Tribunal believe.”

The Tribunal was not obliged to deal with all pieces of evidence relating to the material fact in question, namely whether or not there were good reasons for him not submitting an earlier visa application.  There is a distinction between material questions of fact and pieces of evidence: Wu Jian Wu v The Minister [1997] FCA 316; Singh pars 56 and 59.  Having so clearly rejected the applicant’s case on delay, the Tribunal was under no obligation to give reasons for rejecting or attaching no weight to one other piece of evidence that might be thought to be inconsistent with its conclusion: Arudselvan v The Minister [1999] FCA 1726; Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; Singh at pars 12 and 46.  In Singh at par 64 the majority said:

“A failure to comply with s 430 is not made out by reason only of a failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it made on an issue.”

20                  The next complaint is that the Tribunal made no finding as to the applicant’s motive for leaving Sri Lanka at the time and in the way he did.  The applicant’s case was that he left Sri Lanka because he came to realise that the business for which he worked was heavily involved with the LTTE, and that his close links with his boss meant he was perceived to be a supporter of the LTTE.  The Tribunal rejected this claim and gave detailed reasons for so doing.  See pars 7 and 8 above.  The Tribunal’s findings included:

·               that the LTTE would not allow the applicant to become privy to its innermost secrets about how it conducts its operations in the capital city

·               that the applicant would not fear reporting to the police what he had found out

·               that the LTTE does not expend its resources and risk its members and strategy by attacking low profile people such as the applicant.

The requirement to set out findings on any material question of fact did not oblige the Tribunal to state positively why it thought the applicant had left Sri Lanka.  The material fact in question was whether the applicant had left for the reasons he asserted.  The Tribunal found he had not, because it did not believe his claims that he was so close to an LTTE cadre that he became privy to LTTE operations and was suspected by the security forces of being an LTTE supporter.

21                  The final complaint is that the Tribunal failed to identify the “inconsistent statements” it said the Tribunal had made.  In its introductory remarks about credit, the Tribunal said the applicant had made “some inconsistent statements, particularly some that are at odds with materials from third sources, and he has added to his claims in successive submissions or provided evidence in an untimely manner”.  The opening lines of this passage are a little confusing.  It is not clear whether the Tribunal is speaking of statements made by the applicant that are inconsistent with other statements made by him, statements made by the applicant that are inconsistent with third party materials, or both.  It is probably intending to refer to both, though the language is infelicitous.  But having regard to the introductory character of the opening lines of the Tribunal’s paragraph dealing with “Discussion and Findings”, the Tribunal was not obliged then and there to identify the “inconsistencies”, so long as in the course of its reasons it does so.  And it does.  For example, the Tribunal identifies an inconsistency in relation to the applicant’s escape from Sri Lanka.  He said he had not told anyone of his escape.  Yet he obviously told his Kandy employer, for the applicant produced a letter in English from the employer recommending him to foreign institutions.  However, the Tribunal attached more importance to external inconsistencies.  For example, it pointed out that the applicant’s claim that there was peace in Sri Lanka when he arrived in Australia was inconsistent with information from independent sources.  There is nothing in this complaint.  It amounts to no more than an assertion that because inconsistencies are referred to in a particular paragraph, they must be identified in that paragraph.

Failure to refer to evidence

22                  The only complaint here relates to the Tribunal’s statement that “there is no information to indicate that the LTTE expends its resources and risks its members and strategy by attacking people such as the Applicant”.  The applicant claims that, in breach of the requirement in s 430(1)(d), the Tribunal failed to refer to the evidence on which the “finding” was based.  It was contended that the Tribunal was obliged to refer to reports submitted by the applicant which, he said, provided evidence that contradicted the finding.  The Tribunal’s statement is not in my view a finding for the purposes of s 430(1)(d).  But in any event, the passages in the reports relied on do not support his contention.  The first was the statement in an August 1996 Amnesty International Report that in the period under review (semble early 1995 to mid 1996) there were reports of grave human rights abuses by the LTTE, including deliberate and arbitrary killings of Sinhalese civilians, summary execution of Tamil people considered to be “traitors”, and torture and ill‑treatment of prisoners.  The second is in a 1998 Amnesty Report stating that the LTTE was responsible for grave human rights abuses in Jaffna.  Several people were detained and held on suspicion of being army informants, and one man was shot dead because he was an army informant.  The third passage is from a 1993 Amnesty Report stating that the LTTE has committed numerous human rights abuses, including the execution of informers, killing of Muslim and Sinhalese civilians and torture of prisoners, but that during 1993 the LTTE had altered its tactics in accordance with “certain humanitarian norms”.  This material does not cast doubt on the Tribunal’s statement that there is no information that the LTTE expends its resources attacking people “such as the applicant”.  The first and second passages do not apply to him.  He is neither a traitor nor an army informant.  The third passage relates to a period before 1993 and to LTTE conduct that is said to have ceased two years before the applicant left Sri Lanka.

Decision not authorised by Act/no jurisdiction: s 476(1)(b) and (c)

23                  The matters relied on under the s 430 ground were repeated under these heads (s 476(1)(b) and (c)) without elaboration.  For the reasons given above, they have no substance in this context.

Improper exercise of power: s 476(3)(c)

24                  Two complaints were made under this head.  The first was that the Tribunal acted in accordance with a rule or policy in relation to its finding that the applicant had not made a timely application for a protection visa.  Although the Tribunal recorded that the applicant had obtained a class 435 visa, it did not refer to this in its reasoning process.  This, it was said, showed that the Tribunal was applying a rule or policy that an applicant’s failure to apply for a protection visa shortly after arriving in Australia indicates that a later application is not genuine.

25                  The applicant arrived in Australia in July 1995. He did not obtain the class 435 visa until a year later.  He told the Tribunal he did not seek asylum when he arrived in Australia because there was peace in Sri Lanka.  The Tribunal did not accept this explanation.  It referred to information from independent sources that the peace had collapsed in April 1995, and the war had quickly escalated to its former proportions.  The Tribunal was of the view that the applicant would have been aware of this.  It concluded that his real reason for not making an application soon after his arrival was that his fears were neither as profound nor as genuine as he professed.

26                  The basis for the applicant’s rule or policy submission, namely the acquisition of a class 435 visa in mid-1996, has no relevance to the reason why he did not apply for a protection visa when he arrived in Australia a year earlier.  By reference to independent sources the Tribunal rejected the reason advanced by the applicant. 

27                  The second complaint was that the Tribunal acted in accordance with a rule or policy in relation to its finding that the applicant had failed to submit evidence in a timely manner.  Nothing in the Tribunal’s reasons supports this complaint.

Error of law

28                  The only error of law not the subject of submission under grounds of review already discussed relates to the Tribunal’s finding that the applicant failed to submit evidence in a timely manner.  This is said to be an error of law because it amounts to a finding that “disobedience to the Tribunal’s own instructions is to be counted against an applicant’s claim”.  This is a reference to a letter sent to the applicant in 1998, two years after the father’s first letter and the friend’s letter, though shortly before the father’s second letter, in which it is said that any documents not in English must be translated into English by an accredited translator or recognised translation authority.  There is no evidence that this requirement was in place in 1997.  But even if it was, there is no error of law in the Tribunal’s statement that the applicant “could have translated significant letters himself, with an explanation as to why they were not translated by a qualified translator”.  Although the Tribunal did not mention the fact, the 1996 letter from the friend was in English and required no translation.

No evidence ‑ s 476(4)(b)

29                  Two complaints were made under this head.  The first was that the Tribunal based its decision in whole or in part on a non‑existent fact, namely that there was no information to indicate the LTTE expends its resources by attacking such people as the applicant.  I have dealt with and rejected the contention that there was information to that effect.  The second complaint was the Tribunal based its decision on another non‑existent fact, namely that the applicant could himself have translated the letters.  This was apparently because of the “standard instruction” that letters in foreign languages were to be translated by accredited translators.  There is no substance in this ground.  What the Tribunal said was correct.  It was not a non‑existent fact for the purpose of s 476(4)(b).

Bias ‑ s 476(1)(f)

30                  The submission was that the Tribunal has shown by its findings of fact, especially in relation to the timing of the application for a visa, the timing of the submission of the letters, its reference to unidentified inconsistencies and its rejection of the applicant’s case based on his boss’s connection with the LTTE, that it was not actually open to persuasion.  Actual bias may be established as an inference from circumstances.  The question is whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially.  Actual bias is not confined to an intentional state of mind.  Bias may be subconscious, provided it is real.  Nevertheless, a finding of actual bias is a grave matter, not lightly to be arrived at.  See Sun v The Minister (1997) 81 FCR 71 at 127.  In that case two members of a Full Court concluded, from a striking concatenation of circumstances, that the actual bias ground was made out.  The circumstances included the repeated drawing of extremely adverse conclusions against the applicant on the flimsiest grounds, the rejection of evidence that an earlier Tribunal member had accepted after rigorous oral examination of the applicant, paying no regard to the earlier Tribunal’s findings, finding that evidence was fabricated on the basis of material that came nowhere near justifying such a conclusion, the “astonishing” drawing of an extreme conclusion adverse to the applicant, seizing upon a relatively minute detail to find a clear indication of fabrication, and the use of highly coloured language in rejecting claims which was impossible to match with the tenor of the applicant’s evidence.  These and other errors, said Burchett J, argued overwhelmingly that the Tribunal approached the case from a preconceived opinion and a fixed position so adverse to the applicant that he could not obtain a fair hearing.

31                  The Tribunal had the benefit of seeing and hearing the applicant.  It considered him an untruthful witness who contrived evidence and concocted stories, and made a series of findings adverse to him.  They were findings clearly open to the Tribunal.  They were not findings made on flimsy grounds.  There is to my mind nothing astonishing about them.  The four matters particularised go nowhere near establishing a prejudgment of the case, even in some respect,  so as to show an inability or unwillingness to decide it impartially.  They can be dealt with briefly here, because they have been considered elsewhere.  The rejection of the applicant’s claim based on his boss’s connection with the LTTE was said to show actual bias because it was contrary to evidence that the LTTE did attack people such as the applicant.  The material relied on does not make that point (see par 23), and the claim evaporates.  There is no substance in the unidentified inconsistencies point.  The reference to inconsistencies appears in the Tribunal’s general opening remarks, and the inconsistencies are identified later in the reasons for decision.  The Tribunal’s finding that the applicant contrived the letters at a time later than the dates they bear, and concocted the reasons he had not produced them previously, was a finding made after seeing and hearing the applicant deal with the suggestion that in view of their dates he could have submitted them earlier.  The Tribunal quite reasonably observed that if the letters were genuine, there was no reason why the applicant could not have translated those that required translation and submitted them with an explanation as to why they were not translated by a qualified translator.  It is to be remembered that one of the letters required no translation.  While actual bias can be established as an inference from circumstances, a finding adverse to an applicant based on an assessment of his credit does not itself make the point.  The final matter relied on was the Tribunal’s rejection of the applicant’s reasons for not applying for a protection visa much earlier than he did.  The applicant claimed he did not seek asylum when he arrived in Australia in mid‑1995 because there was peace in Sri Lanka and he believed things might improve.  The Tribunal’s rejection of this claim was based on independent evidence that the peace between the LTTE and the People’s Alliance had collapsed in April 1995 and the war had quickly escalated to its former proportions.  A claim of actual bias should not be made when all a Tribunal has done is act in accordance with independent evidence.

The matters relied as showing actual bias, taken together as they must be, do not come anywhere near establishing such a case.

CONCLUSION

32                  None of the grounds of review has been made out, and the application must be dismissed with costs.

Associate:

Dated:              8 August 2000