FEDERAL COURT OF AUSTRALIA

Mariathasan v Minister for Immigration & Multicultural Affairs [2000] FCA 1636

MIGRATION – whether the Tribunal’s finding as to credibility was based on the existence of particular facts that did not exist.

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

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

Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119 referred to

Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 referred to

Re Refugee Review Tribunal;  Ex parte Aala [2000] HCA 57 referred to

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

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

Careem v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 343 referred to

Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 referred to

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 referred to

Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 followed

ASEERVATHAM JOSEPH MARIATHASAN AND JEYAMANY MARIATHASAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. 879 OF 2000

JUDGE:          BEAUMONT J

DATE:            22 NOVEMBER 2000

PLACE:          SYDNEY

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal dated 6 July 2000 be set aside.

2.                  The matter be remitted to the Tribunal for reconsideration according to law.

3.                  The respondent pay one-half of the applicant’s costs of the proceedings.

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

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1                     This is an application for an order of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming the decision of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicants protection visas.  The first applicant is a 65 year old citizen of Sri Lanka.  The second applicant, his wife, is a 64 year old citizen of that country.  They arrived in Australia on 21 February 1998.  In April 1998 they applied for protection visas.  In May 1998 the Minister’s delegate refused their application.  On their application to review that decision the Tribunal, by its decision dated 6 July 2000, affirmed the delegate’s decision.  The applicants now ask for judicial review of the Tribunal’s decision.  In essence the grounds of the present application are that the Tribunal’s reasons for making a central finding are said to contain errors which, taken individually or collectively, give rise to one or more reviewable errors under s 476(1) of the Migration Act 1958 (Cth) (“the Act”).

2                     In order to understand the basis for the application, it will be necessary to explain the Tribunal’s relevant findings and its process of reasoning.

THE TRIBUNAL’S REASONS

3                     The Tribunal noted that only the first applicant thereafter (and hereafter referred to as “the applicant”) had made specific claims under the Convention and that these claims were made in several forms: in the visa application made to the Department, in written submissions to the Tribunal and in oral evidence to the Tribunal.

4                     The Tribunal noted (relevantly) that the following claims were made to the Department in April 1998:

·        The applicant was born in Kayts in northern Sri Lanka.

·        Between 1935 and 1988 the applicant resided in Jaffna.

·        Between 1955 and 1972, the applicant worked in Sri Lanka as a schoolteacher.  He left Sri Lanka in 1972 on an employment contract to Zambia, where he taught until 1988.

·        On 3 June 1990, the applicant commenced to carry on business as a “multi trade and sales centre” at 161 Main Street, Jaffna under the business name “Das Complex”.  But on 18 June 1990, he was forced to shut the business down and run for safety when the LTTE made an attack upon the Sri Lankan Army.

·        In 1991, the LTTE expelled the Muslim community from the Jaffna area and took possession of all their properties and belongings.

·        A few months after the expulsion of the Muslims, LTTE officers asked the applicant to buy a bulk of second-hand items from the LTTE.  The applicant refused on the ground that he did not buy goods, but only auctioned goods on a commission basis.  The officers insisted that they be permitted to use the applicant’s auction facilities.

·        In 1995 the Sri Lankan Army again captured the Jaffna Peninsula from the LTTE.  The applicant who, like the majority of Tamils, was a supporter of the LTTE, had to move from Jaffna to Mirusuvil, about fifteen kilometres away.  But upon assurances being given on behalf of the Army that Tamils who returned to Jaffna would not be harassed, the applicant returned in April 1996.

·        Upon his return the applicant discovered that his house had been bombed and looted.  Over a long period he restored and repaired the house.  He was forced to sell his business at a loss.

·        In 1997, a number of Muslims returned to Jaffna to reclaim their properties.  In November 1997, two Muslims asked the applicant about the sale of second-hand items belonging to them, but then in the applicant’s possession.  The applicant explained the involvement of the LTTE in this connection in 1991.  The Muslims expressed their suspicion that the applicant had bought and sold their goods on behalf of the LTTE, and abused the applicant.  In December 1997, they demanded money from the applicant for their goods.

·        In March 1998 (after his arrival in Australia) the applicant was informed that Army personnel and pro-government militant groups had gone to his house in Jaffna looking for the applicant, and spoken to his cousin, who informed them that the applicant was visiting his sick sister in Singapore.  The Army personnel said that they wished the applicant to appear before them to defend charges relating to complaints made by the Muslims.  They threatened to take the applicant’s cousin into custody if the applicant did not appear.

·        A few days later, the Muslims threatened to murder the applicant’s cousin if they were not paid for their goods, informing him that they had told the Army that the applicant and his whole family were LTTE supporters.

·        Later in March 1998, the applicant was informed by other sources in Sri Lanka that the Army and the Police were looking for him.

·        If the applicant was returned to Sri Lanka, he feared that he “would be arrested, tortured and liquidated”.

·        Because his nephew has been a full time member of the LTTE since 1990 and because the applicant’s business premises were used by the LTTE, the applicant has been branded as an LTTE collaborator.

5                     The Tribunal noted that the applicant made further claims in a written submission to the Tribunal dated 18 April 2000, where the applicant repeated much of the history of events described in his earlier statement, claiming that he had been targeted by the Sri Lankan Army and subject to systematic harassment since 1972.

6                     The Tribunal noted that at the hearing before it, the applicant had made two main claims: (1) that because of his nephew’s involvement with the LTTE and the applicant’s contact with his nephew, the applicant was suspected of LTTE involvement; and (2) that because of the applicant’s involvement with the LTTE through his business, the applicant was suspected of being a member of LTTE.

7                     The Tribunal went on to refer to answers given by the applicant to questions the Tribunal had put to him.  In the course of this, the Tribunal noted as follows:

“According to the applicant’s statement he returned to Jaffna in 1996.  The Tribunal asked the applicant why did he return to Jaffna if he thought his businesses had been targeted because of his suspected LTTE involvement and he was concerned about being branded an LTTE member because of his past involvement with the LTTE.  The applicant stated that he did not have any alternative place and the army was encouraging people to return.  The Tribunal pointed out that the applicant was aware of the mistreatment of LTTE suspects and yet he returned.  The applicant stated that at this stage the army did not have information about his LTTE connections.

The applicant confirmed that he was approached by two Moslem men who were enquiring about the sale of second hand items which had belonged to them.  He confirmed that this was in mid-November 1997.

The Tribunal asked the applicant when did these Muslims make their complaint to the army?  The applicant stated that it must have been after January 1998.  The Tribunal pointed out to the applicant that according to his claims the Moslem men abused and threatened him in December 1997, why would they wait until after January to make their complaint.  The applicant stated that he could not suggest a reason for the delay.  [Emphasis added]

The Tribunal noted the applicant’s claim that he was informed by his cousin on 12 March 1998 [after his arrival in Australia] that Army personnel along with some pro-government militant groups had gone to his house to find out the whereabouts of the applicant, and have asked that the applicant appear before them in their office within a month’s time to defend the charges relating to complaints made by the Muslim men.  This claim suggests that the authorities had ever[y] intention of pursuing the complaint through legal channels.  The applicant responded that at that time people were asked to appear and then some of them disappeared.

The Tribunal noted that given that the applicant obtained … permission to depart Jaffna from the army, they would have already been aware that he had left – why would they go looking for him.  The applicant responded that it may have been a different section of the army.

The applicant confirmed that he had no difficulties obtaining his passport or departing Sri Lanka.”

8                     The Tribunal went on to say:

“The Tribunal asked the applicant if he had any contact with the LTTE other than through his business.  The applicant stated that the LTTE came to his workshop frequently, that he framed pictures for them for Heroes Day, and that he was quite public about his support for the LTTE.

The Tribunal noted to the applicant that according to his statement to the Department of Immigration [at paragraph 3.k.] he was very reluctant to assist the LTTE in selling these goods.  Yet he was now claiming that he was a supporter of the LTTE.  If he was a supporter of the LTTE as he claimed why would he be reluctant to accept these goods.  The applicant stated that he did not want to be identified publicly with the LTTE.  The Tribunal pointed out to the applicant that according to his claims he had been public in his support for the LTTE – such as decorating his business for heroes day and other activities.

The Tribunal referred the applicant to a letter from the Bishop of Jaffna, dated 30 June 1999.  The Bishop makes no mention of any of the problems the applicant claimed to have undergone in relation to being suspected a member of the LTTE.  What is telling about this letter is that he suggests that the reason he left Sri Lanka was because he was in ill-health and wish[ed] to join his children in his ‘remaining years’ – and not for Convention related reasons.  The Tribunal asked the applicant to comment.  The applicant responded that he did not request this letter to have his ‘details’.”

9                     Turning to the “independent evidence” (in the main, reports by the US State Department and by the Australian Department of Foreign Affairs and Trade (DFAT)), the Tribunal referred to general background information to the effect that the ongoing war with the LTTE continued to be accompanied by serious human rights abuses by the security forces;  that the typical profile of persons who would fall under scrutiny by the security forces continues to be young Tamils from the north or east, but particularly those from the Jaffna Peninsula;  that the LTTE had discriminated against Muslims and in 1990 had expelled them from areas under LTTE control in the northern part of Sri Lanka;  that the passport of a person who has been arrested on suspicion of LTTE involvement often is impounded;  and that a person who is given a security clearance to proceed to Colombo is not likely to be of interest to the security forces and would have no trouble obtaining a passport and leaving the country.

10                  The Tribunal then expressed its findings and reasons as follows:

·        The Tribunal found that the applicant did not have a well-founded fear of harm by the Sri Lankan authorities by reason of his imputed political opinion arising from his familial relationship with his nephew (this finding is not challenged in these proceedings).

·        With respect to the applicant’s claims that he feared harm by the Sri Lankan authorities because of his business dealings with the LTTE, namely that items confiscated from Muslims when they were expelled from Jaffna were sold at his shop, and six years later when the Muslims returned, they discovered that the applicant had been involved and made a complaint to the Army, the Tribunal said:

“There were a number of significant inconsistencies between the applicant’s claims and evidence in regard to this claim, as well as significant implausibilities, that give rise to a lack of satisfaction that these claims are credible ….”

11                  The Tribunal went on to say (the paragraph numbering has been added for ease of reference):

“[1]     The applicant claimed that he was approached by Moslems in late 1997 and questioned about their possessions which had been confiscated in 1991.  The Tribunal noted that in documents the applicant submitted to the Department of Immigration he stated that the LTTE sold the items confiscated from Muslims through four other outlets and yet there is no evidence to suggest that the proprietors of these other outlets were ever approached in the same manner.  The applicant accounted for this by claiming that these outlets had closed down – although he has provided no evidence to support this allegation.  The Tribunal does not accept the applicant’s explanation as reasonable, and finds it implausible that he – of the five outlets selling these goods – would be the only proprietor approached about this matter.

[2]        The Tribunal also finds it implausible that six years after the event the Moslems would have found out that their goods were sold through the applicant’s business.  The applicant stated that they ‘must have got the information’.  He provided no explanation as to how the Moslems ‘got the information’.  The [T]ribunal does not accept as credible the applicant’s explanation, which is unsatisfactorily vague.

[3]        The applicant claimed that he was approached by two Moslem men who were enquiring about the sale of second hand items, which had belonged to them.  He confirmed that this was in mid-November 1997.  He claimed that they made their complaint to the army after January 1998.  The applicant claimed that they were extremely angry with him.  [The] Tribunal therefore finds it implausible that these persons would wait two months to make their complaint to the army given their extreme anger.  The applicant stated that he could not suggest a reason for the delay.

[4]        The Tribunal noted the applicant’s claim that he was informed by his cousin on 12 March 1998 [after his arrival in Australia] that Army personnel along with some pro-government militant groups had gone to his house to find out the whereabouts of the applicant, and have asked that the applicant appear before them in their office within a month’s time to defend the charges relating to complaints made by the Muslim men.  Given that the applicant obtained his permission to depart Jaffna from the army, they would have already been aware that he had left – and it is implausible they would then go looking for him.  The applicant’s explanation was to the effect that ‘it may have been a different section of the army’.  The Tribunal does not find this explanation to account for this implausibility and gives it no weight.

[5]        Furthermore, and of significance, is the applicant’s claim that the authorities sought him out in March 1998 – conveniently after he had departed Jaffna.  The Tribunal finds it highly implausible that if the complaint was made in January as claimed by the applicant, the authorities delay[ed] two months before approaching the applicant.

[6]        The Tribunal notes that the applicant claimed [in his written submission to the Tribunal] that the authorities were pursuing him to Colombo, and yet in his application form he stated that he obtained his passport legally and without any problems.  The fact that the applicant encountered no problems obtaining a passport and departing the country without difficulty contradicts the applicant’s claim that he was being pursued by the authorities.  The Tribunal cannot be satisfied that the applicant was being pursued by the Sri Lankan authorities as claimed.

[7]        The Tribunal notes that although the applicant has maintained throughout his applications that the Moslems approached the army to make their complaint, however, according to a letter dated 27 March 1998 from a Mr M. Louis [the applicant’s cousin] the Moslems made their complaint to the police in Jaffna not the army.  The applicant stated that he heard the news by the telephone that it was the army so he wrote in his application that it was the army.  However the letter from Mr Louis was included in the applicant’s submission to the Department of Immigration – so he was aware at the time he made his submission that the complaint was made to the police.  This significant inconsistency gravely undermines the applicant’s credibility that the Moslems approached the army.

[8]        The Tribunal notes that according to his statement to the Department of Immigration [at paragraph 3.k.] he was very reluctant to assist the LTTE in selling these goods.  However the applicant has made contradictory claims that he was actually a supporter of the LTTE and had assisted them willingly.

[9]        The Tribunal notes that in a letter from the Bishop of Jaffna, dated 30 June 1999, the Bishop makes no mention of any of the problems the applicant claimed to have undergone in relation to being suspected a member of the LTTE.  In fact, in this letter the Bishop suggests that the reason the applicant departed Sri Lanka was because he was in ill-health and wish to join his children in his ‘remaining years’ – and not for Convention related reasons.  The applicant’s explanation was that he did not request this letter to have his ‘details’.” (The terms of the Bishop’s letter are set out at par 38 below.)

12                  The Tribunal said that it:

“… cannot be satisfied that the applicant has been truthful about this claim, and it cannot be satisfied that the applicant was ever approached by Moslems in Jaffna in 1997 or that these Moslems made a complaint to the authorities.  In fact, the Tribunal cannot be satisfied that the applicant has ever been of any adverse interest to the Sri Lankan authorities or to any pro-government Tamil militant group.”

13                  With respect to several letters relied on by the applicant (set out in pars 14 – 17, below), the Tribunal said:

“The letter from Mr Gnanapragasam only serves to confirm that the applicant had a business, and that he accommodated items for the LTTE – it makes no mention of any problems the applicant claims to have had with the authorities – despite being written at the time that he claims these problems were occurring.  The letter from Mr M. Louis contradicts the applicant’s claims and is dealt with above.  The Tribunal finds the other letters submitted to the Tribunal from Mr Jayakumar and Mr George to be contrived and self-serving and in light of the Tribunal’s grave credibility findings in relation to the applicant’s credibility in regard to this claim, it cannot give weight to these letters.”

14                  The letter from Mr Jeyakumar to the applicant dated 25 January 1998, reads in part (as translated (AB 308)):

“No sooner you left to Colombo, one day in the [evening] five persons came to the house and inquired about you.  I think that they have gone to your shop first and searched you there.  Because Tharmaratnam who works at Esons later told me that they have inquired about you from him also.  He said two of the persons were like Muslims who have come to your shop before and argued with you about there things.  He said that the others could be from the local Militant groups.  They have come here and searched you as your shop was closed.  I told about your departure to Colombo.  Angrily they spoke something among themselves and left.  Tharmaratnam also said that you will have problems with them.  Therefore think it over well.”

15                  The letter from Mr Gnanapragasam dated 15 March 1998, was written at the applicant’s request and addressed “To Whom it May Concern” as follows (AB 162):

“I have known Mr. Aseervsatham Joseph Mariathasan since 1953 when I was a business partner at ‘VASANS’ photographic studio in Jaffna, Sri Lanka.  He has been my customer and a business acquaintance ever since.

Mr Mariathasan established a business concern ‘DAS COMPLEX’ Multi Trade and Sales Center in June 1990.

But in 1991 I became aware of a ‘Grand Sale’ of a variety of second hand items ranging from electrical goods to textile materials being advertised and sold at give away prices under the banner of a new name ‘NAVA NEETHAM’ in the business premises of Mr Mariathasan.

Based on information available from our friends at that time and later my conversation with Mr Mariathasan, I understood that he was by force ordered to accommodate the sale of these items, confiscated from Muslim people by the Liberation Tigers of Tamil Eelam (LTTE) when they expelled the Muslims from Jaffna, while they were in authority in the Tamil area.

The facility DAS COMPLEX was functioning at 161 Main Street, Jaffna, while I was managing my ‘GNANAMS’ photographic studio and ‘HOTEL GNANAMS’ in Jaffna, Sri Lanka.”

16                  The letter from Mr George, dated 16 March 1998, states in part (AB 312):

“Further I have informed you in detail by phone about the current situation here.  Therefore do not think of coming here.  Mary and children are frightened from the time ‘those’ people came in search of you.”

17                  The letter written to the applicant by Mr Louis dated 14 (not 27) March 1998 was (as translated) as follows:

“My dear brother and sister in law

We are quite in good health and I like to know your health too.  After you left from Jaffna I have not received any information from you so far.  My daughter from Colombo informed me that you left for Australia from Singapore.  When do you intend to come to Sri Lanka.  Coming to Jaffna is not a good idea when you were in Jaffna at Dhas Complex you sold most of the goods that belonged to the LTTE.  Muslims who were living in Jaffna earlier have now come back to the town.  They made a complaint at the Jaffna Police Station saying that the articles belong to them had been stolen by the LTTE and has been sold in your shop.  As you are my related the Police made an inquiry from me about this matter.  As the Muslims who have made an entry against you and the LTTE I think it is not advisable to come back to Jaffna because of the fact that you will get into more trouble.  Please think over this matter and send me an early reply.

Thank you.

Your brother

M. Louis”

THE GROUNDS OF THE APPLICATION FOR JUDICIAL REVIEW

18                  In support of his application for judicial review, the applicant provided the following particulars:

(1)               The Tribunal rejected his claims that he was approached by Muslims in Jaffna in 1997, that the Muslims made a complaint to the authorities and that the authorities were looking for him in Jaffna and Colombo in 1998 (“the claims”).  This finding was based on the nine intermediate findings of inconsistencies and implausibilities in the applicant’s evidence and claims (as noted above).  A number of these findings contain errors (which are reviewable under ss 476(1)(a), 476(1)(e) and 476(1)(g) of the Act) as identified in counsel’s written submissions dated 11 October 2000 (see below).

(2)               The Tribunal erred in law in finding that the claims were not credible, giving rise to an error reviewable under s 476(1)(e) of the Act.

19                  In his written submissions, counsel for the applicant submitted that the relevant facts, as claimed by the applicant were as follows:

(a)                Since at least 1990 the applicant’s residential house was at No 49 Third Cross Street, Jaffna.

(b)               In or around 1990 the applicant bought land in the centre of Jaffna town at No 161 Main Street, Jaffna.  The land was close to the applicant’s residential house at No 49 Third Cross Street, Jaffna.  On the land the applicant built a building and opened a business in the building.  The business was opened in June 1990.  The applicant described the business as a multi trade and sales centre and called it “Das Complex”.  The business comprised different departments, one of which was an auction centre.

(c)                The applicant’s business operated from 3 June 1990 to 18 June 1990.  It then closed for a period of time because of fighting in Jaffna.  It then reopened and operated from late 1990 or 1991 to 1995.

(d)               In 1991 the Muslims were expelled from Jaffna by the LTTE.

(e)                A few months later two officials in the LTTE approached the applicant at his business premises and asked him to purchase items the LTTE had confiscated from the Muslims.  The applicant refused to purchase the goods.  The LTTE officials then demanded that they be allowed to use the applicant’s business premises to sell the goods themselves.  The applicant gave into this demand.  The LTTE sold the goods for two months and then stopped.

(f)                 In 1995 the Sri Lankan army captured Jaffna.  The applicant and other Tamils were forced by the LTTE to leave Jaffna.

(g)                In or around April 1996 the applicant returned to Jaffna.  His business at No 161 Main Street had been looted.  His house at No 49 Third Cross Street had been badly damaged.  For a period of time the applicant and his wife lived in the building at No 161 Main Street.  At some time before 28 December 1997 (although the exact date does not appear in any of the documents before the Tribunal) the applicant sold the business at No 161 Main Street and moved back into his house at No 49 Third Cross Street.

(h)                In the latter part of 1997 a number of the Muslims who had been expelled from Jaffna in 1991 returned.

(i)                  In November 1997 two Muslim men came to the applicant’s business premises and enquired about the sale of goods which had belonged to them.  They believed that their goods had been sold by the applicant in 1991.  The applicant stated that, although goods belonging to Muslims had been sold at his business premises, they had been sold by the LTTE and not him.

(j)                 In early December 1997 the same Muslim men returned to the applicant’s premises and demanded money from the applicant for their goods.  The applicant refused to pay them money.  The Muslim men stated that they would complain to the armed forces.

(k)               On 28 December 1997 the applicant received a telegram from his sister Queenie that another sister, Grace Mary, in Singapore had fallen ill and may not recover.  The telegram requested the applicant’s presence in Singapore.  The applicant decided to go to Singapore.

(l)                  There is independent evidence that Grace Mary was in hospital in Singapore from 13 December 1997 to 24 January 1998.

(m)              On or before 7 January 1998 the applicant obtained a permit from the Army in Jaffna to leave Jaffna for Colombo on 7 January 1998.  The permit does not indicate the date the applicant was to return to Jaffna or the purpose of his trip.  The permit states the address at which the applicant would be staying in Colombo.

(n)                On 7 January 1998 the applicant and his wife travelled from Jaffna to Colombo.  In Colombo they stayed with a friend at No 55, 33^rd Lane, Wellawatte.  On 11 January 1998, after obtaining a visa to leave Sri Lanka, the applicant and his wife travelled from Colombo to Singapore.

(o)               On 25 January 1998 Mr Jeyakumar, who was residing in the applicant’s house at No 39 Third Cross Street, Jaffna, wrote a letter to the applicant in Singapore (see above).

(p)               While in Singapore, the applicant’s daughter in Australia invited the applicant to visit her, following which the applicant made arrangements to visit.  On 5 February 1998 the applicant obtained a visa in Singapore to visit Australia.  On 21 February 1998 the applicant and his wife travelled from Singapore to Australia.

(q)               On 12 March 1998 the applicant received a telephone call from his cousin Mr Manuelpillai George in Jaffna.  Mr George stated that a few Army personnel along with some pro-government militant groups had visited Mr George’s house to find out the whereabouts of the applicant and had instructed Mr George to tell the applicant that he must appear before them in their office within a month to defend charges relating to complaints by some Muslim men.  Mr George asked the applicant to write a letter to the Jaffna Officer Commanding to explain his situation so that Mr George would not be harassed or arrested.

(r)                 It was the applicant’s case that prior to receiving this telephone call he did not have a fear of being persecuted if he returned to Sri Lanka, but that after receiving this telephone call he developed such a fear, and decided to apply for a protection visa in Australia.  Accordingly, after 12 March 1998 he undertook activities to prepare his application for a protection visa.

(s)                The applicant asked a business friend, Mr Gnanapragasam, to write a letter in support of this application.  The letter, dated 15 March 1998 is set out above.  The Tribunal appears to have accepted that this letter was genuine.

(t)                 On 16 March 1998 the applicant wrote a letter to the Army in Jaffna as requested by Mr George.  The letter was sent by registered post to Mr George’s address in Jaffna on 23 March 1998.

(u)                On 16 March 1998 the applicant received a telephone call from S Pathmanathan, the friend with whom he had stayed at No 55, 33^rd Lane, Wellawatte in Colombo for a few days on his transit to Singapore in January 1998.  The friend stated that the Army had recently been searching for the applicant at the friend’s place in Colombo.

(v)                On 16 March 1998 the applicant’s cousin Mr George wrote a letter to the applicant in Australia (see above).  The letter followed on from their telephone conversation on 12 March 1998.

(w)              On 27 March 1998 Mr M Louis, the brother of Mr George wrote a letter (see above) to the applicant in which he stated that some Moslems made a complaint to the Jaffna Police Station that goods which had belonged to them had been stolen by the LTTE and sold in the applicant’s shop and that the police made an inquiry from Mr Louis.

20                  On behalf of the applicant, it is then submitted that:

·        The Tribunal accepted the fact, as claimed by the applicant, that he had a business in Jaffna.

·        The Tribunal appears to have both accepted and rejected the fact as claimed by the applicant that in 1991 “items confiscated by Moslems when they were expelled from Jaffna were sold at his shop”.

·        The Tribunal rejected the following facts as claimed by the applicant:

(a)    that he was approached by Muslims in Jaffna in November 1997; and

(b)   that the authorities came looking for the applicant in Jaffna and Colombo in March 1998.

·        The Tribunal did not make any finding in relation to the remaining facts as claimed by the applicant.

21                  The central finding of the Tribunal was to reject the applicant’s claims that in November 1997 he was approached by Muslims in Jaffna and that in March 1998 the authorities were looking for him in Jaffna and Colombo.  The reason the Tribunal gave for rejecting these claims was because “there were a number of significant inconsistencies between the applicant’s claims and evidence in regard to this claim, as well as significant implausibilities, that give rise to a lack of satisfaction that these claims are credible”.

22                  As will be seen, the applicant’s written submissions, which counsel elaborated in oral argument, focused upon eight separate matters.  It will be convenient to state and then address each one in turn as follows.

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW

23                  (The sequence below follows that adopted by counsel for the applicant.)

1.                  No evidence ground of review – inconsistency/implausibility ground [5]

24                  The applicant contends:

·        The Tribunal found it “of significance” and “highly implausible” that “if the complaint [by the Moslems to the authorities] was made in January [1998] as claimed by the applicant, the authorities delayed two months before approaching the applicant”.

·        However, this finding is based on the existence of the fact that the applicant claimed that the Muslims complained to the authorities “in” January 1998.  The applicant did not make this claim.  Instead, he claimed that the Muslims must have approached the authorities “after” January 1998.  There is nothing implausible about this claim by the applicant.  [It will be recalled that the applicant left Sri Lanka for Singapore on 11 January 1998.]

·        Section 476(1)(g) of the Act provides as a ground of review “that there was no evidence or other material to justify the making of the decision”.  Section 476(4)(b) provides that the ground in paragraph 1(g) is not to be taken to have been made out unless “the person who made the decision based the decision on the existence of a particular fact and that fact did not exist”.  The Tribunal based its decision on the existence of a particular fact – that the applicant claimed that the Moslems complained to the authorities in January 1998 – and that fact did not exist.  Although the Tribunal based its central finding on eight other inconsistencies and implausibilities, in light of the other errors in reasoning identified in these submissions, this particular error constitutes an error under s 476(1)(g) of the Act.  Reliance is placed upon the reasoning in Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236;  Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119;  and Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023.  Particular reliance is placed upon Rajamanikkam as analogous to the circumstances of the present case.  In Rajamanikkam, Kiefel, North and Mansfield JJ noted (at par 22) the observations of Moore, Mansfield and Emmett JJ in Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 (at 34) that “the particular fact” referred to in s 476(4)(b) “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) …”.  Kiefel, North and Mansfield JJ said (at par 23):

“…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].

25                  Earlier in their reasons, their Honours had said (at par 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 ….”

26                  Their Honours went on to say (at par 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.”

27                  Kiefel, North and Mansfield JJ concluded (at par 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.”

28                  On behalf of the Minister, it is accepted that all of the applicant’s evidence was to the effect that the complaint made by the Muslims occurred after he left Jaffna, so that, consistently with the applicant’s evidence, the complaint could have been made at any time between 7 January 1998 and March of that year.  The Minister further accepts that it was the applicant’s oral evidence (as the Tribunal noted in the passage cited above) that the claim must have been made after January, although the Minister contends that why this was so was not explained in the applicant’s evidence.  In short, the Minister accepts that the Tribunal erred in its fact-finding in stating that the complaint was made in January.  But, the Minister submits, this was not an error of law, nor was it within s 476(1)(g) and (4)(b) because it was not a factual link in a chain of reasoning and there were many parallel findings.  In any event, the Minister argues, at worst, the position is unclear – there may, or may not, have been two months’ delay on the part of the authorities.

29                  In my opinion, the argument for the applicant should be accepted.  That is to say, in my view, the Tribunal’s decision was based, in part, upon the fact that the complaint was made in January 1998.  In the language of the authorities, this finding now accepted to be in error, was “critical” to the making of the decision.  That was amongst the critical considerations indicated by first, the structure of the reasons where nine aspects are selected as “significant”, and secondly, the description of this particular matter (par (5)) as especially warranting the characterisation of “of significance” (see Re Refugee Review Tribunal;  Ex parte Aala [2000] HCA 57 per Gleeson CJ at par 4).

30                  For this reason alone, I would set the decision aside, and remit the matter.  However, since the case was fully argued, I will proceed to consider the other grounds of the application.

2.         No evidence ground of review – inconsistency/implausibility ground [(6]

31                  The applicant contends:

·        The Tribunal stated that “the applicant claimed in his written submissions to the Tribunal that the authorities were pursuing him to Colombo”.  The Tribunal went on to conclude that this claim by the applicant gave rise to an “inconsistency” which presumably damaged his credibility and suggested that his claims were untrue.

·        However, contrary to the Tribunal’s reasons, the applicant did not claim in his written submissions that the authorities were pursing him to Colombo.  In his written submissions to the Tribunal the applicant stated (AB 287):

“In my statement attached to my protection visa application, I have expressed my fear of being arrested because I got information that the Sri Lankan security personnel had been trailing behind me up to Colombo … (Refer to paragraph 2c and 2e of my statement attached to protection visa application).  (Emphasis added by counsel)

·        Paragraph 2c of the applicant’s statement attached to his protection visa application states (AB 3.6):

“On 16 March 1998 I received another telephone call from my friend in Colombo with whom I stayed during my transit to Singapore.  He informed me that Army have gone in search of me at his place in Colombo …”  (Emphasis added by counsel)

·        Accordingly, the applicant did not claim that in January 1998 the authorities were pursuing him to Colombo.  Instead he claimed that in March 1998 he received a telephone call from the friend with whom he had stayed in Colombo in January 1998 who stated that in March 1998 the Army had looked for the applicant at the friend’s place.

·        Again the Tribunal has based its decision on the existence of a particular fact – that the applicant claimed in his written submissions that the authorities were pursuing him to Colombo – and that fact did not exist.  Again, in light of the other errors in reasoning identified in these submissions, this particular error constitutes an error under s 476(1)(g) of the Act.

32                  I cannot accept the argument.  As was submitted for the Minister, the Tribunal clearly interpreted the words “trailed behind” in their ordinary, literal sense.  In any event, this is not a fact which is in dispute.  If there is room for argument, it concerns the proper interpretation of language used by the applicant himself.  Even if that language has ambiguities, the Tribunal’s interpretation was, at least, open.  In my opinion, s 476(1)(g) has no application here.

3.         Failure to make finding on material question of fact – inconsistency/implausibility ground [4]

33                  The applicant contends:

·        The applicant obtained permission to depart Jaffna in January 1998.  The permit which the applicant obtained from the Army contains information that the applicant was going to Colombo, but does not otherwise indicate when the applicant was to return to Jaffna or the purpose of the applicant’s journey.  The Tribunal found it “implausible” that the Army would look for the applicant in Jaffna in March 1998 given that he had obtained permission from the Army to depart Jaffna in January 1998.  However, a question of fact which the Tribunal has failed to consider is whether the Army in Jaffna had a system whereby it knew when departees returned to Jaffna.  If it did not have such a system, it is not implausible that the Army first searched for the applicant in Jaffna.  In fact, it is common sense that the Army would first search for the applicant in Jaffna.

·        The Tribunal has failed to make a finding on a question of fact.  The question is whether the question of fact is “material” as that term is used in s 430(1)(c) of the Act.  In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 four judges of the Full Court of the Federal Court stated (at pars 48, 54 and 55):

“The generally accepted view in this Court has been that the RRT is under a duty to make, and set out, findings on all matters of fact that are objectively material to the decision it is required to make.  It must make findings on questions of fact that are central to the case raised by the material and evidence before it.  In this respect, s 430 sets a standard of decision-making the RRT is required to observe.

 …

‘…[W]hether 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. 

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.”

·                    In this case, if the only basis for the Tribunal’s central finding was that it was implausible that the Army would look for the applicant in Jaffna in March 1998, the question whether the Army in Jaffna had a system whereby it knew when departees returned to Jaffna would be material.  Alternatively, if each of the other eight inconsistencies and implausibilities identified by the Tribunal is rationally reasoned, this question of fact would not be material.  In the present case, in light of the other errors in reasoning by the Tribunal identified in these submissions, the question of fact is “material”, giving rise to a reviewable error under s 430(1) and 476(1)(a) of the Act.

34                  I cannot accept the argument.  I agree with the Minister’s submission that the Tribunal is not obliged to consider all possible explanations for any asserted facts, ignoring an unsatisfactory explanation suggested by the applicant.  Moreover, there was no question of material or relevant fact on which a finding was not made.

4.                  Failure to make finding on material question of fact – inconsistency/implausibility ground [7]

35                  The applicant contends:

·        On 27 March 1998 Mr Louis wrote that Muslim men had made a complaint to the Jaffna Police Station and police had made enquiries from him.  This contrasts with the claims of:

(1)   Mr George that on or before 12 March 1998 Army personnel came to his house in Jaffna looking for the applicant; and

(2)   Mr Pathmanarathan that on or before 16 March 1998 Army personnel came to his house in Colombo looking for the applicant.

·        The Tribunal states that the letter from Mr Louis gives rise to a “significant inconsistency” which “gravely undermines” the applicant’s credibility.  However, a question of fact which the Tribunal has failed to consider is whether the Muslims in Jaffna complained to both the Army and the police.  In light of:

(1)               the fact that the explanation which the Tribunal failed to consider is plausible and not inconsistent with the remainder of the evidence;

(2)               the fact that there is a two week gap between the claims of Mr George and Mr Pathmanarathan (12 and 16 March 1998) that Army personnel were looking for the applicant and the date of Mr Louis’ letter (27 March 1998), giving rise to the possibility that the Army was conducting inquiries in one period and the police in another;

(3)               the fact that the independent country information which was before the Tribunal indicates that both the police and the Army may investigate matters involving the LTTE and that the police and the Army may be involved in activities together;

(4)               the fact that the Muslims’ complaint, involving the LTTE and a civil action for compensation, is the type of matter which could be reported to either or both of the police and the Army;

(5)               the Tribunal’s observation that this is a “significant inconsistency” which “gravely undermines” the applicant’s claim; and

(6)               the other errors in reasoning by the Tribunal;

this question of fact is “material” as that term is used in s 430(1)(c), giving rise to a further reviewable error under s 476(1)(a) of the Act.

36                  I cannot accept the argument.  I agree with the argument of the Minister that, given that the applicant did offer explanations for the inconsistencies in his evidence, he cannot now say that the Tribunal should have searched for other explanations.

5.                  Failure to make finding on material question of fact – inconsistency/implausibility ground [9]

37                  The applicant contends:

·        If the Bishop of Jaffna was a person who might have had independent knowledge of the “problems the applicant claimed to have undergone [ie being sought after by the Moslems and the Army] in relation to being a suspected member of the LTTE”, the Tribunal would be entitled to conclude that the Bishop’s failure to mention these problems in his letter damages the applicant’s credibility in relation to the claims.  However, it is unlikely that the Bishop of Jaffna would have had independent knowledge of these problems.

·        In considering the relevance of the letter from the Bishop of Jaffna, the Tribunal has failed to make a finding on the question of fact whether the Bishop of Jaffna was a person who was likely to have had independent knowledge of the applicant’s problems.  In light of:

(1)               the manner in which the Tribunal has sought to use the Bishop’s letter; and

(2)               the other errors in reasoning by the Tribunal identified in these submissions,

this is a material question of fact, giving rise to a reviewable error under s 430(1)(c) and 476(1)(a) of the Act.

38                  The Bishop’s letter, dated 30 June 1999, addressed to “To Whom It May Concern” was as follows:

“[The applicants] are both well known to me.  They are members of the Parish of Our Lady of Refuge, Jaffna.

Mr & Mrs Mariathasan are honest, hard-working and upright people.  They have actively participated in the religious, Social and Cultural life of their Parish.  They bear good characters and are dependable.  They were among the badly affected people during military operations during which they lost their business and their house and all over 2 Millions worth of equipments.

They are both advanced in years and deprived of all income.  Their four children are abroad in Australia, U.K., and Canada.  They have no one to care for them in Sri Lanka and they are not in good health.  Therefore, they wish to join any of their children to spend the remaining years of their lives with them.  I wish to strongly recommend their case for kind and sympathetic consideration for immigration on humanitarian grounds as they deserve to be so treated.

39                  I have difficulty accepting the applicant’s contention.  As counsel for the Minister pointed out, the Tribunal accepted that the applicant’s premises had been shelled.  But it was open to the Tribunal to refer to the letter as throwing light on the question whether the applicant’s departure from Sri Lanka was for a Convention reason.

6.                  Irrational reasoning – inconsistency/implausibility ground [1]

40                  The applicant contends:

·        If there was evidence before the Tribunal that other proprietors had been approached by the Moslems, this would have supported or corroborated the applicant’s claims.  However, the absence of corroborating evidence does not make the claims “implausible”.  The Tribunal has reasoned that because the applicant was unable to produce evidence that other outlets had been approached by the Muslims, his claim that he was approached was implausible.  In light of –

(1)               the time which has passed since 1991;

(2)               the fact that the applicant has prepared his claim in Australia and not Jaffna; and

(3)               the general difficulty faced by any applicant in producing the evidence demanded by the Tribunal,

the Tribunal’s reasoning is irrational.  Irrationality is not a ground for review under s 476(1) of the Act.  However, irrationality in relation to this matter makes the errors identified in pars 8 to 12 above more “material” (Singh at pars 54 and 55), or “critical” (Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212at 220), or of “causal” significance (Indatissa at par 48).

41                  I reject the contention as a “back-door” attempt to raise a claim of Wednesbury unreasonableness – a topic expressly withdrawn from this Court’s jurisdiction.

7.                  Irrational reasoning – inconsistency/implausibility ground [8]

42                  The applicant contends:

·        The Tribunal noted first, that the applicant had claimed that he was reluctant to assist the LTTE in 1991 in selling goods taken by the LTTE from the Muslims who had been forced out of Jaffna; and, secondly, that the applicant claimed to be a supporter of the LTTE in other ways.  The Tribunal concluded that the applicant’s claims were “contradictory”.  Presumably, this “contradiction” in the applicant’s claims damaged his credibility.

·        In relation to the applicant’s reluctance to assist the LTTE in 1991 to sell goods taken by the LTTE from the Muslims, the applicant sets out reasons for his reluctance in his statement to the Department dated 3 April 1998.  First, for financial reasons the applicant did not want to purchase the goods.  Also, for financial reasons, the applicant did not want the LTTE using his premises to sell the goods, depriving him of the opportunity to use the premises.  Secondly, even though the applicant did not set this out as a reason, it is entirely plausible that the applicant was reluctant to be involved in the illegal and immoral act of selling stolen goods.

·        In relation to the applicant’s claim to be a supporter of the LTTE in other ways:

(1)               In his application form for a protection visa the applicant stated that from 1992 to 1994 he “prepared large canvas artworks for the LTTE Martyrs Day Celebrations”;

(2)               In his accompanying statement he also stated that he “was an admirer and supporter of [the LTTE’s] political stand like the majority of Tamils”.

(3)               In his written submissions to the Tribunal lodged in April 2000, he stated that he had fully explained his involvement with the LTTE in his application for a protection visa and referred to the passage quoted above from his application form for a protection visa.

(4)               In evidence before the Tribunal the applicant stated that the LTTE had come to his workshop frequently, that he had framed pictures for them for Heroes Day and that he had been public about his support for the LTTE.

·        Contrary to the Tribunal’s reasons for decision, there is no evidence to support its opinion that the applicant’s claims are “contradictory”.  While the absence of evidence to support an opinion of a decision-maker does not give rise to a reviewable error under s 476(1)(g) of the Act (see Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236), the absence of such evidence suggests that the decision-maker’s reasoning is irrational.  Irrationality is not a ground for review under s 476(1) of the Act.  However, irrationality in relation to this matter makes these errors more “material”, or “critical” or of “causal” significance in the above sense.

43                  I cannot accept the argument.  As counsel for the Minister submitted, at various points, the applicant had asserted that he was forced to sell the Moslem goods in his store; yet in his written submissions to the Tribunal, he listed a number of services he performed for the LTTE, including “permitting the LTTE to use my business establishment to sell the goods that were confiscated by the LTTE from the Moslem community in Jaffna”.  But in any event, here also the applicant’s argument is an implausible attempt to invoke the Wednesbury doctrine in this Court and thus an attempt to do indirectly what cannot be done directly.

8.         Error of law – credibility finding

44                  The applicant contends:

·        In Careem v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 343 the Full Court of the Federal Court accepted the statement of Merkel J in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 that:

“The approach of the RRT to the credibility issues was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility.  In these circumstances I do not accept the contentions of the applicants that the RRT erred in law in relation to these findings or that these findings were open to challenge on any other reviewable ground.”

·        See also Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 where the Full Court, after approving the same statement by Merkel J in Emiantor, characterised an error in the Tribunal’s approach to the assessment of credibility as an error of law under s 476(1)(c) of the Act.

See also Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 at 383.

·        In the present case the Tribunal made a credibility finding against the applicant.  However, the Tribunal’s approach to the credibility finding was not “based on rational grounds” or arrived at after consideration of matters that were “logically probative of the issue of credibility”.  Instead, the Tribunal’s approach to the credibility finding was based on irrational and illogical reasoning.  The particular errors of the Tribunal which justify this criticism are set out above.  On this basis, the Tribunal erred in law in relation to its credibility finding.

45                  I cannot accept the argument, which is in substance if not also in form, no more than a restatement of the earlier grounds which I have specifically rejected in all but one instance.  As Merkel J observed in Mashayekhi, above (at 383 – 384):

“Credibility

In Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 a Full Court considered the difficulties confronting a refugee claimant wishing to challenge adverse findings on credibility issues.  The Court observed:

·        there can be no error of law where a tribunal makes findings on credibility issues that were open on the material before it after consideration of matters that were logically probative of the issue of credibility (at 552 and 559);

·        the Tribunal can be expected to be sensitive to the special considerations that arise in relation to assessing credibility of refugee claimants (at 557-559);

·        ultimately, the Tribunal’s role is to determine whether, on the totality of the material available to it, it was satisfied that the applicant is a person to whom Australia has protection obligations under the Convention (at 556).

The applicant has not demonstrated that the adverse credibility findings of the RRT were not open on the material before it.  Once it is accepted that, in its reasons for decision, the RRT approached the credibility issues on the basis of a claim by the applicant of his conversion to Christianity, rather than Roman Catholicism, the challenge to the credibility findings made by the applicant on that ground amounts to an impermissible endeavour to reargue the matter on the merits.”

46                  I respectfully agree.  For the particular reasons previously given, the credibility findings made by the Tribunal were open, with the one exception, where I have found (see pars 29 – 30, above) that the Tribunal erred.

COSTS

47                  Although the applicant has succeeded on one of his grounds for review, he has failed on the others.  In these circumstances, he should receive one-half of his costs.

ORDERS

48                  I make the following orders:

1.         That the decision of the Refugee Review Tribunal dated 6 July 2000 be set aside.

2.         That the matter be remitted to the Tribunal for reconsideration according to law.

3.         That the respondent pay one-half of the applicant’s costs of the proceedings.

Associate:

Dated:              22 November 2000