FEDERAL COURT OF AUSTRALIA

Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910

MIGRATION – appeal – application for a protection visa – whether steps in the reasoning in respect of a material question of fact can constitute a finding on a material question of fact – consideration of the circumstances in which adverse credibility findings are reviewable

Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 s 1A(2)

Migration Act 1958 (Cth) s 430(1)(d)

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

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 – referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 – referred to

R v Higher Education Funding Council; ex parte Institute of Dental Surgery [1994] 1 All ER 651 – referred to

Canada (Director of Investigation and Research) v Southam Incorporated [1997] 1 SCR 748 – referred to

Baker v Canada (Minister of Citizenship and Immigration) (1999) 174 DLR (4^th) 193 – referred to

R v Connell; Ex parte The Hetton Bellbird Collieries Limited (No 2) (1944) 69 CLR 407 – referred to

Buck v Bavone (1976) 135 CLR 110 – referred to

Singh v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 503 – referred to

Puhlhofer v Hillingdon London Borough Council [1986] AC 484 – referred to

Waterford v The Commonwealth of Australia (1987) 163 CLR 54 – referred to

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 – referred to

Dornan v Riordan (1990) 24 FCR 564 – referred to

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 – referred to

Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 – referred to

Rasaiah v Minister for Immigration and Multicultural Affairs [2000] FCA 1371 – referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 – referred to

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 – referred to

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 - applied

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 –applied

APPUCUTTY THEVENDRAM v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 481 of 2000

JUDGES:       LEE, CARR AND MERKEL JJ

PLACE:          MELBOURNE

DATE:            21 DECEMBER 2000

THE COURT ORDERS THAT the appeal be dismissed with costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

LEE J:

1                     This is an appeal from a decision of a judge of this Court (Heerey J) which dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 September 1999. The Tribunal was not satisfied that the appellant was “a refugee” and affirmed a decision of a delegate of the respondent (“the Minister”) not to grant a “protection visa” to the appellant. Under s 36(2) of the Migration Act 1958 (Cth) (“the Act”) and reg 866.221 of the Migration Regulations 1994 (Cth), a criterion for the grant of a protection visa is that the Minister be satisfied that the applicant is a person to whom Australia has protection obligations under the “Refugees Convention” as amended by the “Refugees Protocol”, referred to collectively hereafter as “the Convention”. Section 5(1) of the Act defines the “Refugees Convention” as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the “Refugees Protocol” as the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

2                     The appellant is a citizen of Sri Lanka. He arrived in Australia on 7 September 1996 to attend a Lawasia Labour Law Conference held at Darwin. He had been granted a “temporary business entry visa” for that purpose. He applied for a protection visa on 23 September 1996.

3                     The Tribunal did not formally record the fact that it is accepted that the appellant is of Tamil ethnicity. He is aged 49 and is a legal practitioner admitted to practise by the Supreme Court of Sri Lanka in 1980.

4                     After admission the appellant returned to his home city of Jaffna to carry on his profession. The Tribunal accepted that in 1983 and 1984 the appellant experienced a “harrowing time” at the hands of Sri Lankan security forces carrying out military operations in Jaffna against the Liberation Tigers of Tamil Eelam (LTTE) which had taken up arms in the cause of Tamil self-government in the north-east area of Sri Lanka.

5                     After government forces withdrew in late 1985, the LTTE took control of the Jaffna peninsula and established a form of administration. The Tribunal accepted that between 1986 and 1987 the appellant, at the request of the LTTE, served as the head of a “Rural Court” established by the LTTE in the Jaffna district and was involved in “inaugurating” that system.

6                     In late 1987 an Indian Peacekeeping Force (IPKF) took up duties in the Jaffna district pursuant to an Indo-Sri Lankan accord which sought to end the warfare taking place in the north of Sri Lanka.

7                     The Tribunal appeared to accept that hostilities that broke out between the IPKF and LTTE caused the appellant and his family to abandon their home in Jaffna for three months in late 1987 and that shortly after returning to his residence early in 1988 the appellant was detained for several days by IPKF personnel and interrogated. He was released after the exercise of influence by prominent citizens. The appellant said that his interrogators claimed he was a legal consultant for the LTTE movement, a claim he denied. The Tribunal formed the view that if the appellant was detained, interrogated and released as claimed, he must have satisfied authorities that he was not a serious threat to security.

8                     The appellant claimed that in January 1989 the militant group Eelam People’s Revolutionary Liberation Front (EPRLF), opposed to the LTTE, assassinated a member of the Rural Court of which he was head. The Tribunal appeared to accept that “the death of a former colleague of the Rural Court” occurred as claimed by the appellant.

9                     The appellant said he fled Jaffna on that day and after some months made his way to Colombo where his wife and family joined him in November 1989. The Tribunal appeared to accept that the appellant left Jaffna in January 1989 and that his family joined him in Colombo in November 1989. The appellant claimed that after he left Jaffna, the EPRLF threatened his wife and children with death if he did not return. The Tribunal dealt with that claim as follows:

“In his statement of 23 September 1996 the applicant said that members of the EPRLF threatened his wife and children with death the day after he fled upon learning of the death of a former colleague from the Rural Court. At the hearing before this Tribunal he said that the threat to his family occurred a month after he fled. … The Tribunal finds it inconceivable that the applicant would abandon his family to their fate when there was a perceived risk of death to him and, therefore, to them as immediate family members of someone regarded as a strong supporter of the LTTE by reason, at least, of his former public role. Considering that improbability and the discrepancy in the applicant’s evidence as to when his family was threatened, the Tribunal finds that the story of threats to the applicant and his family from the EPRLF is a concoction designed to embellish a claim to refugee status.

In reaching that finding the Tribunal also gives weight to the fact that the applicant made no arrangements for his family to leave the Jaffna area until some 10 months after he was ensconced in Colombo, notwithstanding his claim that his family moved away from the family home and his assertion in the aforementioned statement that the entire family was threatened with death if he did not return from Colombo when it was somehow discovered he had relocated there. The Tribunal also notes that no harm ever befell the applicant’s wife or children.”

10                  Although the material relied upon by the Tribunal for the observation that the appellant provided inconsistent accounts as to when his family had been threatened was at its highest equivocal, it was open to the Tribunal to find that the appellant had not left Jaffna in fear for his safety. Another mind may not have considered that the material in its entirety was capable of supporting the conclusion that the appellant’s account was a “concoction”, but that circumstance has no bearing on whether there is ground for judicial review of the Tribunal’s decision.

11                  In January 1990 the IPKF withdrew from Jaffna and the LTTE resumed control of north-east Sri Lanka and re-established its own form of civil administration in the area. The Tribunal accepted that the appellant and his family returned to Jaffna in February 1990 and it appeared to accept that the appellant was appointed by the LTTE as a member of the board of governors of the “North-East District Rehabilitation Organisation”. By December 1990 hostilities between Sri Lankan forces and the LTTE had re-commenced. The Tribunal accepted that the applicant and his family moved to Colombo in February 1991 because of the effect of the warfare on their life in Jaffna. The Tribunal accepted that the appellant commenced a legal practice and real estate business in Colombo.

12                  The appellant asserted, and the Tribunal accepted, that thereafter the appellant was happy to make Colombo his home where he and his family led a normal life.

13                  The appellant made a number of trips abroad between 1994 and 1996, travelling to India on several occasions and Singapore, Hong Kong, Thailand and Japan. In May 1996 the appellant spent a week in India, and the month of July 1996 was spent in, principally, the United Kingdom and Canada. He returned to Sri Lanka on 28 July 1996.

14                  The appellant claimed that on 2 August 1996 he was taken from his home by para-military police and security forces to the local police station where he was interrogated about his previous involvement with the LTTE. He said he was badly treated and tortured in the course of the interrogation. He was released on 13 August 1996 after he had arranged for a sum of Rs100,000 to be paid and undertaken to report to the police station each month. He said that after release he learnt that in the week before his return from Canada a person who came from the same part of the city of Jaffna as he had been arrested by security forces in Colombo and killed. He considered that his own life was at risk and that he had to leave Sri Lanka. Applications for visas made to the Canadian and United States embassies were not successful. He was informed of the Lawasia conference in Australia and through the Bar Association of Sri Lanka made application to the Australian High Commission for the grant of a visa. The application was dated 22 August 1996 and the visa was granted on 2 September 1996. The appellant left Sri Lanka on 6 September 1996. The chronology of events appears to support a conclusion that the appellant’s decision to attend the conference was made suddenly. As noted above, the Tribunal had accepted that until this point the appellant had been content with his life in Colombo.

15                  The appellant explained why he thought it was that he had been detained by security forces in August 1996. He said that a major military operation against the LTTE was commenced by government forces in July 1995, leading to the recapture of the Jaffna peninsula in February 1996. The appellant stated that “his area”, the north-west part of the city of Jaffna, was re-taken in December 1995. He said that because of the warfare the civilian population had been displaced and information-gathering activities by the security forces in the recaptured area might have taken some time. He surmised that it was as a result of information obtained in Jaffna at that time about his activities that led to suspicion by security forces that he had been a collaborator with the LTTE and a person to be interrogated.

16                  The Tribunal dealt with that aspect of the appellant’s claims as follows:

“In relation to the applicant’s claim that he was detained in August 1996 due to suspicion of involvement with the LTTE, the Tribunal makes the following observations. The applicant had resided in Colombo for five and a half years. He functioned there openly and had no problems with the authorities during the intervening period. He did not have any connection with the LTTE after 1987, and even before then his connection was indirect. He was not apprehended by the authorities while in the north due to any perceived connection with the LTTE.

He claims that he came to the attention of the authorities after the security forces swept through his area. During the course of his application for a protection visa he has provided discrepant evidence as to when that sweep occurred, alternatively claiming that it occurred in December 1995 and in mid-1996. In fact a sweep by the army on the Jaffna Peninsula took place in mid-1995 (see, for example, Inform, July 1995). No action was taken against the applicant after the initial sweep. Indeed, he was able to travel on his own passport to India in May 1996 and to Canada in June 1996. Even on his return from overseas in August 1996 he was not arrested despite his claim that the authorities, at least by then, had information linking him to the LTTE.

The applicant has given evidence that he destroyed all documentation in relation to his civil employment in a former administration under the auspices of the LTTE. Any such involvement would have given the applicant some kind of public profile that some of his evidence indicates was known to the IPKF and the EPRLF. It was at least open to those organizations to learn of the applicant’s role if it was of any interest. The authorities were not reliant on information provided as late as April 1996 following a sweep of the applicant’s former location in the north of Sri Lanka as to his participation in public affairs in that area. It is apparent that a public role the applicant undertook with the Rural Court or in other public affairs would have been widely known well before any sweep of his area, yet no action had been taken against him.

The applicant was never charged with any offence. When interviewed by a Departmental officer the applicant, a lawyer, was unable to name the Act according to which he was arrested. The Tribunal does not accept that the applicant omitted in the initial stages of his application a claim that he was released on reporting conditions because it would have made his statement overly long. He is [sic] a lawyer would have well understood the nature of his application and the importance of making all relevant claims in a timely way. The Tribunal rejects his claim that he signed a document in Sinhala that he thinks refers to reporting conditions. In view of the seriousness of any charges under the Prevention of Terrorism Act the Tribunal does not find it credible that the applicant would have been released from custody by the payment of a bribe if he had been of any interest to the authorities.

In this case the applicant was also able to depart Sri Lanka legally the month after his alleged arrest. He left on his own passport with a visa granted on the basis that he was attending a legal conference as a delegate. He passed through all security checks at the airport and attended the conference as planned for three days. Although the applicant might have left Sri Lanka in the company of high profile lawyers the Tribunal does not find it credible that their presence would have enabled his exit if he had been suspected of complicity with terrorism such that he would have been of official interest under the Prevention of Terrorism Act.”

17                  The material to which the Tribunal refers as the source of the information that the Army conducted a “sweep” of Jaffna peninsula in “mid-1995” is not in the documents before the Court. The statement appears to be contradicted by the “Sri Lanka Country Report on Human Rights Practices for 1996”, issued in January 1997 by the United States Department of State (“US State Report”). The US State Report recorded the following:

“A 6-month government military offensive captured the LTTE heartland of the Jaffna Peninsula in April, adding tens of thousands to the ranks of displaced persons.”

…

From October 1995 through April 1996, the Government conducted coordinated military attacks on LTTE-held territory in the Jaffna Peninsula resulting in the capture of Jaffna City in December 1995 and the remainder of the peninsula by April. Government forces also captured the town of Kilinochchi in September. Altogether, the fierce fighting in the north resulted in many casualties on both sides and upwards of 480,000 displaced persons.

…

Prior to the government military offensive on the Jaffna Peninsula in 1995 and 1996, an estimated 600,000 citizens have been displaced by the insurgency. Most live in camps financed by the Government and non governmental organizations.”

18                  Furthermore, the US State Report provided other information that, on its face, was relevant to the appellant’s claims. It reported that in July 1996 the following events occurred:

“The LTTE inflicted a major military defeat on government forces at Mullaitivu  army base in the north, killing upwards of 1,500 troops.

…

Seventy commuters in Colombo died in a train bombing...

…

In the same month, an attempted assassination attempt against the Minister of Housing by a suicide bomber in Jaffna left 25 dead, including an army brigadier.

            …

Security forces continued to conduct mass arrests of young Tamils, both male and female, especially following the LTTE assassination attempt in Jaffna against the Minister of Housing, and the LTTE attack on Mullaitivu in July. Major sweeps and arrests occurred in Colombo, the east, and increasingly, on the Jaffna Peninsula. Although exact numbers of arrests were impossible to determine, they clearly numbered in the thousands. Upwards of 1,000 Tamils at a time were picked up during police actions. Most were released after identity checks lasting several hours to several days. The Government justified the arrests on security grounds, but many Tamils claimed that the arrests were a form of harassment. In addition, those arrested, most of whom were innocent of any wrongdoing, were detained in prisons together with hardened criminals.”

19                  With regard to the risks facing persons detained by security forces, the US State Report stated:

“At least 300 individuals are believed to have disappeared from security force custody on the Jaffna Peninsula, while 50 more disappeared elsewhere on the island. Torture remained a serious problem, and prison conditions remained poor. There were [sic] an increase in detentions and short-term mass arrests, often accompanied by failure to comply with some of the protective provisions of the Emergency Regulations [ER].

…

In July the charred body of a Tamil textile merchant who had been detained under the ER was found at Giribawa in North-Central Province.

…

In April the ER, which had previously been in force only in areas of the north and east directly affected by the insurgency and in Colombo, was reimposed nationwide. There was no evidence that the Government was using them, as in previous years, to conceal extrajudicial killings or disappearances. However, crucial safeguards built into the ER were being routinely ignored by the security forces – especially those provisions requiring receipts to be issued for arrests and ordering the security forces to notify the Human Rights Task Force (HRTF) of any arrest within 24 hours. The HRTF is a quasi-independent government body established by an ER to register detainees held under the ER and the Prevention of Terrorism Act (PTA), and monitor their welfare. Although security force personnel can be fined or jailed for failure to comply with the ER, none was known to have been punished during the year.

…

Disappearance at the hands of the security forces increased alarmingly, especially in the east and north, though some occurred in Colombo. Most of these were associated with the arrest of suspected LTTE insurgents. In excess of 300 individuals are believed to have disappeared on the Jaffna Peninsula in the second half of the year, and more than 50 elsewhere in the country throughout the year. As with extrajudicial killings, the exact number was impossible to ascertain due to censorship of news about security force operations, and lack of access to the north and east.

There were 34 confirmed cases of disappearance in 1995, and 10 cases in 1994, the lowest number on record in at least a decade. Those who disappeared in 1996 and in previous years are presumed dead. The disappearances involved persons last known to be in police or army custody.

…

Members of the security forces continued to torture and mistreat detainees and other prisoners, both male and female, particularly during interrogation. … Most torture victims were Tamils suspected of being LTTE insurgents or collaborators.

…

Detention of Tamils continued to increase as a result of the continuing hostilities with the LTTE. At year’s end the Government held as many as 1,500 detainees under the ER, up from 380 at the end of 1994 and 940 at the end of 1995. Many of these detainees were arrested during operations against the LTTE. Between June and September, 460 suspected members of the LTTE were detained on the Jaffna Peninsula. The Government continued to detain up to 300 individuals under the PTA, which permits detention without charge for up to 18 months. A hunger strike in June by Tamils detained without charge under the PTA highlighted the fact that some had been so incarcerated for up to 4 years.”

20                  The material in the US State Report indicates that the reasons offered by the appellant in September 1996 for his fear of persecution by reason of his race or imputed political opinion were not implausible.

21                  That material suggested that the LTTE atrocities, which occurred in July 1996 whilst the appellant was abroad, may have caused the security forces to place greater emphasis on exposing covert supporters of the LTTE. Information that was obtained by the security forces after recovery of controlof the Jaffna peninsula between December 1995 and April 1996 may have been given closer scrutiny by intelligence personnel after the major military defeat inflicted by the LTTE at Mullaitivu in July 1996 and the acts of terrorism carried out by the LTTE in the same month. Perhaps intelligence officers suspected that there was a link between the appellant’s trips abroad and the LTTE cause. Whether that happened is unknown but the appellant’s account and his speculation as to the cause of his claimed detention, were not “implausible”, in the sense of inherently unlikely.

22                  The Tribunal reasoned that the appellant would have been arrested at the airport upon his return on 28 July 1996 if he had become a person of interest to security forces and that because that arrest did not occur the appellant’s claim that he was taken into custody on 2 August 1996 must have been a fabrication. Unless appropriate findings of fact were able to be made about the method of operation of the security forces, that conclusion lacked a logical foundation. No such findings of fact could be made. As discussed later, however, the ultimate decision of the Tribunal did not turn on this reasoning.

23                  The essence of the appellant’s case was that he was a Tamil likely to come under the notice of authorities by reason of his status as a professional person and because his professional skills had been used to serve the objects of the LTTE. In the eyes of the security forces he could have been perceived as an LTTE collaborator. The fact that some years had passed since he had served as head of a Rural Court may not have deflected a counter-insurgency officer seeking to identify persons who were connected with, or displayed sympathy for, the cause of the LTTE, being persons to be observed or interrogated. The appellant’s case was that his fear of persecution remained well-founded notwithstanding that an assessment of his activities, formed rationally by persons operating pursuant to the rule of law, may have presented him with no risk of harm. What the appellant feared was the risk that he could suffer persecution at the hands of persons authorised to act on suspicion and not constrained by law. There was material to show that such a risk existed when the appellant’s claim for a protection visa was considered.

24                  The fact that the appellant had not been charged with an offence under the Prevention of Terrorism Act, or had not been prevented from departing Sri Lanka on 6 September 1996, were matters to be taken into account in determining whether there was a risk that the appellant may suffer persecution, but they were not events in themselves which disposed of that question. The appellant’s case was that he had become a person of interest to security forces and was now at risk of harm if officers decided to take matters into their own hands, relying upon the cover of anti-terrorism laws to act to excess and with impunity.

25                  The Tribunal seems to have misunderstood this aspect of the appellant’s claim. The Tribunal did not consider whether the process of “sweeps” or detention by security forces could occur without adherence to formalities of law. As noted above, there was ample material to suggest that it could. The statement by the Tribunal that the appellant’s account lacked credibility because “he was unable to name the Act according to which he was arrested” does not confront the appellant’s claim. The appellant claimed to be at risk because elements in the security forces were able to act without legal restraint and without relying upon statutory authority for their conduct. The Tribunal’s reasoning that “in view of the seriousness of any charges under the Prevention of Terrorism Act the Tribunal does not find it credible that the appellant would have been released from custody by the payment of a bribe if he had been of any interest to the authorities” seems to be at a tangent to the appellant’s claims. If a person, detained and interrogated in the cause of counter-terrorism is released without being charged with an offence, it does not follow that the interest of the authorities in that person ceased with the release from custody. In effect, the appellant claimed that although it was uncertain how the security forces may manifest their interest in him in future, there was sufficient cause for him to fear that he may suffer substantial harm at their hands. The question the Tribunal had to address was whether a fear so based was a well-founded fear. If the ultimate determination of the Tribunal had turned on a bare statement that it was not “credible” that the appellant would have been released as claimed if he had been “of any interest” to authorities, a question may have arisen as to whether the Tribunal had carried out the review required of it by the Act. (See:  Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 per Gleeson CJ at [4].) As discussed later in these reasons, the Tribunal relied upon other material to make its determination.

26                  If a Tribunal finds that an event or circumstance did not occur as represented in oral or documentary material before the Tribunal, and finds further that the falsity of the representation was known to the applicant at the time the applicant sought to rely upon it, such findings of fact may lead the Tribunal to determine that it is not satisfied that the applicant has a well-founded fear of persecution. But if the Tribunal does no more than assert that some part of an applicant’s account of past events is “not credible”, or is “implausible”, and relies upon that assertion not to make findings of fact on material issues in the applicant’s case, the decision-making process engaged in by the Tribunal may require analysis. (See:  Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 per Kiefel, North and Mansfield JJ at [21]-[23].) If general statements to the effect that claims of an applicant are “not credible”, or are “implausible”, are regarded as “credibility” findings not dependent on findings of fact, and that any decision based thereon is beyond the scope of judicial review, there is a real risk that reasons for decision will be constructed accordingly. In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, Gleeson CJ, Gummow, Kirby and Hayne JJ (at [42]) drew attention to the harm that may be occasioned to administrative decision-making if judicial review of a decision-maker’s determination of jurisdictional facts were constrained:

“An undesirable consequence of the Chevron [Chevron USA Inc v Natural Resources Defense Council, Inc 467 US 837 (1984)] doctrine may be its encouragement to decision-makers to adopt one of several competing reasonable interpretations of the statute in question, so as to fit the facts to the desired result.  In a situation such as the present, the undesirable consequence would be that the decision-maker might be tempted to mould the facts and to express findings about them so as to establish jurisdiction and thus to insulate that finding of jurisdiction from judicial examination.”

27                  If there is material before the Tribunal that shows that the occurrence or existence of an event or circumstance relied upon by an applicant is “plausible”, and the event or circumstance is material to the issue whether the applicant has a well-founded fear of persecution, then unless the Tribunal determines that the event or circumstance did not occur or exist, it could not purport to find that because the applicant relied on that circumstance or event the applicant was not “credible”, nor that by reason of that finding the Tribunal could not be satisfied that the applicant had a well-founded fear of persecution. The function the Act requires the Tribunal to carry out is to determine whether the Tribunal is satisfied on the material before it that there is a real risk that the applicant may suffer persecution if returned to the country of nationality. Such an assessment of risk involves the possibility that events may have occurred in the past, and may occur in the future, as claimed by an applicant.

28                  The grant of a protection visa under the Act is not in the discretion of the Minister, delegate or Tribunal. The terms of the exercise of the power are as set out in the Act. A visa must be granted or refused upon determinations made by the Minister, delegate or Tribunal according to law, namely, upon the decision-maker being satisfied, or not satisfied, that the applicant has a well-founded fear of persecution if returned to the country of nationality. The decision-maker’s satisfaction is a legal pre-condition determined upon factual matters, and is the foundation for the exercise of the administrative power. The decision-maker cannot be satisfied as a matter of discretion, accepting or rejecting material at will, nor may the requisite satisfaction be arrived at in the absence of good faith. It must be formed reasonably upon the material before the decision-maker. (See:  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [113], [119], [136]-[137], [145]; approved in City of Enfield per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]).

29                  The terms of the Act require the decision-maker to make an adjudication. The nature and importance of the decision to be made requires the determination to be made “judicially”, although, of course, not in the exercise of judicial power. As Sedley J stated in R v Higher Education Funding Council; ex parte Institute of Dental Surgery [1994] 1 All ER 651 at 667):

“In the modern state the decision of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v Baldwin [1963] 2 All ER 66, [1964] AC 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it ‘judicial’ in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.”

30                  As noted above, the availability to a decision-maker of a statutory power to grant or refuse a visa, or the “jurisdictional” base for exercise of the power, depends upon compliance by that person with the requirements of the Act. As Gummow J stated in Eshetu (at [145]):

“Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision‑maker was arrived at reasonably, I would not adopt the criterion advanced by Lord Wilberforce.  I would prefer the scrutiny of the written statement provided under s 430 by a criterion of ‘reasonableness review’ (Schwartz, Administrative Law, 3^rd ed (1991), § 10.32).  This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119. It would permit review in cases where the satisfaction of the decision‑maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds (cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366; Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776‑777).”

31                  A similar approach has been taken by the Supreme Court of Canada. In Canada (Director of Investigation and Research) v Southam Incorporated [1997] 1 SCR 748 at [56], approved in Baker v Canada (Minister of Citizenship and Immigration) (1999) 174 DLR (4^th) 193 (at [63]), Iacobucci J said as follows:

“An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.”

32                  In the absence of probative material or logical grounds capable of supporting a conclusion that a claim by an applicant that an event or circumstance occurred or existed is fraudulent, a Tribunal could not be shown to have made a determination as to satisfaction required by the Act if it purported to base that determination upon such a conclusion.

33                  The obligation set out in s 430 of the Act that the Tribunal provide reasons describing how the determination has been made, confirms the object of the Act that the process be rational, and demonstrably so. It may be contrasted with a decision made in the exercise of a discretion. The latter may not depend upon, nor oblige the exposure of, a reasoned process. At law, exercise of a discretion may be outside the terms of a discretionary power conferred if it can be shown that the use of power has produced a decision that is wholly unreasonable such that it is absurd or perverse. Something more must be shown in those circumstances than absence of a rational process, which may be no more than an element in the unreasonableness of a decision. A discretionary decision, made arbitrarily, may not be absurd or perverse nor, therefore, wholly unreasonable. (See:  Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 per Gummow J at 168.) But, an arbitrary decision cannot be a reasoned decision:

“Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense of that term if it is unreasoned; if it is lacking ostensible logic or comprehensible justification. Instances of irrational decisions include those made in an arbitrary fashion, perhaps ‘by spinning a coin or consulting an astrologer’. … ‘Absurd’ or ‘perverse’ decisions may be presumed to have been decided in that fashion, as may decisions where the given reasons are simply unintelligible. Less extreme examples of the irrational decision include those in which there is an absence of logical connection between the evidence and the ostensible reasons for the decision, where the reasons display no adequate justification for the decision, or where there is absence of evidence in support of the decision.

…

When reasons are required, either by statute or by the growing common law requirements, or where they are provided, even though not strictly required, those reasons must be both ‘adequate and intelligible’. They must therefore both rationally relate to the evidence in the case, … and be comprehensible in themselves. …”

(de Smith, Woolf & Jowell Judicial Review of Administrative Action 5^th ed 1995 pars 13-019 - 13-020)

34                  An apparent finding on credibility that amounts to no more than an assertion that aspects of an applicant’s claim are “implausible”, or are “not credible”, raises the issue whether the decision-making process has been duly disclosed and explained. (See City of Enfield per Gaudron J at [35]; Baker v Canada  at [35]-[44]).

35                  The obligation to explain how a decision has been made as imposed by s 430, is a statutory safeguard against an irrational decision. (See:  de Smith, Woolf & Jowell at pars 13-019 – 13-022; Aronson, Dyer Judicial Review of Administrative Action 2^nd ed 2000 at p 143.) The obligation to provide reasons in the form prescribed discloses a requirement of the Act that the procedure by which a decision is made be a rational procedure, not arbitrary or capricious. (See:  R v Connell; Ex parte The Hetton Bellbird Collieries Limited (No 2) (1944) 69 CLR 407 per Latham CJ at 432; Buck v Bavone (1976) 135 CLR 110 per Gibbs J at 118 – 119).

36                  The reasons required by s 430 are not directed to demonstrating the reasonableness of a particular finding of fact but to displaying the method used to reach the conclusion. The purpose of s 430 is to require the Tribunal to show how a decision has been made, and, if an error recognised by the Act has occurred in the decision-making process, it may be expected that the error will be revealed in the reasons. Section 430 provides the substance to the right provided in s 476, to obtain judicial review of a decision. Section 430 of the Act is to be construed according to the principle underlying it, namely, that the requirement that the determination of the Tribunal be based upon some probative material or logical grounds.

37                  As stated by Black CJ, Sundberg, Katz and Hely JJ in Singh v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 503 at [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.  As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act:

            ‘Section 43 is not to be construed in a pedantic spirit, but sensibly.  If the Tribunal’s reasons expose the logic of its decision, and contain findings on matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include ‘findings on material questions of fact’”.

38                  Ground for review under the Act will not be made out by showing that a Tribunal has made findings of fact that are barely conceivable on the material before it. (See: Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518.) A Tribunal does not err in law by making a “wrong” finding of fact. (See:  Waterford v The Commonwealth of Australia (1987) 163 CLR 54 per Brennan J at 77.) The principle thus expressed is that a conclusion of fact, however unlikely, cannot be a “wrong” conclusion if there is some material able to support it. That principle does not extend to a conclusion made in the absence of probative material (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 359 and Deane J at 366) or a conclusion based upon the existence of a fact that does not exist.

39                  Ground for review will be shown, however,by failure of the Tribunal to observe the requirement of the Act that the decision be made by a rational process. There must be a process of reasoning that is sufficient to support the determination, being reasoning that does not display a logical non sequitur. (See:  Dornan v Riordan (1990) 24 FCR 564; T Thawley, “An Adequate Statement of Reasons for an Administrative Decision”, Australian Journal of Administrative Law3(1996) 189 at 196 – 197; Wade Administrative Law 6^th ed 1988 at 251.) The lack of a rational connection between the reasons provided and the decision of the Tribunal will expose a failure by the Tribunal to perform the function required of it by the Act. Put another way, there will have been a purported but not real exercise of function and jurisdiction. (See:  Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420 per Jordan CJ; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 per Barwick CJ at 479-480, per Gibbs J at 483.) The Tribunal must give “proper, genuine and realistic consideration upon the merits” to the material questions of fact before it. (See:  Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 per Merkel J at [17]; Rasaiah v Minister for Immigration and Multicultural Affairs [2000] FCA 1371 per Beaumont J at [27], [31]).

40                  The requirement that there be “logical grounds” or a “logical process”, discussed in the extracts cited earlier, is predicated upon use of the words “logic” or “logical” according to their established meaning. “Logic” is the science of formal reasoning using principles of valid inference and “logical” is that which conforms to the laws of correct reasoning. That which is “illogical” is devoid of or contrary to logic, or ignorant or negligent of, and not in conformity with, the laws of correct reasoning. (See:  The Oxford English Dictionary 2^nd ed 1989; The Macquarie Dictionary 2^nd ed 1991.) Reasons that are illogical, therefore, will have a consequence in law when an administrative decision is required to be supported by logical grounds. The absence of logical grounds will reveal that the real question has not been addressed and that the function of the decision-maker has not been carried out. (See:  Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 578 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.) However, if strong disagreement with a reasoning process on an issue of fact is expressed by describing the reasoning as “wrong” and using words such as “unreasonable” or “illogical” to emphasise the degree of disagreement, that discourse will not identify any legal consequence in respect of the reasoning. (See:  Eshetu per Gleeson CJ and McHugh J at [40].) “Illogical” used colloquially for emphasis or as hyperbole, does not raise the point of law discussed above. I understand the comments in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 420-422 to have that distinction in mind.

41                  It is acknowledged that finding relevant facts and determining whether a person is entitled to the grant of a protection visa will be a difficult task for a decision-maker:

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

(Goodwin-Gill The Refugee in International Law 2^nd ed 1996 at p 39)

42                  In the absence of some material that is capable of supporting a conclusion that a claim is fraudulent, a Tribunal must exercise great caution before drawing inferences from perceived inconsistencies in the evidence of an applicant where those inferences are relied upon to discount the applicant’s credibility and, for that reason, to refuse the application for a protection visa.

43                  The following comments, although directed to the operation of the system determining refugee status in Canada, have relevance to the method of determination used under the Act:

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

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

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

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

Given the objective focus of the Convention definition, the purpose of eliciting evidence from the claimant herself is not to ascertain whether she harbours a subjective fear of return.  Rather, it is to establish how circumstances in the homeland impact on her own security, and why she feels compelled to seek protection abroad.” (footnotes omitted)

(Hathaway The Law of Refugee Status 1991 at 84-86)

44                  In the instant matter a cardinal issue in the appellant’s case was his claim that he had been taken into custody by security forces on 2 August 1996. The Tribunal found as a fact that that event did not occur and, therefore, that it was not satisfied that there was a real risk that the appellant may suffer persecution if returned to Sri Lanka. If that material finding of fact, upon which the Tribunal determined that it was not satisfied as required by the Act, was not supported by logical grounds then the Tribunal did not carry out the function directed by the Act and grounds for judicial review would arise under either s 476(1)(b), (c), (e) or (g). (See: Eshetu per Gummow J at [154].)

45                  In its reasons the Tribunal stated that a ground for concluding that the appellant had not been taken into custody was that the claim lacked “credibility”. If, as was the case, occurrence of that event was not inherently unlikely, such a bare assertion standing alone could not have provided logical grounds for finding that the event did not occur.

46                  However, in explaining its decision the Tribunal gave other reasons for finding that the appellant had not been detained as he claimed. The claim that he was detained in August 1996 is treated as a fabrication not only because the Tribunal found that claim not to be “credible” but because the Tribunal concluded on other findings of fact that the appellant could not be believed. It is unnecessary to set out the relevant findings of the Tribunal. The reasons provided by the Tribunal for concluding that the appellant was not a person of truth may not have been compelling and the reasons relied upon by the Tribunal for concluding that the appellant “fabricated his claims to refugee status” may not have been persuasive to another mind addressing the same material, but that provides no ground for judicial review. Once the Tribunal determined upon some material that the word of the appellant could not be relied upon and that he had not been detained as claimed, those findings provided logical grounds for the conclusion of the Tribunal that it was not satisfied the appellant had a well-founded fear of persecution. As noted by Hathaway, it does not follow as a matter of course, that a well-founded fear of persecution will not exist if an applicant’s claims include statements that are false. No issue in that regard arose in this appeal, however.

47                  It follows that the appeal must be dismissed.

Associate to Merkel J:

Dated:              21 December 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

CARR J:

48                  I have had the advantage of reading Merkel J’s draft reasons for judgment in this appeal.  I agree generally with those reasons.  The appeal should be dismissed with costs.

Associate to Justice Merkel:

Dated:              21 December 2000

REASONS FOR JUDGMENT

MERKEL J:

49                  The appellant, a citizen of Sri Lanka, is of Tamil ethnicity.  He brings this appeal from the decision of the primary Judge (Heerey J) dismissing his application to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 September 1999.  In its decision, the Tribunal determined that it was not satisfied that the appellant was a refugee and affirmed the decision of the delegate of the Minister not to grant the appellant a protection visa.

50                  The appellant claims to be entitled to a protection visa on the ground that he is a refugee within the meaning of Art 1A(2) of the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“the Convention”).  The appellant claims that he is a refugee as he is outside his country of nationality, Sri Lanka, and is unwilling to return to it because of a well-founded fear of political persecution.  The political persecution he fears is based upon an opinion, allegedly imputed to him by the Sri Lankan authorities, of support for, or involvement with, the Liberation Tigers of Tamil Elam (“LTTE”).

51                  The main ground relied upon by the appellant in his appeal was that the primary Judge erred in not finding that the Tribunal had breached s 430(1)(d) of the Migration Act 1958 (Cth) by making certain findings on material questions of fact without referring to the evidence or the other material upon which those findings were based.  The findings in question related to the appellant’s claim that he was detained and mistreated by the Sri Lankan authorities in August 1996 because of suspected involvement with the LTTE.  In substance, the appellant claimed that because of the political opinion that has been imputed to him he will again be detained and mistreated if he returns to Sri Lanka.

52                  It is clear from the Tribunal’s decision that whether or not the appellant was detained and mistreated by the authorities in August 1996 was a question of fact that it regarded as material to the outcome of the appellant’s case.  The Tribunal concluded that, on the basis of all of the information before it, the appellant was not detained as he claimed in 1996.  At pp 10-14 of its decision the Tribunal outlined, in some detail, why it arrived at that conclusion.

53                  The appellant selected three statements of the Tribunal, which formed part of its reasoning in arriving at the conclusion to which we have referred, and contended that those particular statements constituted findings on material questions of fact.  Consequently, it was contended that the decision was vitiated as a result of the failure of the Tribunal to refer to the evidence or other material on which those findings were based.  The statements were:

“The authorities were not reliant on information provided as late as April 1996 following a sweep of the applicant’s former location in the north of Sri Lanka as to his participation in public affairs in that area.”

“The Tribunal does not find it credible that the applicant would have been released from custody by the payment of a bribe if he had been of any interest to the authorities.”

“Any prospect that the authorities would…be searching for [the appellant] for a Convention reason…several years after his abandonment of his role in Jaffna and some 3 years after his departure from Sri Lanka is not credible…”

54                  The primary Judge did not regard any of the three statements as findings on material questions of fact.  Rather, his Honour considered them to be comments or observations made by the Tribunal in explaining its reasons why it did not accept the appellant’s claims concerning his detention in August 1996.

55                  Relevantly, the material question of fact, being the fact upon which the particular case turned (Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 482), was whether the appellant was detained and mistreated as he alleged in August 1996.  Each of the statements which are sought to be impugned under s 430(1), were matters which, together with other matters, were set out by the Tribunal as cumulative reasons for arriving at its conclusion that the appellant was not to be believed in respect of his claims concerning his detention and mistreatment.  Thus, each of the matters were steps in the reasoning of the Tribunal in arriving at its finding on the relevant material question of fact.

56                  Put simply, steps in the reasoning of the Tribunal in arriving at its finding on the relevant material question of fact are not, in themselves, findings on the material question of fact as that term has been explained in Singh.  Of course, if a step in the reasoning is the basis for the ultimate finding, it may be that that will, in itself, be sufficient for the step to constitute a finding on the material question of fact.  However, that does not apply in the present case as the Tribunal relied upon its reasons cumulatively for its finding on the material question of fact.

57                  Accordingly, the Tribunal was not under an obligation under s 430(1)(d) to refer to the evidence or other material on which the selected statements were based.  As was the case in Singh (at 484) we consider that, on a fair reading of its detailed reasons, the Tribunal has complied with s 430(1) and has explained why it reached a conclusion adverse to the case of the appellant.

58                  The appellant relied on a second ground of appeal, being that the Tribunal had failed to take into account the possibility that its findings against the appellant in respect of his August 1996 detention might be wrong.  However, when confronted with the absence of anything in the reasons of the Tribunal that suggested it had any real doubt as to its findings (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239-241, 253 and 255), counsel for the appellant accepted that the second ground depended upon a successful outcome on the first ground.  As the appellant has not succeeded on the first ground it must follow from the concession that the second ground must also fail.  In any event, we are satisfied that in the present case there was nothing in the reasons of the Tribunal that suggested it had any real doubt as to its findings in relation to alleged detention and, therefore, there was no occasion for it to be obliged to take into account the possibility that the alleged detention had occurred.

59                  Since preparing these reasons for judgment I have had the benefit of reading in draft the reasons for judgment of Lee J.  I also have concerns at the confidence with which a some members of the Refugee Review Tribunal find themselves able to make adverse findings on credibility on the basis that the evidence given by claimants is “implausible”, “incredible” or “concocted”.  Anyone experienced in fact finding would be well aware that in the usual course clear and cogent evidence is necessary before such strong findings are made against a witness.  Whether, and in what circumstances, a court can set aside a decision under the Act that has been made on the basis of such findings is a vexed question.  It is sufficient for present purposes to state that it would be an abuse of the powers and duties of a tribunal to make findings in such terms for the purpose of immunising the decision from judicial review or without having a proper basis for doing so.

60                  For the above reasons, the appeal is to be dismissed with costs.

Associate:

Dated:              21 December 2000