FEDERAL COURT OF AUSTRALIA

Saha v Minister for Immigration & Multicultural Affairs [2001] FCA 520

MIGRATION – application for review of decision of Refugee Review Tribunal affirming a decision not to grant a protection visa – whether Tribunal committed reviewable error in reaching findings of fact or in observation of procedures required of it or in interpretation or application of law – no reviewable error disclosed

Migration Act 1958 (Cth) ss 424A, 424B, 441A & 476(1)

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 referred to

Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 referred to

Tharaisara v Minister for Immigration & Multicultural Affairs [2000] FCA 520 referred to

Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331 referred to

Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908 referred to

Santa Sabina College v Minister for Education (1985) 58 ALR 527 referred to

Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 referred to

Minister for Immigration & Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259 referred to

Vetter v Lake Macquarie City Council [2001] HCA 12 applied

TITO KUMAR SAHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 58 OF 2001

JUDGE: BEAUMONT J

DATE: 27 APRIL 2001

PLACE: SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed, with costs.

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

REASONS FOR JUDGMENT

BEAUMONT J:

introduction

1                     This is an application for judicial review of the decision of the Refugee Review Tribunal, (“the Tribunal”), under the Migration Act 1958 (Cth) (“the Act”) to affirm the decision of the Minister to refuse to grant the applicant a protection visa. The grounds for review are:

1.                  That the Tribunal failed to make a finding on the material question of fact and this constitutes a reviewable error under s 476(1)(a) and (e) of the Act.

2.                  That the Tribunal failed to observe the procedures required of it by ss 424A and 424B, and 441A of the Act, and that within the meaning of s 476(1)(e) of the Act, the Tribunal made errors of law, being an incorrect interpretation of the law and/or an incorrect application of the law to the facts.

2                     In order to understand the issues that now arise it will be necessary to refer to the Tribunal’s reasons. The Tribunal first noted the applicant's claims and evidence as follows:

(a) The applicant's claims made to the Department

3                     The Tribunal noted that the following claims had been made by the applicant in his application to the Department.

4                     The applicant was born and educated in Bangladesh. He worked in Bangladesh and then went to another country to work. He has never married. His family are in Bangladesh. To enter Australia he travelled on a passport from the second country claiming that he was an illegal resident in that country. He claimed to fear persecution in both countries. He claimed to have left Bangladesh for the second country so as to escape persecution in Bangladesh, but that he had been unable to obtain protection in the other country because he had been involved in a Hindu minority organisation, and Muslim activists had tried to kill him.

5                     The applicant claimed to have departed Bangladesh legally by travelling to a third country and to have been deported from the second country he had worked in. The applicant's advisers stated that the applicant had previously applied to Australia for protection, but on the advice of a previous adviser, had withdrawn the application. The applicant had been injured in Bangladesh by Muslim activists, the applicant's brother had been shot at, and Bangladesh was increasingly becoming a Muslim country.

(b) Claims submitted in writing to the Tribunal

6                     The Tribunal noted that a few days before the Tribunal hearing the applicant had submitted to it further material, making the following claims:

7                     At school the applicant was called names by classmates. He was from a well off and high caste Hindu family. One of his relatives had been killed by Muslims. His family's land had been occupied by local Muslim leaders. Local Muslims would try to get money from his father at his shop. The applicant and a group of Hindu businessmen had organised a meeting with the leader of a unified religious group to protest against thuggery by local Muslims. The next day the applicant was attacked and robbed. However, the police would not register the attack and threw his father out of the police station. The applicant and some friends formed a Hindu youth group, which engaged in a conflict with Muslim youths where the applicant was injured and knocked down.

8                     Soon afterwards the family home was raided by the police. He went to stay with a relative but returned later to find that a fabricated case had been made out against him. His family therefore advised him to leave the country. After relocating illegally he returned and obtained a Bangladesh passport and departed legally. His father later arranged his travel to the third country, but after the expiration of his visa, the applicant attempted to use false documents and was arrested and deported. On his return, a large crowd of Muslims went to the family home and demanded he be turned over to them. They then destroyed the house.

9                     The matter was reported to the police but the attacks continued. On one occasion, his sister was at home and the mob threatened to rape her. The applicant later organised a meeting with his fellow workers but fundamentalists became angry at this and attacked his house. The applicant claims that he was kidnapped, and had had a ransom demand made against his father by a local Muslim, and that this ransom had been paid. The applicant eventually left the country and sought protection in Australia.

(c) Claims made by the applicant at the hearing before the Tribunal:

10                  Before the Tribunal the applicant made these claims.

11                  He feared to return to Bangladesh, fearing harm from members of local Muslim groups because he was a Hindu and he and a number of friends had formed a group, which had operated for several years. The applicant said that the group operated with a very low profile but was formed as the Hindus do not have the courage to speak up. During the course of the hearing the Tribunal had put to the applicant that human rights organisations for Bangladesh, in their reports from the mid-1990s had made no mention of serious problems for Hindus. The Tribunal then noted that in response to a further question from it the applicant explained his role in the non-Muslim group previously mentioned.

12                  The applicant said that he was an ordinary member. He thought he was still a member, but was not sure, having last had contact with the president several years ago. He acknowledged, the Tribunal noted, that he had no current involvement but added that the leader's home had been attacked several times. The Tribunal noted that the applicant informed it that after his return to Bangladesh his home had been attacked, although he was not there, but his mother had been threatened.

13                  The Tribunal noted that in response to questions from the Tribunal, the applicant stated that he could not relocate elsewhere in Bangladesh, to areas such as the Dakah region or Chittagong, as he, the applicant, was a revolutionary Hindu and wanted his rights as a citizen and that “if I go to these cities people will want to know who I am and where I am from”.

14                  The applicant, the Tribunal noted, informed it that Muslim groups “had a big network and will come to know”.

15                  The Tribunal further noted that it had put to the applicant independent evidence from a priest, which is referred to below. The applicant said “incidents do occur.”

16                  The Tribunal further noted that the applicant had stated that the foreign passport held by the applicant had been bought by him and was in a false name.

17                  The Tribunal recorded that, in submissions after the hearing was concluded, the applicant's adviser had referred to a copy of the 2000 report from the non-Muslim group, which related specific examples of communal violence directed at minority groups.

18                  The Tribunal further recorded that the applicant had also submitted photographs and letters, including a letter from the president of the press club of the applicant's town, dated July 2000, stating that the applicant had been injured in an incident, and that he had also been kidnapped and held for ransom.

19                  The Tribunal went on to state that it had considered a body of "independent" evidence. It will not be feasible to attempt to summarise all of this material but some aspects may be noted for present purposes. The Tribunal first referred to a Country Report on Human Rights Practice in respect of Bangladesh for 1999, released by the US Department of State, 25 February 2000, in which it was stated that the government, "continued to restrict or deny many fundamental rights, and failed to prevent or punish abuses committed by others." Reference is made to police committing a number of extra-judicial killings, deaths in police custody under suspicious circumstances and the routine use by police of torture, and other forms of abuse while interrogating suspects. The US Department of State publication mentioned and developed the issue of tension between executive and judiciary during the year in question.

20                  The Tribunal further mentioned a statement in a report in the Far Eastern Economic Review, dated 25 June 1998, stating that in that year, two political parties, the BNP and the Awami had agreed that 750 cases filed against around 250,000 BNP activists would be reviewed immediately and that those without basis would be withdrawn. However, three months after that statement all charges still stood. According to the Far Eastern Economic Review, those charged "are hounded by local police and often forced to flee their home", a statement attributed to a noted lawyer and former Prime Minister, Moudud Ahmed.

21                  The Tribunal also referred to statements made in a report by the Bureau of Democracy, Human Rights and Labour, dated February 1998, in respect of Bangladesh, purporting to give a profile of asylum claims and country conditions stating that the [United States] embassy had, as of December 1997, examined several hundred documents submitted by asylum applicants but none had proved to be genuine. It was there reported, "a particularly active market for fabricated documents ... relating to the Jatiyo Party ... altered or counterfeit newspaper articles are another less frequent but notable example of document fraud".

22                  The Tribunal also mentioned a DFAT Country Information Report No. 22/96, stating that fraudulent and bogus official documents were still commonly and easily obtainable. The Tribunal noted also a Reuters business briefing, dated 13 May 1998, reporting that widespread fraud in immigration applications from Bangladesh was uncovered in a New Zealand immigration operation.

23                  The Tribunal mentioned a report in the Daily Star newspaper, dated 31 January 2000, containing references to the passage through Parliament of a Bill, designed to criminalise and penalise the filing of a case on a false charge.

24                  As previously mentioned, in the Tribunal's reasons the Tribunal cited a letter from the representative of Archbishop Michael Rozario, namely the Reverend. R W Timm, former Secretary, Commission for Justice and Peace of the Catholic Bishops' Conference of Bangladesh, dated 8 July 2000. The Tribunal said that Rev. Timm was one of the reporters for the publication ‘Human Rights Report’ an annual report on human rights in Bangladesh in which comment was specifically made on the situation of religious minorities. The Rev. Timm concluded with a comment on the overall situation of people in Bangladesh as follows:

“Though you have not asked it, I think it will be helpful for me to say something about our experience over the years. We have not had a single genuine refugee yet among those who have applied in any country for refuge based on political or religious persecution. In all our investigations we have learned many ways of deceitful attempts, including so called human rights workers vouching for the authenticity of cases (in return for handsome payments). Each case has to stand on its own, however, since a genuine case may someday turn up.”

25                  The Tribunal mentioned, also, a Country Information Report (497/96) on Bangladesh, referring to comments in relation to political violence. The Tribunal also referred to a report by the Bureau of Democracy, Human and Rights and Labour, February 1998, stating that the dominance in Bangladesh of Islam can place members of minority religious groups such as Hindus, Christians and Buddhists at a disadvantage both socially and economically. It stated, "They are also sometimes the object of communal violence. Nevertheless, the minority religious communities of Bangladesh have generally been able to live and worship with relatively few difficulties". However, this report, as the Tribunal noted, went on to state that “there are occasional reports of violence directed against religious minorities”. Two instances were given. The report continued:

“In both instances the government moved quickly to contain these outbreaks. Islamic fundamentalism is not an important force in Bangladesh, partially because Bangladesh's political history has associated fundamentalist with the anti independence movement.”

26                  The Tribunal next referred to a Country Information Report (376/98), stating:

“Bangladesh is one of the Islamic world's most moderate countries. The majority of Bangladesh opinion leaders from the urban middle classes oppose mixing religion and politics . Bangladesh is likely to remain a moderate state, where those advocating a political Islam are tolerated within the political mainstream and receive a moderate electoral support.”

27                  The Tribunal then picked up a number of references from a number of sources, which it described as further independent country information. The Tribunal stated that this information indicated that the majority of Bangladeshis are not fundamentalist Muslims, and that most Bangladeshis do not observe some or all Muslim religious practices, so that whilst Islam is the state religion, Bangladesh is not an Islamic state.

28                  However, the Tribunal noted that according to this information, Islamic extremists do exist, but that their popularity is small and decreasing, as evidenced by their declining position in parliamentary election results, the details of which have been given. The Tribunal noted that according to these sources, fundamentalism where it does exist is stronger in the countryside, and that the country's Muslims belong to, " a benign strain of Islam". The Tribunal noted that the current ruling party of Bangladesh is the Awami League, which advocates, amongst other things, a secular state.

29                  The Tribunal went on to quote from Country Information Report 180/96,, dealing with the treatment of Christians in Bangladesh, and noted that according to this report, "religious minorities in Bangladesh do not suffer systematic persecution", although the report further stated that, "sometimes incidents do occur," but that the Bangladesh government certainly does not encourage these sorts of acts against any minority group. Other material was mentioned, but for the present purposes I need not refer to it.

THE TRIBUNAL’S FINDINGS AND REASONS

30                  In order to understand the issues that arise from the application for the initial review, it will be necessary to refer to these reasons in some detail. The Tribunal commenced by stating that it was significant that the applicant had made an initial application shortly after arrival in Australia, and there he stated briefly that he was injured by Muslim activists, that his brother had been attacked and shot at, and that Bangladesh was increasingly becoming a Muslim country.

31                  The Tribunal noted that this application had been submitted with the assistance of the same adviser who had represented him throughout. However, as the Tribunal observed, the applicant then withdrew that application and made a further application at a later date. In that further application, little detail was provided. It was not, the Tribunal said, until a week prior to the Tribunal hearing, that the applicant made detailed claims.

32                  The Tribunal stated that:

“It is clear [from the first application] that only two incidents are referred to as being significant.”

33                  The Tribunal then posed for itself the question, "Why would the applicant not have mentioned that only months previously (as claimed in the declaration and at hearing), he had been kidnapped and held for ransom? Why would he not have mentioned any of the other serious matters referred to in his declaration, such as the attack on his sister?". The Tribunal went on to say that it considered that this was because these events did not happen.

34                  The Tribunal said that it was prepared to accept that what the applicant had first said in his application was an accurate recounting of what had happened up until that time, but that the Tribunal considered that his later account of happenings was "fabricated and exaggerated". It followed, the Tribunal said, that the documents presented by him, such as the one from his local press club president referring to his kidnapping, "ha[d] been written with a view to this fabrication and exaggeration".

35                  The Tribunal went on to find that the applicant's account of his history in respect to Bangladesh and to what occurred to him is, "exaggerated and that in this respect he was not a credible witness". The Tribunal went on to say, "I find that his evidence of matters which occurred after his first application, such as his father being attacked, is not reliable".

36                  In relation to the letters from the non-Muslim group and from the local press club, the Tribunal found that, although four years apart, they had been copied from somewhere. The Tribunal said that the later letters, that is to say the letters dated in the year 2000, are near replicas of the earlier ones dated 1996. The Tribunal said:

“It is apparent to me that they have been, in the light of my above findings, affected by the applicant's exaggeration of his history. I place little weight on them. I notice the letters from the [non-Muslim group] refer to him as an active member. That is not true, even on his evidence and is a further reflection of their unreliability.”

37                  The Tribunal said that it was prepared to accept that the applicant was called derogatory names at school, and that he and some friends had formed a Hindu group which had operated on a low level basis for a few years, and that he had had an association with the non-Muslim group. However, the Tribunal said that it did not accept that this was anything significant, nor that the applicant was a member of that organisation.

38                  The Tribunal stated that it did accept that during the communal disturbances, the applicant had been badly injured by Muslims bent on destruction of the local Kali temple, and that the applicant had required treatment for his injuries. The Tribunal stated that it further accepted that the applicant's brother had been attacked and shot at by Muslims.

39                  The Tribunal noted the applicant's claim that in late 1992 the applicant had been involved in a skirmish in the lead up to the mosque incident, which in turn involved a conflict between Muslims and Hindus. The Tribunal noted further the claim that the applicant feared that Muslim groups may harm him. The Tribunal found that the independent evidence indicated that Hindus in Bangladesh can suffer some discrimination but that the government acts quickly to curb any problems, the view of the government (and the general view of the people) is , generally speaking, of a secular kind, that the particular Muslim group in question have little electoral support, and that people are able to live their lives and practice their religion with little difficulty.

40                  The Tribunal said:

“Neither the name calling, nor the two incidents which I accept occurred, are individually, nor on an accumulative basis, of such seriousness as to constitute persecution within the meaning of the Convention. I do not accept that the applicant would face any harm on account of his religion, nor resulting from either of the two accepted incidents if he were to return to Bangladesh in the reasonably foreseeable future.”

41                  The Tribunal went on to summarise its conclusions as follows:

“Overall, whilst the applicant has complained of discrimination and harm, his history and accepted evidence does not demonstrate such. He comes from a well-off family, has been involved in politics, albeit on his own evidence, in a low level manner, has been actively involved in religious groups and activities and has worked in the family business. This is not the background of someone in the context of a country such as Bangladesh where there is widespread poverty and limited access to higher education … who has been seriously affected by discrimination.”

42                  For those reasons the Tribunal concluded that the applicant did not have a well founded fear of persecution within the meaning of the Convention for reasons of his religious beliefs or political career.

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW

43                  As mentioned, the applicant seeks to ground his application for judicial review on several bases. It will be convenient to deal with them in turn.

44                  The first ground relied upon is (as noted) a claim of failure to make a finding on a material question of fact. In support of this ground, in his careful written submission, Mr Lloyd of counsel has prepared a table which states first, the claims made by the applicant and secondly, the Tribunal's response, or in some cases non-response. The particular matter relied on for present purposes is as follows:

45                  In his written submission contained in his adviser's letter dated 27 July 2000, the applicant stated that in 1990 he was attacked by Muslims who were attacking a Hindu temple. He stated that he was attacked with hockey sticks, chased to the edge of a roof, had his throat scratched at with a razor, was forced to jump from the roof and was badly injured in the course of these activities. Following the incident a false charge was filed against him by "Muslim fanatics".

46                  On behalf of the applicant, it is said that the Tribunal accepted that the injury had occurred, but the Tribunal made no finding on the question whether the incident had led to a false charge being filed against him. Moreover, the argument runs, the Tribunal did not consider that the beatings/injuries he received were serious enough to constitute persecution. It is said, therefore, on behalf of the applicant, that although the Tribunal accepted that the incident occurred, it did not make any finding on the question of whether the applicant faced a false charge upon his return to Bangladesh, and that this failure constitutes an error of the kind described in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287. It is said, in this connection, that the application for an order of review, for the sake of brevity, referred only to a breach of s430(1)(c) of the Act, but that this also constitutes a reviewable error under s 476(1)(a) of the Act (reference being made in this connection to the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469).

47                  I have difficulty accepting the argument. In Singh's case, the majority of the Full Federal Court (at pars 55,56), explained that materiality in this context could arise in one of two ways. First, it could arise (obviously) if the matter were material to the Tribunal's process of reasoning. Secondly, materiality could arise (the majority of Full Court held), if the applicant's case was presented in such a way that it was necessary for the Tribunal to deal with a particular aspect. However, in the present case, when the Tribunal's reasons are read as a whole, I cannot accept that it was necessary for it to make a finding on the particular point raised. As noted, the allegation of the false charge incident was raised only in the letter written by the applicant's advisers, dated 27 July 2000. The Tribunal went to some length to emphasise that the lateness of the provision of the detail of this information reflected poorly on the credibility of the applicant's claims overall. In other words, the approach taken by the Tribunal to what was material was conditioned, properly I think, by the assessment or judgement that the Tribunal was not only entitled, but was bound, to make on the overall credibility of the case sought to be made on behalf of the applicant. As has been noted, the Tribunal found, for the reasons it gave, that overall the applicant’s case lacked plausibility and suffered from fundamental defects in terms of the exaggerated nature of the claims made. These are in truth issues not only of credit, but of credibility, which depend upon the Tribunal's assessment, guided as it was (and as it was entitled to be guided), by the sequence of events which objectively occurred, that is to say, the timing and manner in which the details of the information came forward to the Tribunal from the applicant’s advisers. In my opinion, given the Tribunal's legitimate approach on this aspect, I do not consider that the particular matter now pointed to was "material", for the purposes of s 430(1)(c) of the Act.

48                  The second ground of review is the applicant's claim that the Tribunal failed to comply with ss 424A, 424B and 441A of the Act. By those provisions, the Tribunal is required to comply with a certain procedure, in the events there specified. In those events, the visa applicant is required to be made aware of the particulars of certain information. Subject to s 424A(3), the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason for affirming the decision under review, and ensure, so far as reasonably practicable, that the applicant understands why it is relevant to the review, and invite the applicant to comment on it (see s 424A(1) of the Act). However, s 424A(3) provides that the section does not apply to information (amongst other things) that is not specifically about the applicant or other person, and is just about a class of persons of which the applicant or other person is a member. It is clear then, that information that is specifically about an applicant as distinct from information that is just about a class of persons, of which an applicant is a member, must be disclosed.

49                  It is true, as the argument for the applicant stated, that the Tribunal’s reasons indicate that it relied upon a significant amount of information that was not sourced from the applicant, and that this information is used by the Tribunal to reject the applicant's claim to face discrimination. In that sense, I accept that it was information which formed part of the Tribunal's reasons for affirming the decision. However, in my opinion s 424A(3) is applicable in the present case. In Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301, Merkel J, at par 21, explained that the following propositions can be taken to have been established by the cases in this areas.

50                  First, the obligation to provide the information in question is enlivened when the Tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant. Secondly, if information adverse to an applicant is relied upon in the reasons of the Tribunal, the failure to have complied with the statutory requirements in respect of that information found is a ground of review. Thirdly, untested assertions, communicated to or received by the applicant, can constitute information irrespective of whether the information is reliable or has a sound factual basis.

51                  Thus, the section can apply when the Tribunal has received information, regardless of its source, if it considers the information would be a reason or part of a reason for affirming the delegate’s decision. Fourthly, the section is concerned with information of which the Tribunal becomes aware of, rather than with its objective decision making process. However, in two cases, members of the Court have specifically considered the position of "country information" in the present context. In Tharairasa v Minister for Immigration & Multicultural Affairs [2000] FCA 520,Carr J said (at pars 15,16):

“In my opinion, the language of s 424A is clear. Section 424A(1)) is expressed to be subject to subsection (3). Subsection 3(a) provides that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.

I think that the exclusion worked by subsection (3) should be applied according to its terms in this matter. The country information upon which the Tribunal relied was not specifically about the applicant or other person and it was just about a class of persons of which the applicant is a member i.e. Tamil civilians, deportees to Sri Lanka, young Tamils, and Tamils wishing to return to Jaffna for other parts of Sri Lanka. In those circumstances, I do not consider that s 424A required the Tribunal to particulars of this information to the applicant…[a]ccordingly, I reject the applicant's first ground.”

52                  Carr J was followed by Nicholson J in Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331, (at par 28), as follows:

“Section 420 of the Act does not require the Tribunal to refer to every piece of country information which it obtains with respect to an application. The obligation on the Tribunal to give information to an applicant is governed by the provisions of s 424A of the Act. This provides the Tribunal must ‘give to the applicant… particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review’ and ‘invite the applicant to comment on it’. That obligation is ‘subject to subs(3)’ which provides the section does not apply to information ‘that is not specifically about the applicant or another person but is just about a class of persons of which the applicant or other person is a member’.  Country information is of this character so that the section has no application in respect of it. I am reinforced in that view by reference to the reasoning of Carr J in [Tharairasa, above], par 16.”

53                  With respect, I agree. I accept that s 424A will have an application where the information in the Tribunal's decision would be relevant to the review in the sense that it is such that it could have a bearing on the outcome: see Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908, per Hill J, at par 16. I further accept that in the exercise of the discretion to refuse or grant relief by way of judicial review, if it is possible that a different result might be arrived at on the remitter, then the Court is more likely to decline to exercise the discretion and refuse relief: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540 and see also Carlos (above), per Merkel J at par 57, and the other cases there cited.

54                  As Merkel J (above) went on to say there:

“Ultimately, the question of whether the discretion is exercised will depend on the particular circumstances of the case.”

55                  In the present matter, even if I'd been of the view that I should not follow Carr J and Nicholson J on the more general question, I would in the particular circumstances of this case have refused in my discretion to grant relief on this account. It is true, as I have mentioned, that the Tribunal referred to the country information in the course of its reasoning. However, as has been noted from the description I have given of the Tribunal’s process of reasoning, some of the material at least, was actually put by the Tribunal to the applicant during the course of hearing in any event.

56                  Moreover, when the Tribunal's reasons are read as a whole, it emerges that the Tribunal was likely to come to the conclusion it did solely on the ground that the claims made by the applicant lacked credibility in fundamental respects.

57                  The final ground relied upon is a suggestion that there has been an error of law. In essence, the applicant submits that the Tribunal erred when it considered that being beaten and badly injured, or being shot at was not serious enough to constitute persecution. It is accepted of course, on both sides and by myself, that I have jurisdiction to intervene in the present area only if an error of law has been demonstrated, and that an error of fact or mistake in the fact finding process will not enliven the Court’s jurisdiction: see for instance Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

58                  The distinction between an error of fact and an error of law in a statutory context has recently been considered by the High Court of Australia in Vetter v Lake Macquarie City Council [2001] HCA 12. There, Gleeson CJ, Gummow and Callinan JJ said (at par 24):

“Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as was put by Priestly JA in his judgment [(1999) 18 NSWCCR 34 at 48] whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be, susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test for whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer General [(1940) 40 SR (NSW) 126 at 138.]:‘If the facts inferred… from the evidence… are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law’. In his speech in Edwards (Inspector of Taxes) v Bairstowe [1956] AC 14 at 36] Lord Radcliffe identified an error of law as arising if ‘the true and only reasonable conclusion contradicts the determination’”.

59                  Applying that test to the present case, I do not think it can necessarily be said that the facts of an attack and being injured or the fact of being shot at, are necessarily either within or outside the description used in the Convention, in its definition of persecution, for that purpose. It is simply not possible to generalise in this area in a way that will throw up necessarily a question of law.

60                  Moreover, when the Tribunal's reasons in the present case are read as whole, what emerges is that the Tribunal's approach was not grounded on any narrow or specific basis by which certain events were isolated and looked at individually. Rather, the Tribunal approached the matter, properly in my view, by considering all the material before it collectively and as a whole, and forming a judgement or assessment in the light of the criteria laid down by the Convention as explained in the course of authority in the High Court of Australia, which was correctly stated by the Tribunal at the commencement of its reasons (see pages 2 to 4 of those reasons).

61                  It should be noted that there was no suggestion that, in the statement of those general principles, the Tribunal fell into any error. It follows, therefore, that I am of the view that the application must be dismissed and I so order.

62                  The application is dismissed with costs.

Associate:

Dated: 22 May 2001