FEDERAL COURT OF AUSTRALIA

Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196

MIGRATION - appeal from review of a decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa – scheme of procedures for the giving of information by Tribunal and of invitation by Tribunal to give information under ss 424A, 424B and 441A of Migration Act 1958 – operation of scheme – purpose and construction of s 424A – whether information was ‘the reason or part of the reason for affirming the decision’ – degree of assistance and application of s 430 of Act as to relevant ‘reason’ – distinction in circumstances between reason for preferring certain witnesses and evidence and reason for finding central factual matter – whether matters should have been specifically identified to claimant and relevance made clear – where claimant alleged that not given particulars of relevant information and that relevance of that information was not conveyed – no inconsistency between s 424A and s 441A – failure to observe procedures s 424A established – where independent basis for Tribunal decision not affected by procedural error – Tribunal decision affirmed under s 481(1) of Act notwithstanding existence of ground of review made out – not established that failure to take into account relevant considerations – Yusuf discussed.

Migration Act 1958 (Cth) ss 424A, 424B, 441A, 481(1)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 referred to

Minister for Immigration and Multicultural Affairs v X [2001] FCA 858 referred to

Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832 referred to

Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 referred to

Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911 referred to

Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 referred to

Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864 referred to

Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 discussed; not followed in part

Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 discussed; disapproved in part

Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 discussed; disapproved in part

Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 discussed; disapproved in part

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 approved

Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 referred to

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 referred to

Sivaran v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 referred to

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

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 referred to

Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691 referred to

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 referred to

Project Blue Sky v ABA (1998) 194 CLR 355 referred to

ESTHER CHRISTOBELLE NESAMALAR PAUL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 374 of 2001

HEEREY, EMMETT and ALLSOP JJ

29 AUGUST 2001

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  leave be granted to the appellant to further amend the notice of appeal;

2.                  the appeal be dismissed; and

3.                  the appellant pay the respondent’s costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

HEEREY J

1                     Subject to the following comments, I agree with the judgment of Allsop J.

2                     I would grant leave to the appellant to amend her notice of appeal to raise the relevant/irrelevant considerations ground.

3                     While in theory such arguments might have been open prior to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 the reality is that they were rarely advanced, if at all, in the extensive litigation in this Court under Pt 8 of the Migration Act 1958 (Cth), no doubt in the light of s 476(3)(d) and (e) of the Act. 

4                     It is fair to say that Yusuf has opened up an approach to judicial review under Pt 8 which had not been heretofore widely recognised.

Associate:

Dated:  29 August 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

EMMETT J

5                     The appellant, who is a citizen of Sri Lanka, arrived in Australia on 8 December 1995.  On 27 February 1996, the appellant lodged an application for a protection (Class AZ) visa with the Department of Immigration & Multicultural Affairs.  On 19 February 1998, a delegate of the respondent, the Minister for Immigration & Multicultural Affairs (“the Minister”) refused to grant a protection visa and on 18 March 1998 the appellant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.

6                     On 31 March 2000, the Tribunal affirmed the decision not to grant a protection visa.  On 16 May 2000, the appellant lodged an application to this Court for an order of review of the decision of the Tribunal.  On 19 March 2001, a judge of the Court ordered that the application be dismissed with costs.

7                     On 9 April 2001, the appellant lodged a notice of appeal from the orders of the primary judge.  On 7 May 2001 an amended notice of appeal was filed.  When the appeal was called on for hearing, the appellant sought leave to file a further amended notice of appeal.  The Minister opposed the granting of leave to file the further amended notice of appeal.  The Minister also sought to rely on a notice of contention.

THE DECISION OF THE TRIBUNAL

8                     According to the Tribunal’s findings and reasons, the appellant claimed that her husband was killed by the authorities in Sri Lanka in 1995.  She claimed that he had had a history of being suspected of involvement with the Liberation of Tamil Tigers Eelam (“LTTE”) although it was unclear why he may have been taken and killed at that stage.  The appellant also claimed that money and land was extorted from her by the LTTE.  She claimed that the money had been extorted because the LTTE thought she had money due to her, having worked in Saudi Arabia.  She claimed that the land was extorted in order to enable her son to depart from Vavuniya with her. 

9                     The Tribunal said that there were several aspects of the appellant’s claims that caused concern.  It said that the main issue was when her husband died and the issue of her overall credibility.

10                  The material before the Tribunal included the appellant’s protection visa application and written submissions in support of that application.  It also included written submissions in support of the application to the Tribunal for review.  In addition, the appellant gave oral evidence to the Tribunal in the afternoon of 23 November 1999.  The appellant was assisted at her hearing before the Tribunal by an interpreter and her adviser, a solicitor, Mr Paul Fergus.  Another brother, Mr Henry Knight, also gave evidence.

11                  The appellant’s brother, Mr John Knight, had also made an application for a protection visa.  An application for review by the Tribunal of a decision of a delegate of the Minister in relation to John Knight’s application was dealt with by the Tribunal constituted by the same member as constituted the appellant’s matter.  Mr Knight was represented at the hearing before the Tribunal by the same adviser as the appellant.  Mr Knight gave evidence at a hearing of the Tribunal on the morning of 23 November 1999.  In the course of Mr Knight’s hearing, the Tribunal asked Mr Knight and his wife, Mrs Princey Knight, certain questions relevant to the appellant’s application.

12                  The Tribunal said in its reasons that the appellant’s evidence and the evidence of her brother, Henry, and sister in law, Princey Knight, caused it concern.  In particular, there was a significant discrepancy between the evidence of John Knight on the one hand and the evidence of the appellant, Henry Knight and Princey Knight on the other hand, as to when the appellant’s husband died.  The appellant, Henry Knight and Princey Knight said that the appellant’s husband died at the hands of the army in Sri Lanka in 1995.  However, John Knight gave evidence that the appellant’s husband died in about 1980. 

13                  The Tribunal said in its reasons that, having carefully considered all of the evidence relating to that question, it accepted the evidence of John Knight as being true.  The Tribunal found that the appellant and some members of her family were not credible witnesses.  In particular, the Tribunal found that Mrs Princey Knight and Mr Henry Knight were not credible witnesses in the evidence they gave to the Tribunal.

14                  The Tribunal explained that conclusion in the following terms:

“I accept his statement that he didn’t know much and it was only rumoured that the [appellant’s] husband had been killed by the army, and also that many of their relatives had died.  I accept his evidence as he was able to relate the date of the death to other events.  He gave this evidence in an unprompted manner and was quite specific.  He said that his wife’s brother had been killed in 1986 and that the [appellant’s] husband had died before that event.  He said that he thought that his sister’s husband died “about twenty years ago”.  He recalled that after the husband died, his sister travelled to Saudi Arabia to work.  He said that his sister’s son was young at the time and lived with relatives of her husband while she was in Saudi Arabia, though he could not remember exactly who cared for him.  He was asked several times if he was sure of what he was saying and said that he was.”

15                  The Tribunal had serious doubts as to the appellant’s claims relating to extortion and the signing over of land in Vavuniya to the LTTE.  The Tribunal noted that, on the appellant’s evidence, her son has returned to Vavuniya, from where her husband’s family comes, where the family home is and where her husband owned five acres.  The Tribunal doubted that the appellant’s son would have returned there if there were threats or concerns from the LTTE in the area causing serious concerns for his safety there.  The Tribunal considered that it was more reasonable to accept that the appellant’s son had returned because his grandfather had died and his grandmother was alone.

16                  The Tribunal was prepared to accept that the appellant is a 52-year-old Tamil woman who was born in, and who lived at Mahagama, south east of Colombo for the first 27 years of her life.  The Tribunal accepted that the appellant’s husband died about 1980 and that it was rumoured at that time that the death was at the hands of the army.   The Tribunal did not accept that the appellant would suffer any adverse interest of the authorities because of that.  It found that the appellant resided and worked in Saudi Arabia from 1981 until September 1995.

17                  The Tribunal accepted that the appellant may have concerns relating to work, food and shelter if she returned to Sri Lanka.  It accepted that she was concerned as to who would look after her due to her age and how she would survive without money and without knowing where her son was.  While the Tribunal appreciated that the appellant may have some difficulty, because of her age, in finding work and perhaps even finding accommodation, the Tribunal did not accept that those matters would be difficulties for her or harm directed at her for any Convention reason.  In any event, the Tribunal did not accept that the appellant could not reside in the area where she was born and where she lived the first 27 years of her life.  The Tribunal also did not accept that the appellant could not reside in the Vavuniya area where her mother in law lives and where her son has returned.

18                  The written submissions made to the Tribunal in support of the application for review took the form of a letter dated 19 November 1999 from Mr Fergus’ firm, McDonells Solicitors.  The letter comprised seventeen pages containing material under the following headings:

“A.      Claims

B.        Vavuniya and related matters

C.        The nature of the conflict in Sri Lanka

1.         General overview

2.         The situation in the north – historical

3.         The current situation

D.        The situation in Colombo

E.        Extortion

F.        Conclusions”

19                  Under the heading “Claims”, the following assertions were made:

“Reduced to its essentials, this case is about a woman from Vavuniya in the north of Sri Lanka, whose family has long been trying to live with the competing interests of the Sri Lankan Security Forces and the Liberation Tigers of Tamil Eelam.  Mrs Paul claims that they were under suspicion for having assisted the LTTE and have endured harassment, assault and extortion at the hands of the military.  Eventually, Mrs Paul’s husband was abducted and murdered by the army, and she fears that she and her son would be persecuted upon return to Vavuniya.

The issues are thus the [appellant’s] individual claims, the danger to Tamils for reason of their race and imputed political opinion resulting from the situation in Vavuniya especially and the north of Sri Lanka in general, and internal relocation, most notably to Colombo where Mrs Paul claimed her son was staying as at the date of her statutory declaration – 28 February 1996.”

20                  Under the heading “The current situation”, extracts from a number of newspaper reports were set out.  The letter then continued as follows:

“From the information above, the single most important prerequisite to such arrest is being a Tamil.  No other profile is needed.

The situation as described above can be summarised as follows,

1.         There is considerable racial antagonism in Sri Lanka, fed by political opportunism and terrorism of both of the main the protagonists in the ethnic war.

2.         The LTTE have attacked the Sinhala heartland, causing massive damage and loss of life.  They have also been responsible for massive loss of life in the Sri Lankan Army (e.g. the attack at Mullaitivu) and terrorism within the army controlled city of Jaffna.

3.         The security forces therefore have extremely good reason to search very carefully for the LTTE.

4.         The LTTE look like any other Tamils.

5.         Therefore the security forces are using informers to identify LTTE sympathisers and activists.  They are also conducting mass arrests, particularly of young Tamils.

6.         About 700 people have disappeared in army custody since Jaffna was taken, and many of those arrested are tortured for information.  There are credible allegations that about 400 bodies in a mass grave in the peninsula.

It is therefore submitted that quite apart from her specific claims, Mrs Paul has a well founded fear of persecution because of her race were she to return to the north of Sri Lanka.”

21                  Under the heading “Conclusions” was the following:

“In my submission, the claims and evidence advanced by Mrs Paul show that she has well founded fear of persecution for reason of:

(a)       her race,

(b)       the political opinion that has been imputed to her by reason of being a Tamil,

(c)        her relationship with a man who was murdered as an LTTE suspect, and

(d)       her membership of a particular social group, namely her husband’s family.”

22                  In its summary of the claims and evidence before it, the Tribunal referred to the letter of 19 November 1999 summarising its contents “briefly”.  The Tribunal, in its findings and reasons, also referred to the letter in the following terms:

“The [appellant’s] adviser makes a claim that she has a fear in return to Sri Lanka in that she is a Tamil.  I do not accept that Tamils, just because they are Tamil, face problems in Sri Lanka.  I accept that she may not want to return to Sri Lanka because of the civil conflict and terrorist activities occurring there.”

23                  The Tribunal then went on to expand its reasons for that conclusion.  In particular its reasons contain the following passages:

“I accept that the [appellant] has a general fear of harm as a result of the civil conflict in Sri Lanka, this however is not sufficient to bring her within the Convention definition.  Whilst I appreciate that she may not feel safe, it is apparent that the ongoing problems there affect the whole country and most would no doubt have such a fear, Sinhalese and Tamils.

The country information shows that the [appellant] like virtually anyone in Sri Lanka is exposed to the risk of becoming a victim of random violence in a civil conflict situation…  the fact that a recurring pattern of violence can be described in some way such as civil war or communal violence does not mean it cannot amount to persecution within the meaning of the Convention.  The Tribunal notes that the conflict in Sri Lanka is a combination of a racial and political dispute.  Being harmed as a “bystander” or “on the sidelines” is “not sufficient” … “the evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm”.  In the [appellant’s] circumstances I do not accept that she is subject to anything other than the situation of generalised violence in Sri Lanka – something which everyone is unfortunately caught up in.  In considering the [appellant’s] circumstances and her accepted evidence and findings above, and the independent evidence I do not accept that she has a profile which results in her being of any interest, adverse or otherwise, to the authorities, or to anyone else.  She is a middle-aged woman who, on the accepted evidence, has not been of adverse interest to anyone… Many hundreds of thousands of Tamils live in Colombo, there are Tamil groups who are supportive of the government and openly anti-LTTE and their desire for a separate state.  I do not accept that being a Tamil of itself results in adverse interest.  I do not accept that the accepted evidence discloses a Convention connection between her fear of being caught up as a ‘bystander’ or ‘on the sidelines’ and the risk of harm.

Overall, I find that the [appellant] does not have a well-founded fear of persecution for reasons of a Convention ground.”

24                  However, the Tribunal indicated that it was mindful that the findings that it made were likely to cause problems within the appellant’s family.  It said that even if it had accepted the appellant’s evidence as to her husband’s death in 1995, and the rumour that the death was at the hands of the army, and that she had money extorted from her by the LTTE and gave her land to the LTTE, the Tribunal considered that the appellant would not have fallen within the Convention definition of a refugee.  It considered that her fear of harm was not well founded.  The Tribunal concluded that there was no suggestion or evidence to support any inference that the authorities in Sri Lanka suspected the appellant of anything and that there was no reason to suspect that they would harm her.  The Tribunal considered that if the authorities had been interested in the appellant, they had an opportunity to arrest or question her whilst she was in Sri Lanka after her return from Saudi Arabia but according to the appellant, they did not.

25                  The Tribunal considered that, even if the LTTE might seek to extort money from her in the Vavuniya area, she could avoid that by residing in the South.  The Tribunal did not consider that that was relocation as such, since the appellant had lived there before.  While she had hardly lived in Sri Lanka in recent years, she was born in and lived for the first 27 years of her life in the southeast area outside Colombo.  The Tribunal concluded that the appellant could avoid harm by residing the south and that it was reasonably normal in the circumstances for her to do so.

DECISION OF THE PRIMARY JUDGE

26                  Three grounds of review were asserted in the initial application to the Court.  Only two of these grounds were pursued before the primary judge.  Relevantly, they were as follows:

“2.       Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the decision were not observed in that the Tribunal did not comply with ss 424A and 424B [s.476 (1)(a)].

Particulars

The Tribunal’s decision turned, in part, on whether the [appellant’s] husband died ‘about 20 years ago’, as a brother alleged at his own hearing, or whether he died in 1995 as the [appellant] and other family members alleged in the [appellant’s] case.  The brother’s evidence contained information that was specifically about the [appellant’s] husband.  The Tribunal was obliged to invite the [appellant] to comment on the particulars of that information in accordance with ss 424A and 424B.   The Tribunal erred by not giving the [appellant] the full particulars of that evidence and by not issuing an invitation that complied with the statutory code.

3.         Procedures that were required by the Act to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to produce a statement in accordance with s.430 of the Act [s.476 (1)(a)].

Particulars

The Tribunal erred by failing to refer to the evidence, make material findings of fact or give its reasons for its finding I do not accept that Tamils, just because they are Tamils, face problems in Sri Lanka.  There was detailed information put to the Tribunal that pointed to the opposite conclusion.  The Tribunal did not refer to it.”

27                  The primary judge concluded that there was no absence of compliance on the part of the Tribunal with ss 424A or 424B in the events that happened.  His Honour also concluded that there was no failure to comply with s 430 of the Migration Act 1958.

GROUNDS OF THE APPEAL

28                  Grounds 1 and 2 of the notice of appeal, which are not affected by the proposed amendment, are as follows:

“1.       His Honour erred in his interpretation of section 424A of the Migration Act.

Particulars

a.         Error in finding an inconsistency between sub sections (1) and (2) of s 424A of the Migration Act.

b.         Error in finding that sub section (20 of section 424A Migration Act be read ‘as though the opening words thereof comprise “Subject to sub-section (1) and paragraph (a) thereof in particular…”’

2.         His Honour erred in his interpretation of the procedural requirements of section 424A of the Migration Act, in that he failed to find that strict procedural compliance is necessary in relation to sections 424A, 424B and 441A of the Migration Act.”

29                  The proposed amendment to the grounds of appeal is to take account of the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf’s case”).  Original ground 3 is to be deleted, since it could not succeed in the light of the decision of the High Court in Yusuf’s case.  Two additional grounds are proposed as follows:

“3A     His Honour erred in failing to find that the Refugee Review Tribunal had failed to take into account relevant considerations, being the information and evidence before it to the effect that Tamil civilians in Sri Lanka face persecution for reason of their race.

4.         His Honour erred in failing to find that the Tribunal erred in its failure to consider a relevant consideration being whether the harm the appellant may encounter in the context of the conflict in Sri Lanka may have a dual motivation.”

The Court heard full argument on grounds 3A and 4 from counsel for the appellant. 

30                  The appellant should be permitted to rely on the fresh grounds if it is expedient in the interests of justice, to allow grounds to be raised at this stage.  Counsel for the appellant contended that leave should be granted because there was no prejudice to the Minister and grounds 3A and 4 fall within ss 476(1)(b) or 376(1)(c), having regard to the reasons of the High Court in Yusuf’s case.  It was said that the new grounds did not raise issues that were materially different from ground 3 of the original application.

31                  In its reasons in Yusuf’s case, the High Court outlined circumstances in which ignoring relevant material might constitute jurisdictional error.  In doing so, the High Court referred to its own decision in Craig v The State of South Australia (1995) 184 CLR 163 at 179.  The principles stated in Craig’s case were not themselves new.  Nevertheless, it may be that there has been a perception that grounds (b) and (c) of s 476(1) of the Act were not open in circumstances where there was a failure to consider or take into account a relevant consideration.

32                  In any event, the appellant’s contentions are really a complaint that the Tribunal did not accept the contentions advanced on behalf of the appellant.  The complaint is that, notwithstanding the submissions made in the letter of 19 November 1999, the Tribunal nevertheless, would not accept that Tamils, just because they are Tamil, face problems in Sri Lanka.  It is patently clear that the Tribunal did in fact have regard to the contentions advanced in the letter but rejected them.  It may have rejected the contentions somewhat perfunctorily.  Nevertheless, it cannot be doubted that the Tribunal had regard to the letter and considered it.  It could not be said that the Tribunal failed to take those matters into account or failed to consider them.

33                  Further, in its reasons, the Tribunal:

·        referred the appellant’s claim that she would be the subject of extortion;

·        referred to evidence that extortion takes place;

·        referred to evidence that not all areas of Sri Lanka were affected by the insurgency of the LTTE;

·        found that, even if there were attempts to extort property from her in Vavuniya, the motivation of any persons who tried to extort her would be that they would perceive that she had money because of her overseas connections and work; and

·        found that, in any event, the appellant would be able to avoid extortion by moving to the south east of Sri Lanka where she grew up and lived for 27 years.

The appellant may not agree with the Tribunal’s findings but it clearly did not fail to have regard to the contentions concerning extortion.  The application for leave to amend the notice of appeal should be refused.  Since the proposed new grounds are without substance, there would be no utility in granting leave to include them.

requirements of sECTIONS 424a, 424b and 441a

34                  The questions raised by grounds 1 and 2 involve the operation of ss 424A, 424B and 441A.  Those sections relevantly provide as follows:

“424AApplicant must be given certain information

(1)        …the Tribunal must:

(a)        give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)        ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.

(2)        The invitation must be given to the applicant by one of the methods specified in section 441A.  However, this subsection does not apply if the applicant is in immigration detention.

(3)        This section does not apply to information:

(a)        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;

………………………

424B    Invitation to give additional information or comment

(1)        If a person is:

………………………

(b)        invited under section 424A to comment on information;

the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2)        If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3)        If the invitation is to give information or comments at an interview, the interview is to take place:

(a)        at the place specified in the invitation; and

(b)        at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

………………………

441A    Methods of dispatch of certain documents

(1)        A document specified in subsection (3) is taken to be duly given to an applicant for review if:

(a)        the document is sent (physically, electronically or otherwise) to:

(i)         the last address for service provided by the applicant in connection with his or her application for review; or

(ii)        the last residential address provided by the applicant in connection with his or her application for review; and

(b)        the Tribunal has a receipt or other evidence indicating the date of dispatch.

(2)        A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:

(a)        by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or

(b)        by leaving it at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.

(3)        The documents specified for the purposes of subsections (1) and (2) are:

………………………

(b)        an invitation under section 424A (other than an invitation to an applicant who is in immigration detention); and

………………………”

35                  Section 424A(1) requires three things of the Tribunal.  First, in some circumstances it must give particulars of certain information to an applicant.  Secondly, it must ensure that the applicant understands why that information is relevant to the Tribunal’s review.  Thirdly, the Tribunal must invite an applicant to comment on that information. 

36                  The giving of the information and the invitation to comment on it are quite separate and distinct requirements.  It is only the requirement to invite comment on the information that is regulated by s 424A(2).  That is to say, except where an applicant is in detention, the invitation to comment on the information must be given by one of the methods specified in s 441A.  Further, under s 424B, where a person is invited to comment, the invitation must specify the way in which the comments may be given.  If the invitation is to give comments otherwise than at an interview, the comments are to be given within a period specified in the invitation, being the prescribed period.

37                  In the course of the hearing in relation to the appellant’s review, the following exchange took place between the Tribunal member and the appellant, who answered through an interpreter:

“Tribunal:         Now, I asked your brother when your husband died.  He told me he couldn’t remember exactly but he thought it was about twenty years ago.  He told me that it was before you went to Saudi Arabia.  He told me that you then had your son looked after by a relative of your husband’s.  What would you like to say about that.

Appellant:         After the riots in ’77 we all went in various directions.  The family went in different directions.  I was in Vavuniya with my husband.  As he was a farmer, our family wouldn’t mix with him.

………………………

Tribunal:           Well, your brother who had a hearing today … he was originally a farmer as well?  What I want you to specifically comment on …  is… your brother says that your husband died twenty years ago before you went to Saudi Arabia.  Now, if that’s true then your story about what happened in 1995 isn’t true?

Appellant:         Well, he passed away in ’95. Five years ago.

Tribunal:           Do you have a death certificate?

Appellant:         … As he was killed inside the camp nothing was given.

Tribunal:           Who looked after your son when you were in Saudi Arabia?

Appellant:         His grandfather and grandmother.

Tribunal:           Why didn’t your husband look after him?

Appellant:         They were all in one place… nearby… near to each other.

Tribunal:           Where are the grandfather and grandmother now?

Appellant:         Only the grandmother is alive.  Two years ago grandfather passed away.

Tribunal:           And where is grandmother?

Appellant:         She is in Vavuniya.”

38                  After being questioned by the Tribunal at the appellant’s hearing, Mr Henry Knight was then asked some questions by Mr Fergus.  The following exchange occurred:

“Mr Fergus:     Well, this morning in the other hearing, Mr Knight, as a member has told you and told Mrs Paul said that he thought Mrs Paul’s husband died about twenty years ago and Mrs Knight said that he died about five years ago.

Mr Knight:       Yes, that’s right.

Mr Fergus:       Well, can you offer the member any explanation for why Mr and Mrs Knight had had such different recollections of an important event for the family.

Mr Knight:       Yes, John Knight get excited very soon.  I can tell you that… He is very religious man that get very excited for one small thing…

Mr Fergus:       Why would he as a religious man give, as I remember this morning, the Member a very clear answer and, no doubt, apparently in his mind, about Mr Paul dying nearly 20 years ago when you just told me he is a religious man.

Mr Knight:       Yeah! I don’t know why he said like that but she’s … my brothers wife, she’s alright but he’s, my brother he get excited and panic.

Mr Fergus:       So, what you are saying to the member now is that so far as Mr Paul’s death is concerned, Mrs Knight’s memory would be more reliable than her husband’s?

Mr Knight:       Yes.

Tribunal:           See… I have a bit of a problem… I have a problem with all of this evidence because Mr Knight not only said twenty years ago but he went on to give detail about Mrs Paul’s son being looked after by other people.  That, after her husband died, she went to work in Saudi Arabia.  He was quite specific that the husband died before she went to work in Saudi Arabia?

Mr Fergus:       That coincides with my notes as well, Member.”

39                  The following exchange then took place:

“Tribunal:         Mrs Paul … [n]ow, I am having a bit of difficulty in understanding why your brother would be so definite in his answer and it’s a very important point because if it is true, the rest of your story or a large part of your story isn’t.  So do you have anything of an independent nature that can establish for me when your husband died.

Appellant:         I cannot… I won’t be able to tell the date ….

Mr Fergus:       … I thought of getting other family members in to give evidence about what they know.  The problem with that from your point of view, I think, is that having regard to the course of the hearing anything that Mrs Knight’s father or mother or any of her siblings in Australia might say effectively is contaminated by the evidence given in the proceeding.  The only way I can think to try to resolve the impasse if you would be prepared to give me time to see whether, working with Mr Henry Knight, I might be able to obtain a death certificate from Sri Lanka?

Tribunal:           How long do you think it might take?

Mr Fergus:       I’ve frankly no idea. Mr Knight, can you suggest how long it might take us to try to find out whether we can get a death certificate for Mr Paul?

Mr Knight:       Yes, at the moment, in Vavuniya it’s a big problem going around.  He died in Vavuniya.  So at the moment its very very big problem.  People must be knowing what’s happening in Vavuniya.  People had asked to move.  According to this especially getting a report on the death certificate.  Died in hospital is different. …”

40                  Shortly thereafter, the following further exchange occurred:

“Mr Fergus:     Just one further thing… It may not resolve the issue but I think it will be desirable for Mrs Paul and Mr Knight both to give you an assurance that they will not discuss anything that happened here today with any member of the family and I mean any member of the family.

Tribunal:           Are you prepared to do that?

Appellant:         Yes.

………………………

Tribunal:           I don’t want you to go back and say to your brother ‘Why did you say that to the Tribunal’ because he answered me quite truthfully as far as he was concerned.

Mr Knight:       I don’t want to upset him any more.

………………………

Tribunal:           See, what I am concerned is… your husband died twenty years ago; you obtained a Sri Lankan passport in 1981 and you went to work overseas during the 1980s and most of the 1990s and that you virtually spent no time in Sri Lanka recently.  Would you like to comment on that.

Appellant:         No comment.

Tribunal:           Is that true?

Appellant:         No comment.

Tribunal:           What do you say Mrs Paul?

Appellant:         Well, in fact, I applied and got it in ‘81, but it was in ‘90 that I went.”

41                  At the end of the hearing, the Tribunal said the following:

“Well the way I see it at the moment, Mrs Paul, is that you like many people in Sri Lanka would have a difficulty there because of the war that is going on but that’s something that’s common to everyone.  Your case, at the moment, I think, is a bit weak and I don’t think it gets you into the definition of a “refugee”.  So what we are going to do is … adjourn … finalise this hearing.  It might be that we have another hearing in the future.  I am doing that because, at the moment, I am not satisfied that you fall within the definition of a “refugee”.  So what I am going to do is finalise today’s hearing but I won’t write any decision until I receive submissions from your adviser and I will give him until the first week of February for receipt of any submissions.  If you can think of any way to try and establish when your husband died and the circumstances of his death … that would be of great assistance.  OK, are you clear on that?”

The appellant responded “Yes”.

42                  The primary judge, in dealing with the application of s 424A, concluded that the acceptance by the Tribunal of John Knight’s testimony as to the time of the death of the appellant’s husband was “clearly enough” part of the reason for the Tribunal’s ultimate affirmation of the decision of the Minister’s delegate.  His Honour inferred that the Tribunal would have perceived, by the close of the hearing on 23 November 1999, that such might well be the case.  His Honour considered, therefore, that the need for the Tribunal to comply with s 424A(1)(a) “could realistically be said to have crystallised” by that time.

43                  It may not be accurate to refer to the need to comply with s 424A as “crystallising” at any particular time.  Rather, the effect of s 424A(1) is that the Tribunal must not affirm a decision under review, where particular information is the reason or a part of the reason for doing so, unless the Tribunal has first complied with s 424A(1) in relation to that information.  It is conceivable that the Tribunal might form the view that it will affirm the decision under review for a particular reason but, before actually making the decision, change its mind.  Thus, there is no point in time at which a need to comply with the section “crystallises”.  Rather, there is simply a prohibition on affirming a decision unless s 424A has first been complied with.

have the requirements of section 424a(1) been satisfied?

44                  The first question to be considered is what constitutes the reason for a decision.  On one view, Mr John Knight’s testimony as to how he was able to recall the date of the death of the appellant’s husband is the reason, or a part of the reason, for affirming the decision.  That is to say, the evidence that he was able to relate the date of the death of the appellant’s husband to other events, including the fact that his wife’s brother had been killed in 1986, is the reason or part of the reason for the decision.

45                  I do not accept that view.  I consider that the question must be considered by reference to what is required by s 430 of the Act.  That provision does not require the reasons for assessment of credibility to be furnished to an applicant – see Durairajasingham v Minister for Immigration & Multicultural Affairs [2000] HCA 1 at par [67]; 168 ALR at 407. It would have been open to the Tribunal to give no details of the reasoning that led to its acceptance of John Knight as a credible witness.

46                  Section 424A(1)(a) refers to giving “particulars”, rather than “information”.  It certainly does not suggest that the detailed reasoning process that the Tribunal intends to adopt be given to an applicant. The explanation given by the Tribunal as to why it regarded John Knight as credible was not part of the reason for its decision within the meaning of s 424A(1)(a). I consider that, for the purposes of s 424A(1)(a), given the requirements of s 430 as explained in Durairajasingham, the Tribunal was bound to give the appellant no more than the following particulars:

·        the fact John Knight said that the death of the appellant’s husband had occurred “about 20 years ago”; and

·        the fact that the Tribunal regarded John Knight as credible.

47                  The question is whether the Tribunal furnished the above particulars to the appellant.  Section 424A(1)(a) confers a discretion on the Tribunal to give the particulars “in the way [it] considers appropriate”.  It did so orally, in the course of the hearing on 23 November 1999 – see paragraphs [33] to [37] above.  Thus the Tribunal satisfied the requirements of s 424A(1)(a).  Further, those paragraphs demonstrate that the Tribunal also satisfied the requirements of s 424A(1)(b).

48                  The next question is whether the Tribunal satisfied the requirements of s 424A(1)(c).  The extracts of the transcript set out at paragraphs [33] – [37] show that the Tribunal did invite the appellant repeatedly to comment on the questions of the date of her husband’s death and its view of Mr John Knight’s credibility.  However, s 424A(2) requires that the invitation be given to the applicant by one of methods specified in s 441A.  Those invitations do not satisfy the requirements of s 441A, which requires that an invitation must be given in the form of a “document” which is “sent”. 

49                  Following the hearing, the Tribunal contacted Mr Fergus on 17 January 2000 to inquire whether any further information was available.  Receiving no response, the Tribunal wrote to Mr Fergus on 13 March 2000 saying, inter alia, the following: 

“I refer to the hearing of this application on 23 November 1999.  At the hearing the Tribunal member reviewing your client’s application gave until the first week of February 2000 for enquiries to be made from Sri Lanka in relation to a death certificate of the applicant’s husband, or any other evidence which could indicate when he died.  No information has yet been supplied to the Tribunal.  Please advise.

At the hearing of the matter the Tribunal also raised the possibility of another hearing.  However, unless specific issues can be identified by you which may require a further hearing, the Tribunal proposes to conclude evidence in the matter by way of written submission from you.  If you wish to comment on this please advise.  The Tribunal has requested that you provide a response in relation to this matter within 14 days of the date of this letter.”

50                  The letter of 13 March 2000 was sent to Mr Fergus at his professional address.  In that regard, the giving of the letter, in so far as it is an invitation pursuant to s 424A(1)(c), was given as specified in s 441A(1)(a)(i) to the appellant’s address for service.  However, in so far as it required a response within 14 days of the date of the letter, it did not satisfy the requirements of r 4.35, made under s 424B(2), in that the prescribed period is 14 days from receipt of the invitation to comment, rather than from the date of the letter. As such, the letter, which must be construed as the invitation, does not satisfy the mandatory requirements of s 424A, a procedure required by the Act.  As a result, the Tribunal failed to observe a procedure required to be observed.  A ground of review under s 476(1)(a) of the Act is therefore established.  However, it does not necessarily follow that the Court should interfere with the decision of the Tribunal. 

the court’s discretion under section 481(1)

51                  Section 481(1) (a) of the Act provides that, on an application for review of a decision of the Tribunal, the Court may, in its discretion, make, inter alia, an order affirming, quashing or setting aside the decision.  In this case, no prejudice was advanced as having flowed from the failure to observe the above provisions. In any event, Mr Fergus replied to the Tribunal by letter dated 24 March 2000.  In that letter Mr Fergus acknowledged that he had been allowed time to try to establish the time when the appellant’s husband was killed by the security forces in Sri Lanka. 

52                  The letter observed that the need for such evidence arose out of the testimony, given by Mr John Knight, that the appellant’s husband had been killed about 20 years before.  Mr Fergus submitted that the Tribunal should find that Mr Knight was mistaken, since his testimony was inconsistent with the consistent testimony of the appellant, Mrs Princey Knight and Mr Henry Knight.  Mr Fergus submitted that the Tribunal should give most weight to the testimony of Mrs Princey Knight.  Mrs Princey Knight testified as to the date of the appellant’s husband’s death in her own application and, at the time of giving evidence, the question of the date of the appellant’s husband’s death was not a question that she would have foreseen the Tribunal putting to her.  There was no reason therefore, so it was said, why she would have colluded with the appellant or Mr Henry Knight to give consistent, but false, testimony about the matter.

53                  The letter of 13 March 2000 went on to say that Mr Fergus had pressed his clients to try to find the documentary evidence contemporaneous with the death of the appellant’s husband that might corroborate the testimony that he was killed between about July and September 1995 by the security forces in Vavuniya.  It said that none of the family had been able to obtain any documentary evidence contemporaneous with his death.  The letter also enclosed a letter, dated 23 February 2000, from Mrs Rosabelle Knight, the mother of the appellant, saying that she had received a telephone call in October 1995 from her daughter, the appellant, saying that her husband was killed between July and September 1995.  It is apparent that the Tribunal did not accept the submissions made in the letter. 

54                  In circumstances where Mr Fergus was present during the appellant’s hearing and was aware of the evidence that had been given by his other client earlier on that day, it would be unrealistic to conclude that the Tribunal had not given to the appellant ample opportunity to comment on the information that it considered would be the reason or a part of the reason for affirming the delegate’s decision.  While there was no express invitation in the letter of 13 March 2000, it is clear that Mrs Paul understood that she was being permitted to make further submissions, in the context of the Tribunal’s concern about the date of the death of her husband. The Court should exercise its discretion under s 481(1) of the Act to affirm the Tribunal’s decision. 

CONCLUSION

55                  The appeal should be dismissed with costs.

Associate:

Dated:              29 August 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

ALLSOP J

56                  This is an appeal from a decision of a judge of this court delivered on 19 March 2001 which dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) of 31 March 2000 which had affirmed a decision of the delegate of the respondent not to grant a protection visa to the appellant under the Migration Act 1958 (Cth) (the Act).

57                  There is an initial difficulty in this matter which should be stated at the outset, being a matter which was not addressed by the parties in argument.  The orders made by the primary judge on 19 March 2001 were that the application be dismissed and that the applicant pay the respondent’s costs of the proceedings.  In taking out the order it would appear that the solicitor for the respondent Minister mistyped the first order.  The first order, as entered, was that the application be allowed.  No doubt the slip rule applies, but this appears to be a matter to be dealt with by the primary judge.  The matter is before us by way of an appeal by the unsuccessful claimant for a protection visa.  The matter will hereafter be approached on the basis that there is a mistake in the orders as entered and that his Honour ordered that the application be dismissed.

58                  The appellant is a citizen of Sri Lanka.  She arrived in Australia on 8 December 1995.  On 27 February 1996 she lodged an application for a protection visa.  On 19 February 1998 that application was refused by a delegate of the Minister.  On 18 March 1998 the appellant lodged an application for review of that decision with the Tribunal.  The procedural conduct of that review is one subject matter of this appeal. 

59                  Before examining the grounds of appeal, including the application to further amend the notice of appeal, it is necessary to set out, in general terms, the nature of what were the appellant’s claims which founded her request for a protection visa.  Her claims related both to her personal circumstances in Sri Lanka and her situation as a Tamil in Sri Lanka.  The appellant lived in a rural area in Sri Lanka until her marriage in 1974 whereupon she moved with her husband to his farm about three miles from the central northern town of Vavuniya.  Their son was born in January 1975.  The appellant claimed that after race riots in 1983 in Sri Lanka her husband was forced to assist the Tamil Tigers and that he was victimised by the Sri Lankan army as a result.  The personal and financial security of the family became precarious and to alleviate matters the appellant obtained employment in Saudi Arabia in 1990.  The appellant claimed that she returned to Sri Lanka in December 1992 on holiday and that she was the victim of extortion perpetrated by both the Tamil Tigers and the Sri Lankan army.  The appellant claimed that in 1995, having returned to Saudi Arabia to work, she received a letter from her son to the effect that her husband had been abducted by the Sri Lankan army.  She claimed that she returned home as soon as she was able, to find that her husband had been murdered by the army and his body disposed off.  This was claimed by her to have occurred in 1995. 

60                  The appellant submitted that she had a well-founded fear of persecution for reasons of:

(a)       her race,

(b)      the political opinion that had been imputed to her by reason of her being a Tamil,

(c)       her relationship with her husband who was murdered by the army as a Tamil Tiger suspect, and

(d)      her membership of a particular social group, namely her husband’s family.

61                  It is evident that the claim by her of the death of her husband in 1995 at the hands of the Sri Lankan army was at the centre of her factual claim for protection in so far as it was based on her personal circumstances as opposed to her ethnicity.  That is common ground before us and was reflected in the fact that much of the hearing before the Tribunal was taken up with that subject matter.

62                  As it happened, the Tribunal, constituted by the same member, on the morning of the hearing of the appellant’s application heard the appellant’s brother’s application for a protection visa.  The appellant’s brother, Mr John Knight, was represented by the same practitioner who represented the appellant at the Tribunal in the afternoon of 23 November 1999.  In the hearing before the Tribunal in the morning of 23 November 1999, Mr John Knight had been asked when the appellant’s husband died.  His reply was, “about twenty years ago”, or words to that effect.  This, of course, was quite contrary to the evidence of the appellant that her husband had been killed by the Sri Lankan army in 1995.  The matter was taken up by the Tribunal at the hearing.  The following questions and answers record parts of the appellant’s hearing before the Tribunal.  Most were referred to by counsel on the appeal as the relevant passages of the transcript before the Tribunal.  No other passages of transcript were referred to by counsel as relevant.

[Questioning of the Appellant]

Q15 (member):      Now, are you aware that another member of your family had a Hearing today?

A (interpreter):      I am aware.

Q16 (member):      Your brother?

A (interpreter):      My brother.

Q17 (member):      Now, I asked your brother when your husband died.  He told me he couldn’t remember exactly but he thought it was about twenty years ago.  He told me that …it was before you went to Saudi Arabia.  He told me that you then had your son looked after by a relative of your husband’s.  What would you like to say about that?

A (interpreter):      After the riots in ’77, we all went in various directions.   The family went in different directions.  I was in Vavuniya with my husband.  As he was farmer, our family wouldn’t mix with him.

Q18 (member):      Why not?

A (interpreter):      Well, everyone…every other person was well off but he.. although was in Dugetit (unclear) didn’t have a good job.

Q19 (member):      Well, your brother who had a Hearing today…he was originally a farmer as well?  What I want you to specifically comment on is…your…your brother says that your husband died twenty years ago before you went to Saudi Arabia.  Now, if that’s true then your story about what happened in 1995 isn’t true?

A (interpreter):      Well, he passed away in ’95.  Five years ago.

Q20 (member):      Do you have a Death Certificate?

A (interpreter):      Is there… in the Police.  As he was killed inside the camp nothing was given.

[Questioning by the Tribunal of another brother Mr Henry Knight]

Q101 (member):    Did your sister’s husband actually die about twenty years ago?  Did your sister’s husband really die about twenty years ago?

A Mr Knight:         Ah, not really.  No.

Q102 (member):    Your other brother who had a Hearing today told me that he died twenty years ago.

A Mr Knight:         It’s/must be (unclear) a mistake for sure.  Because I’m sure she know and we know when he died.

[Questioning by the appellant’s solicitor of Mr Henry Knight]

Q113 Mr Fergus    Well this morning in the other Hearing, Mr Knight, as the Member has told you and told Mrs Paul, said that he thought Mrs Paul’s husband died about twenty years ago and Mrs Knight said that she [sic. he] died about five years ago?

A Mr Knight:         Yes. That’s right

Q114 Mr Fergus:  Well, can you offer the Member any explanation for why Mr and Mrs Knight would have such different recollections of an important event for the family.

A Mr Knight:         Yes.  John Knight get excited very soon.  I can tell you that.  I can’t tell anything because I know he’s very, very…he’s very religious man that get very excited for one small thing.  If he had a accident…he want sleep for two night…I can tell you that…even a small accident…he gets excited.

Q 115 Mr Fergus   Why would he as a religious man give…as I remember this morning…the Member a very clear answer and, no doubt, apparently, in his mind, about Mr Paul dying nearly twenty years ago when you just told me he’s a religious man.

A Mr Knight          Yeah!  I don’t know why he said like that but she’s…my brother’s wife…she’s all right but he’s…my brother he get excited and panic.

Q116 Mr Fergus    So, what your saying to the Member now is that so far as Mr. Paul’s death is concerned, Mrs Knight’s memory would be more reliable than her husbands?

A Mr Knight          Yes.

Q117 (member):    See…I have a bit of a problem…I have a problem with all of this evidence because Mr Knight not only said twenty years ago but he went on to give detail about Mrs. Paul’s son being looked after by other people.  That, after…after her husband died, she went to work in Saudi Arabia.  He was quite specific that the husband died before she went to work in Saudi Arabia?

Mr Fergus             That coincides with…with my note as well, Member.

A Mr Knight:         Yeah!

Q118 (member):    Do you have…Mrs. Paul… do you have… do you have any evidence of when your husband died?  See, this is my concern…

[The appellant left the hearing room briefly.]

[Further questioning of the appellant and Mr Henry Knight]

Q120 (member):    Come in and have a seat, Mrs Paul.  Now, I’m having a bit of difficulty in understanding um why your…your other brother would be so definite in his answer and it’s a … it’s a very important point because if it is true, the rest of your story or a large part of your story isn’t.   So do you have anything other than ah… or anything of an independent nature that can establish for me when your husband died?

A (interpreter):      I cannot…I won’t be able to tell the date and already days/or any days (unclear).

Advisor:                 Mr Keher, I thought of getting other family members in to give evidence about what they know.  The problem with that from your point of view, I think, is that having regard to the course of the Hearing anything, that Mrs Knight’s father or mother or any of the other.. or any of her siblings in Australia might say effectively is contaminated by the evidence given in the proceedings.  The only way I can think to resolve… or to or try to resolve the impasse is if you would be prepared to give me time to see whether working with Mr Henry Knight, I might be able to obtain a Death Certificate from Sri Lanka?

Q122 (member):    How long do you think it might take?

A (Advisor):           I’ve frankly no idea.  Mr Knight, can you suggest how long it might take us to try to find out whether we can get a Death Certificate for Mr Paul.

A (Mr Knight):      Yes, at the moment, in Vavuniya.  it’s a big problem going round.  So what…he died in Vavuniya.  So, at the moment, it’s very, very big problem.  People must be knowing that what’s happening in Vavuniya.  People had asked to move.  According to this especially getting a report on the Death Certificate.  Died in hospital is different.  You don’t know what they have done and no matter…army person is going to come forward and tell, “I killed him” or “He died in front of me”.  Nobody’s going to tell that.  So, how are we going to get Death Certificate?  Tamil person won’t come forward and tell that.  They know he got killed because they are that much scared.  It they tell and if they find out what this fellow did (unclear – coughing),,, they would be dis.. (unclear background noise).

…

Q127 (member)     Yeah, but, you see.  I don’t want…I don’t want you to go back and say to your brother, “Why did you say that to the Tribunal”?  Because he answered me quite truthfully as far as he was concerned.

A. (Mr Knight)       I don’t want to upset him anymore.

…

Q133 (member):    See, what I’m concerned is… your husband died twenty years ago; you went… you obtained a Sri Lankan Passport in 1981 and that you went to work overseas during the 1980’s and most of the 1990s and that you virtually spent no time in Sri Lanka recently.  Would you like to comment on that?

A (interpreter):      No comment.

Q134 (member):    Is that true?

A (interpreter):      No comment.

Q135 (member):    What do you say, Mrs Paul?

A (interpreter):      Well, in fact, I applied and got it in ’81 but it was in ’90 that I went.

Q136 (member):    Is there anything else that you would like to tell me, Mrs Paul, about what you say has happened to you in Sri Lanka?

A (interpreter):      Well, it is virtually impossible for me to return and live there.

…

Q148(member):     I don’t have any more questions for you, Mrs. Paul.  Mr. Fergus, is there anything you want to ask or clarify relevant to the matter?

A (Advisor):           Well, I can’t see any power in the Tribunal…any express power in the Tribunal to make a direction to um Mr. ah…Mrs Paul and Mr. Knight, Member.  Um.

Q149 (member):    I suppose all I can do is say to both of you that your brother gave some evidence today in his Hearing which, I think, he gave quite honestly and thinking that what he was telling was the truth and I wouldn’t want the repercussion of that to be that there be some sort of family dispute over it.

                              But, that’s something that you’re going to have to work out.  Now, do you want some time to try and…

A (Advisor):           I think so because if what Mrs. Paul and Mr. Henry Knight have told you and what Mrs. Princey Knight said in about the same sort of language is correct ah we have I would submit, evidence that Mr. Paul was murdered by soldiers at about the time that Mrs Paul left to come to Australia.  She was clearly trying to attempt to get her son and herself out but was frustrated in that because of the refusal…Visa refusal for her son.

63                  Towards the conclusion of the hearing the Tribunal indicated to the appellant and her adviser that the Tribunal would delay the preparation of the decision until early February 2000 to enable further submissions.  It is perhaps important to set this exchange out in full.

Q151 (member):    Well, the way I see it, at the moment, Mrs Paul, is that you like many people in Sri Lanka would have a difficulty there because of the war that’s going on but that’s something that’s common to everyone.  Your case, at the moment, I think, is a bit weak and I don’t think it gets you into the definition of a “Refugee”.  So, what… what we’re going to do is adjourn the… I’ll finalise this Hearing.  It might be we have another Hearing, in the future.  I’m doing that because, at the moment, I’m not satisfied that you fall.. you fall within the definition of a “Refugee”.  So, what I’m going to do is um I’ll finalise today’s Hearing  but I’ll… I won’t write any Decision until I receive submissions from your Advisor and I’ll give until the first week of February for receipt of any submissions.  If you can think of any way to try and establish when your husband died and the circumstances of his death… that would be of great assistance!  OK.  Are we clear on that?

A (interpreter):      Yes.

Q152(member):     Now, would you like to ask me anything, Mrs Paul, before the Hearing finishes today”

A (interpreter):      No response.

Q153 (member):    You don’t have to if you don’t want to.

A (interpreter):      No

Q154 (member):    No? OK.  Look, I’ll give you your Passport back.  What I’m going to do now is get a Hearing Officer in to finalise the Hearing. …Could I have a Hearing Officer please” Yes, please!)  Thank you everyone for today.  I realise that these Hearings are difficult and what I’ve done, Mrs Paul, is um I hope I structured it to give you the best opportunity possible to try and establish what your Claims are.  What your Advisor is going to do is try and get some evidence to clearly indicate some matters.  I’ll be making some enquiries as well with the Department in relation to your son’s Visa Application and I’ll also be obtaining this other file; I don’t know what it is but it may have some information on it that can assist you.  Now, your brother’s evidence that he gave earlier today isn’t fatal to your Claim but it is something that having heard it, I cannot discount it straight away.  So, what we have to try and do is see if there’s something else… some other way that we can approach it to see if there’s some other evidence that might assist you.  OK! Thank you everyone for both.

64                  By 13 March 2000 no further submission had been received by the Tribunal and on this date the Tribunal sent a letter by registered post to the applicant’s solicitor (Mr Fergus) (who had been in attendance at the appellant’s hearing as the “advisor” of the appellant and at Mr John Knight’s hearing in the morning).  The letter was in the following terms:

Re: Mrs. Esther Christobelle Paul.

Application for a Protection Visa.

I refer to the hearing of this application on 23 November 1999.  At the hearing the Tribunal Member reviewing your client’s application gave until the first week of February 2000 for inquiries to be made from Sri Lanka in relation to a death certificate of the applicant’s husband, or any other evidence which could indicate when he died.  No information has as yet been supplied to the Tribunal.  Please advise.

At the hearing of the matter the Tribunal also raised the possibility of another hearing.  However, unless specific issues can be identified by you which may require a further hearing, the Tribunal proposes to conclude evidence in the matter by way of written submission from you.  If you wish to comment on this please advise.

The Tribunal has requested that your provide a response in relation to this matter within 14 days of the date of this letter.

Yours sincerely

65                  On 24 March 2000 the solicitor for the appellant sent a submission to the Tribunal in the following terms:

RE:  MRS ESTHER CHRISTOBELLE PAUL:  APPLICANT FOR REVIEW

At the hearing by the Tribunal on 23 November 1999, the Presiding Member allowed me time to try to establish the time when Mrs Paul’s husband was killed by the security forces in Sri Lanka.  I regret the delay in providing the further evidence.

2.  The need for this evidence arose out of testimony given by the applicant’s brother, Mr John Knight, in his own case, that Mrs Paul’s husband had been killed about 20 years before.  I submit that the Tribunal should find that Mr Knight was mistaken when he gave this testimony.  His testimony is inconsistent with the consistent testimony of the applicant, her sister-in-law, Mrs Princy Knight (Mr John Knight’s wife) and her brother, Mr Henry Knight.  All of them testified to the effect that the security forces in Vavuniya killed Mr Paul in about the third quarter of 1995.

3.  I submit that the Tribunal – if it has any doubts about the credibility of the applicant’s testimony – should give most weight to the testimony of Mrs Princy Knight.  Mrs Knight testified to the date of Mr Paul’s death in her own application to the Tribunal.  The question about the date of his death was not a question that she would have foreseen the Tribunal putting to her.  Therefore, there is no reason why she would have colluded with the applicant or Mr Henry Knight to give consistent but false testimony about the matter.

4.  Furthermore, if the applicant, Mrs Princy Knight and Mr Henry Knight had sufficient foresight to collude to provide false testimony to the Tribunal, they must have foreseen that Mr John Knight might be questioned about the same matter.  I submit that there was nothing in the way Mr John Knight testified to suggest that he decided to tell the truth despite a previously concocted plan.  His demeanour, when responding to the Tribunal’s question about when Mr Paul died, was one of mystification that he should be asked a question that saw as entirely irrelevant to his own case.

5.  Since the hearing I have pressed my clients to try to find documentary evidence contemporaneous with Mr Paul’s death that might corroborate the testimony that he was killed between about July and September 1995 by the security forces in Vavuniya.  None of the family has been able to obtain any documentary evidence contemporaneous with Mr Paul’s death.  They point out that since the security forces killed him, there will be no official records, such as a death certificate.  The[y] have been unable to locate any other documentary evidence such as newspaper reports.  However, all members of the family instruct me that they recall his being killed between July and September 1995.  Some of them add that their mother, Mrs Rosabelle Knight told them in about October 1995.  Enclosed is a letter from Mrs Rosabelle Knight setting out how and when she learned of her son-in-law’s death.

6.  For these reasons, I submit that the Tribunal should find that her testimony together with that of Mrs Paul and Mr Henry Knight establishes that Mr Paul was killed between about July and September 1995 by the security forces in Vavuniya.

7.  I have addressed the other issues in this matter in my submission of 19 September 1999.  I refer the Tribunal to those submissions.

66                  The enclosed letter from Ms Rosabelle K Knight was a handwritten document dated 23 February 2000 in the following terms:

To whom it may concern

This is to inform you that I received a telephone call in October 1995 from my daughter Esther C N Paul, saying that her husband George Paul was killed and the body was burnt by the Sri Lankan Army in between July – September 1995.

Thank you

Rosabelle Knight

67                  Having received this submission, the Tribunal then proceeded to make a decision, which it handed down on 31 March 2000.  The findings and reasons of the Tribunal commenced with the central factual matter about the appellant’s claim that her husband was killed by the army in 1995.  The Tribunal found that the husband of the appellant was not killed in 1995, but it accepted the evidence of Mr John Knight that the death of the husband occurred in about 1980.  Given the centrality of this finding and its position in the appeal I set out in extenso the relevant passage of the Tribunal:

The applicant’s evidence and the evidence of others, in particular her brother Henry and sister-in-law Princy cause concern for the Tribunal.  As is obvious from the details above relating to the evidence given by the applicant and her family at hearing, there is a discrepancy as to when the applicant’s husband died, there is also a general vagueness as to the bothers’ and sister-in-law’s evidence and what they know of the applicant and her history in Sri Lanka. On the one hand the applicant and most of her family whose evidence was considered by the Tribunal say that her husband died at the hands of the army in 1995.   One brother, John, however gave evidence that this in fact occurred [in] about 1980.  I have carefully considered all of the evidence relating to this issue and I accept the evidence of the applicant’s brother Mr John Knight as being true.  I accept his statement that he didn’t know much and it was only rumoured that the applicant’s husband had been killed by the army, and also that many of their relatives had died.  I accept his evidence as he was able to relate the date of the death to other events.  He gave this evidence in an unprompted manner and was quite specific.  He said that his wife’s brother had been killed in 1986 and that the applicant’s husband died before that event.  He said that he thought that his sister’s husband died “about twenty years ago”.  He recalled that after the husband died his sister travelled to Saudi Arabia to work.  He said that his sister’s son was young at the time and lived with relatives of her husband while she was in Saudi Arabia, though he could not remember exactly who cared for him.  He was asked several times if he was sure of what he was saying and said that he was.  This recollection also coincides with the applicant having first obtained a passport in 1981 – as revealed by her current passport.  The applicant said she obtained this in 1981 just in case she needed one.  I do not accept her reasons for obtaining this at that time.  The applicant on her evidence was working cultivating land and had a five year old son in 1980 or 1981, I do not accept that someone in Sri Lanka in that situation would obtain a passport unless they had a good reason to do so.  The obtaining of passport would have required her to spend money and time in obtaining one.  Having considered all of the evidence I find that the applicant’s husband died [in] about 1980.  I find that she obtained a passport in 1981 and that the applicant worked in Saudi Arabia from about 1981 until 1995.  I find that the applicant and some members of her family were not credible witnesses.  In particular I find that Mrs. Princy Knight, Mr. Henry Knight and Mrs Rosabelle K. Knight were not credible witnesses in the evidence they gave to the Tribunal in relation to these matters.  I can understand why they would seek to assist the applicant with her claims, and would wish her to remain in Australia, her husband is dead, she is distanced from her son and most of the family is in Australia.  [emboldening added]

68                  The Tribunal then went on to express serious doubts as to other claims of the applicant concerning extortion and the conduct of the Tamil Tigers.

69                  As I have referred to above, the claims of the appellant also extended to her Tamil ethnicity including political opinion which might be imputed to her by reason of that Tamil ethnicity.  In this context the Tribunal also said the following:

The applicant’s adviser makes a claim that she has a fear in return [sic] to Sri Lanka in that she is a Tamil.  I do not accept that Tamils, just because they are Tamil, face problems in Sri Lanka.  I accept that she may not want to return to Sri Lanka because of the civil conflict and terrorist activities occurring there.

The situation in Sri Lanka is complex and difficult to understand.  There have been large numbers of deaths reported over many years, many of them in horrible circumstances.  There is difficulty in accurately understanding who is responsible for many of the deaths.  There is sufficient country information available to indicate government agencies – the police and army are responsible for many of the deaths and disappearances that have taken place.  The government has taken steps in order to stop human rights abuses.  The war continues.

I accept that the applicant has a general fear of harm as a result of the civil conflict in Sri Lanka, this however is not sufficient to bring her within the Convention definition.  Whilst I appreciate that she may not feel safe, it is apparent that the ongoing problems there affect the whole country and most would no doubt have such a fear, Sinhalese and Tamils.

The country information shows that the applicant like virtually anyone in Sri Lanka is exposed to the risk of becoming a victim of random violence in a civil conflict situation.  In Abdalla v MIMA, 1999 51 ALD 11, the Full Federal Court commented that the fact that a recurring pattern of violence can be described in some way such as civil war or communal violence does not mean it cannot amount to persecution within the meaning of the Convention. The Tribunal notes that the conflict in Sri Lanka is a combination of a racial and political dispute.  Being harmed as a “bystander” or “on the sidelines” is “not sufficient” as discussed by the Full Court in MIMA v Adbi, 1999, FCA 299.  The court in that case stated “the evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm”.  In the applicant’s circumstances I do not accept that she is subject to anything other than the situation of generalised violence in Sri Lanka – something which everyone is unfortunately caught up in.  In considering the applicant’s circumstances and her accepted evidence and findings above, and the independent evidence I do not accept that she has a profile which results in her being of any interest, adverse or otherwise, to the authorities, or to anyone else.  She is a middle aged woman who on the accepted evidence has not been of adverse interest to anyone.  She has in recent years mostly lived outside of Sri Lanka.  She has returned occasionally for holidays.  She has worked as teacher of Tamil in an area south of Colombo near where she was born, some of her sisters still live in the area.  She has been in Colombo, thought not for significant periods.  Many hundreds of thousands of Tamils live in Colombo, there are Tamil groups who are supportive of the government and openly anti-LTTE and their desire for a separate state.  I do not accept that being a Tamil of itself results in adverse interest.  I do not accept that the accepted evidence discloses a Convention connection between her fear of being caught up as a “bystander” or “on the sidelines” and the risk of harm.

Overall, I find that the applicant does not have a well-founded fear of persecution for reasons of a Convention ground.

[emboldening added]

70                  The above paragraphs of the decision set out in paragraph [69] above are important because of the ground of appeal which is sought to be raised in the further amended notice of appeal which is said to be based on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  I will return to this in a moment.

71                  After the passages referred to in paragraph [69*] above, the Tribunal returned to the question of the date of the husband’s death and its relevance to the resolution of the claim.  The Tribunal said the following:

Even if I had accepted the applicant’s evidence as to her husband’s death in 1995 and the rumour (I would not accept it as being greater than that) that it was at the hands of the army, and that she had money extorted from her by the LTTE and gave her land to the LTTE by way of a transfer (I would not accept that she would have put a false signature, nor that if she did anyone would be aware of it) I consider that she would not fall within the Convention definition of a refugee, in that her fear of harm is not well founded.  There is no suggestion nor evidence to support any inference that the authorities in Sri Lanka suspect the applicant of anything, there is no reason to suspect they would harm her.  If they were interested in her they had an opportunity whilst she was there and nothing happened. Even if the LTTE may seek to extort money from her in the Vavuniya area, their motivation is that they perceive she has money because of her overseas connections and work.  She can avoid this by residing in the south.  This is not relocation as such as she has lived there before.  She has hardly lived in Sri Lanka in recent years, but she was born in and lived for the first 27 years of her live in the south east area outside of Colombo.  Her father was born outside of Kandy.  Some of her sisters live south of Colombo.  I find that the applicant could avoid harm by residing in the south, and that it is reasonable in all of the circumstances for her to do so.

72                  The amended notice of appeal which has been filed contains three grounds, which are as follows:

1.        His Honour erred in his interpretation of section 424A of the Migration Act.

Particulars

a.      Error in finding an inconsistency in between sub sections (1) and (2) of s 424A of the Migration Act.

b.      Error in finding that sub section (2) of section 424A Migration Act be read “as though the opening words thereof comprise “Subject to sub-section (1) and paragraph (a) thereof in particular…”.

2.        His Honour erred in his interpretation of the procedural requirements of section 424A of the Migration Act, in that he failed to find that strict procedural compliance is necessary in relation to sections 424A, 424B and 441A of the Migration Act.

3.        His Honour erred in holding that the Refugee Review Tribunal did comply with paragraphs 430(1)(c) and 430(1)(d) of the Migration Act.

73                  As I indicated above, a further amended notice of appeal has been sought to be filed.  In that further amended notice of appeal ground 3 is abandoned in the light of Yusuf, supra.  However, the further amended notice of appeal seeks to add two further grounds which are in the following terms:

3A.  His Honour erred in failing to find that the Refugee Review Tribunal had failed to take into account relevant considerations, being the information and evidence before it to the effect that Tamil civilians in Sri Lanka face persecution for reason of their race.

4.        His Honour erred in failing to find that the Tribunal erred in its failure to consider a relevant consideration being whether the harm the appellant may encounter in the context of the conflict in Sri Lanka may have a dual motivation.

74                  The respondent opposed leave being granted to the appellant to raise matters contained within paragraphs 3A and 4.  No prejudice was identified beyond the question of costs.  It is said, in my view quite correctly, that the law prior to Yusuf did not apparently deny the possibilities of these arguments.  However, I think it also fair to say that the High Court’s decision in Yusuf has thrown into clearer relief the availability of arguments based on the taking into account of irrelevant considerations and the failure to take account of relevant considerations in the context of jurisdictional error as reflected in paras 476(1)(b) and (c) of the Act.  In circumstances where there is no prejudice and where a not dissimilar argument was in fact agitated before the primary judge based upon s 430 of the Act, my view is that leave should be granted to file the further amended notice of appeal.

75                  On this basis, the appeal grounds can be divided into alleged errors of procedure being a failure to follow the strictures of ss 424A, 424B and 441A and an alleged failure to take into account relevant considerations.  I will deal with the latter first.

Alleged Failure To Take into Account Relevant Considerations.

76                  The relevant consideration said not to have been taken into account is some information and evidence put before the Tribunal.  A letter of the appellant’s solicitor of 19 November 1999 sets out a body of factual information and submissions concerning evidence of danger to Tamils in Sri Lanka by reason of their ethnicity and about extortion which is said to occur to Tamils by reason of that ethnicity.  It is plain that the Tribunal was cognisant of that letter and its contents.  At page 6 of the decision it said:

The applicant’s adviser’s [sic] submitted a letter to the Tribunal on 19 November 1999.  It repeats the applicant’s prior claims.

77                  Later in the reasons, having dealt with country information quite extensively, the Tribunal deals with the issue of the appellant’s fear of return to Sri Lanka based on her Tamil ethnicity.  This is dealt with, albeit briefly, in the paragraph emboldened in paragraph [69] above and in the succeeding paragraphs in the decision as set out in that paragraph.  The emboldened portion of those paragraphs makes it plain to me that the subject matter or element of the claim based on her Tamil ethnicity was dealt with.  Equally, the first sentence of the emboldened paragraph set out in paragraph [69] above makes it plain that the Tribunal was referring to the letter of 19 November 1999.  In this light, it simply cannot be gainsaid that the Tribunal dealt with the issue of fear of persecution based on the Tamil ethnicity of the appellant.  Equally, I cannot accept the proposition sought to be made under paragraph 4 of the further amended notice of appeal that there was a failure to identify relevant Convention reasons out of conduct said to be dually motivated.  The paragraphs of the Tribunal’s reasons set out in paragraph [69] above, especially the emboldened paragraph, make it plain, especially in the context of the letter of 19 November 1999, that the Tribunal is dealing with the Convention-based claim of feared harm based on Tamil ethnicity.

78                  Once it is accepted that the Tribunal dealt with the subject matter or element of the claim, it becomes apparent that the real complaint of the appellant must be that the Tribunal failed to expressly deal with the evidence referred to in the letter of 19 November 1999 and should have, somehow, preferred that material to the countervailing evidence (which it was accepted existed) which supported or tended towards the position adopted by the Tribunal in the emboldened paragraph referred to in paragraph [69] above.  Thus expressed, it becomes plain that it cannot be a question of the failure to take into account a consideration made compulsorily relevant by the Act or regulations: see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 and Yusuf, supra.

79                  Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 and Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.  It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with.  In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed.  However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.

80                  In these circumstances, I am of the view that the grounds set out in paragraphs 3A and 4 of the further amended notice of appeal are not made out. 

81                  In my view leave should be granted to the appellant to file a further amended notice of appeal, but, in respect of these matters, the appeal should be dismissed.

Alleged Procedural Defects

82                  I now turn to the question of the alleged procedural defects in the conduct of the hearing.  These procedural defects are based on assertions contained in grounds 1 and 2 of the amended notice of appeal to which I have referred in paragraph [72] above.  The arguments raise issues about the operation of ss 424A, 424B and 441A.

83                  Part 7 Division 4 of the Act prescribes various procedures to be followed in the conduct of review undertaken by the Tribunal of protection visa decisions.

84                  Part 7 contains ss 424A and 424B which are in the following terms:

S 424A Applicant must be given certain information

(1)      Subject to subsection (3), the Tribunal must:

          (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;  and

          (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review;  and

          (c) invite the applicant to comment on it.

(2)    The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.

(3)      This section does not apply to information:

          (a) 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; or

          (b) that the applicant gave for the purpose of the application; or

          (c) that is non-disclosable information.

S 424B Invitation to give additional information or comments

(1)     If a person is:

          (a) invited under section 424 to give additional information; or

          (b) invited under section 424A to comment on information;

         the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2)    If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a  reasonable period.

(3)   If the invitation is to give information or comments at an interview, the interview is to take place:

        (a) at the place specified in the invitation; and

        (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4)     If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5)      If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

       (a)   a later time within that period; or

       (b)   a time within that period as extended by the Tribunal for a prescribed further period;

       and then the response is to be made at an interview at the new time.

85                  Division 7 of Part 7 contains various miscellaneous provisions which include s441A which deals with the method of dispatch of certain documents and which is in the following terms:

S 441A

Methods of dispatch of certain documents

(1)     A document specified in subsection (3) is taken to be duly given to an applicant for review if:

          (a)   the document is sent (physically, electronically or otherwise) to:

                (i)  the last address for service provided by the applicant in connection with his or her application for review; or

               (ii) the last residential address provided by the applicant in connection with his or her application for review; and

 (b)    the Tribunal has a receipt or other evidence indicating the date of dispatch.

(2)    A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:

(a)    by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or

(b)    by leaving it at the applicant's place of residence with a person who appears to live there and appears to have turned 16.

(3)    The documents specified for the purposes of subsections (1) and (2) are:

(a)        an invitation to an applicant under section 424 (other than an invitation to an applicant who is in immigration detention); and

(b)        an invitation under section 424A ((other than an invitation to an applicant who is in immigration detention); and

(c)         a notice under section 425A (other than a notice to an applicant who is in immigration  detention); and

(d)        a notice under section 430A; and

(e)         a statement given under subsection 430B(6).  

(4)  It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.

(5)  A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.

86                  Sections 424A and 424B are mirrored by ss 57 and 58 of the Act which place similar obligations upon the Minister and his or her delegate in considering a visa and by ss 359A and 359B of the Act concerning the review by the Migration Review Tribunal of decisions of the Minister and his or her delegate.

87                  There was no issue raised about the information in question here being “non-disclosable information” as defined by s 5 of the Act.

88                  There are two elements to the procedural complaint: one substantive and one formal.  The substantive complaint is that appellant was not given particulars of relevant information for the purposes of para 424A(1)(a) and the relevance of that information was not conveyed to her for the purposes of para 424A(1)(b).  The particulars of information or information which were not provided can be seen in, or by reference to, the emboldened portion of the Tribunal’s reasons recited in paragraph [67] above.  As is seen from that passage the Tribunal accepted the evidence of Mr John Knight concerning the date of death of the appellant’s husband in preference to the evidence of the appellant, of Mr Henry Knight and of Mrs Princy Knight and said that his (Mr John Knight’s) evidence was acceptable “as he was able to relate the date of death to other events”, which “other events” included the date of death of his wife’s brother which he recalled to have been in 1986.  As can be seen from question 117 set out in paragraph [62] above the Tribunal orally gave to the appellant and her legal adviser particulars of the fact that Mr John Knight had given evidence that the appellant’s husband had died in the 1980s, of the fact that he (Mr John Knight) had gone on to give details about the appellant’s son being looked after by other people, of the fact that he (Mr John Knight) had given evidence that after her (the appellant’s) husband had died the appellant had gone to work in Saudi Arabia and of the fact that Mr John Knight was quite specific that the appellant’s husband had died before the appellant went to work in Saudi Arabia.  It should also be noted that the then solicitor for the appellant indicated that the information in question 117 coincided with his note of the evidence of Mr Knight from the morning’s hearing.  However, what is evident from all the exchanges referred to in paragraphs [62] and [63] above, and in particular question 117, is that the Tribunal did not say, specifically, that Mr John Knight had said, that he recalled that his wife’s brother had been killed in 1986 and that the appellant’s husband had died before that event; in other words, the Tribunal did not say that Mr John Knight had been able to relate the date of death of the appellant’s husband to his recollection of the date of death of his wife’s brother, that is he recalled his wife’s brother dying in about 1986 and the appellant’s husband dying before then.

89                  These matters last mentioned formed part of the critical reasoning of the Tribunal referred to in the emboldened passages in paragraph [67] above in resolving the conflict of testimony about a fact placed by the appellant at the centre of her claim.  It is common ground that these matters were not specifically identified to the appellant for the purposes of para 424A(1)(a) or para 424A(1)(b).  The question tendered for decision is whether they should have been.

90                  The appellant says that the reasons of the Tribunal set out in paragraph [67] above reveal that the factual matters, that is Mr John Knight’s ability to relate the death of the appellant’s husband to other events including his recollection of the date of the death of his wife’s brother and that the appellant’s husband had died before that event, were central to the acceptance of Mr John Knight’s evidence and the rejection of the appellant’s evidence and the evidence of Henry Knight and the appellant’s sister-in-law Princy Knight.  Thus, it is said, particulars of information were not disclosed nor was the relevance of the information made relevant.

91                  The appellant referred the Court to the Full Court decision of Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919.  In Al Shamry Merkel J referred to his reasons for judgment in Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 where he had considered the operation of s 424A.  In Carlos Merkel J had said the following at para [21]:

The operation of s 424A of the Act, which is the counterpart of s 359A in relation to the Refugee Review Tribunal (“the RRT”), has been considered in a number of cases.  The following propositions can be taken to have established:

·      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: see Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 at [32], Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 at [58]-[59]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [52]-[54], Bhasani v Minister for Immigration and Multicultural Affairs [2000] FCA 1773 at [8]-[9];

·        if information adverse to an applicant is relied upon in the reasons of the Tribunal, a failure to have complied with the statutory requirements in respect of that information will found a ground of review: see Naing at [33];

·        untested assertions communicated to, or received by, the Tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; 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 the reason for affirming the delegate’s decision: see Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 at [18]-[20];

·        the section is concerned with information of which the Tribunal becomes aware, rather than with its subjective decision making process: see Tin at [54].

92                  Mr Lloyd on behalf of the respondent said a number of things about this issue.  First, he said that as a matter of substance and fairness the Tribunal squarely put the appellant and her legal adviser upon notice of the importance of the evidence of Mr John Knight as to the date of death of the appellant’s husband and that that was all that was required to be identified, together, of course, with an explanation of its relevance which, he said, was manifestly done.  I agree that if this was all that had to be conveyed it was squarely brought to the attention of the appellant and her adviser in compliance with para 424A(1)(a) and that its relevance was made plain for the purposes of para 424A(1)(b).  Mr Lloyd says that no further information was necessary for a satisfaction of para 424A(1)(a) or para 424A(1)(b)

93                  Secondly, Mr Lloyd also submitted that para 424A(1)(a) was not breached because the dealing with Mr John Knight’s evidence and its part in the rejection of the appellant’s evidence was not the reason or a part of the reason for affirming the decision since the Tribunal also later in the decision rejected the claim and affirmed the decision of the delegate on the hypothesis, amongst other things, that it did accept the applicant’s evidence as to the date of death of her husband:  see the extract of the reasons at paragraph [71] above.  For the reasons expressed in paragraph [102] below I reject this submission.

94                  It is necessary to say something about s 424A.  First, the word “would” is used, not “could”.  I see no warrant to view the section as “crystallising” or “enlivening” any obligation merely because the Tribunal member in considering the matter forms the view that information could, or could possibly, be relevant to the determination of the claims.  The Tribunal must give the particulars which have a certain character:  particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision.  It is not just a question of general adverse relevance.  No time for compliance is identified.  I have difficulty in seeing how there can be a failure to observe a procedure unless and until a decision is handed down without compliance with s424A.  To this extent I disagree with the views of Hill J in Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336; [2000] FCA 344, at [32] and in Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at [58] and [59] and of Merkel J in Carlos, supra and Al Shamry, supra as to the time of the obligation arising and their Honours’ views of the general nature of the relevance of the information.  If the Tribunal delivers its decision without complying with the requirement of s 424A, it will have failed to observe procedures laid down for it by the Act.

95                  Secondly, I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and  Multicultural Affairs  [2000] FCA 1109 at [54] that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not the subjective appraisal or thought process of the Tribunal.  For example, as in Tin, supra, “information” does not extend to the subjective view in the mind of the Tribunal of the evidence, in that case that the applicant was “not credible” or, as here, that Mr John Knight appeared to give his evidence honestly.  However, the distinction can become very fine.  If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of para 424A(1)(b)) of information (for para 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance.

96                  Thirdly, the Tribunal must consider that the information would be the reason or a part of the reason for affirming the decision.  It is first necessary to identify the reason for the affirmation of the decision of the delegate.  In that enquiry it is necessary to bear in mind the context of s 424A in the Act and the use otherwise of the word “reason” or “reasons”, for example in s 430.

97                  Here, the decision of the delegate was to refuse a protection visa because the delegate was not satisfied that one of the criteria set under s 65, subs 36(2) and the regulations was present: that the applicant was a person to whom Australia had protection obligations under the Convention.

98                  The Tribunal affirmed that decision.  It affirmed the decision because it concluded that the appellant did not have a well-founded fear of persecution for reasons of a Convention ground.  It might just have said that it was not satisfied of that matter.  This conclusion was the reason for affirmation.  An examination of the decision of the Tribunal discloses that it expressed a number of reasons for coming to the conclusion it did about the lack of a well-founded fear.  One of the reasons for coming to the conclusion just mentioned was that the Tribunal, after hearing all the evidence, rejected the claims of the appellant, in part because it rejected her evidence about a central factual proposition she made about the date of her husband’s death.  It rejected her evidence (and that of others) about this central factual matter because it accepted or preferred the evidence of Mr John Knight about the matter.  One of the reasons upon which that acceptance or preference was based was because (the word “as” was used by the Tribunal) he (Mr John Knight) “was able to relate the date of the death of other events…  He said that his wife’s brother had been killed in 1986 and that applicant’s husband had died before that event.”

99                  For information “to be the reason or a part of the reason” for the affirmation of the delegate’s decision, some unbundling of the immediate reason for the affirmation is required.  As can be seen above, the immediate or ultimate reason is the finding, or state of satisfaction, about the lack of protection obligations.  Section 424A is intended to be directed to information being the reason or a part of the reason for that conclusion.

100               In any given circumstance it may not be straightforward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation.

101               Mr Lloyd submitted that the information, being Mr John Knight’s evidence about the date of death of his wife’s brother and his recollection that the appellant’s husband died before then, was not a part of the reason for affirming the decision because the Tribunal, after dealing with the matter as set out in paragraph [67] above, came to the conclusion that it would reject the appellant’s claim that Australia owed her protection obligations under the Convention quite independently of the rejection of her evidence about the date of death of her husband: see paragraph [71] above.  I do not agree.  The Tribunal based its conclusion on a number of matters.  One was the conclusion it reached, for the purposes of her claims under (c) and (d) in paragraph [60] above, of the falsity of her evidence of the date of death of her husband.  The existence of an alternative basis for rejecting her claim, even one that stands independently of the others, does not lead to the conclusion that the information was not a part of the first reason for concluding that protection obligations were not owed. That is not to say that this matter is not relevant for the purposes of subs 481(1) of the Act, to which I will come.

102               Mr Lloyd also submitted that sufficient particulars of the information were provided to the appellant by the Tribunal.  He said that the Tribunal drew the importance of the evidence of Mr John Knight to the attention of the appellant.  In one sense this is quite correct.  The appellant’s solicitor heard, and took notes of, Mr John Knight’s evidence.  In that sense it is true that the appellant (through her solicitor) knew of the evidence of Mr John Knight about the date of death of his wife’s brother and his recollection that the appellant’s husband died before then.  This submission is not without force.  It appealed to the primary judge who found that the Tribunal did refer to the “essence of the impact of the evidence of John Knight and indeed its significance”.  In substance, if I may respectfully say so, it encapsulates at least one element of the views of Emmett J on this part of the appeal.

103               It is, I think, a finely balanced question.  The Tribunal placed emphasis in its reasons on the evidence of Mr John Knight as to the date of death of his wife’s brother and his ability to relate that event in his recollection to the date of death of the appellant’s husband.  The relevance of that aspect of Mr John Knight’s evidence was not conveyed to the appellant, though the appellant was directed to Mr John Knight’s evidence generally.  It might be said that if elements of Mr John Knight’s evidence were to assume the significance they did for rejecting the claims, the appellant was entitled to have particulars of those elements given to her and to understand their relevance.  In this respect the obligations under paras 424A(1)(a) and (b) are necessarily intertwined.

104               The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness.  I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it.  The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind.  A consideration of these matters is obviously affected by the chosen approach of the Tribunal.  Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review.  This very much depends upon what the Tribunal takes to be relevant (cf Tin, supra at [52] to [54]).

105               However, at the risk of repetition, it should not be forgotten that the applicant is to be given particulars of information that the Tribunal considers would be the reason or a part of the reason for affirming the decision.  Assistance as to the meaning of the word “reason” can, perhaps, be obtained from s 430.

106               It may well be that the obligation under s 430 to set out the reasons for the decision does not involve an obligation to set out the reasons for preferring one witness over another; see generally Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811, Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940, Sivaran v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 and McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[66]; but cf Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691; and Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182.

107               With these considerations in mind one needs to ascertain whether there is information which the Tribunal considered would be the reason or part of the reason for affirmation.  This perhaps can be expressed as seeing how far one can remove oneself from the ultimate conclusion about the failure to meet the relevant criterion or criteria for the grant of the protection visa and still, sensibly, in accordance with the evident purpose of s 424A, be able to identify “information that the Tribunal considered would be the reason or a part of the reason” for affirmation.

108               Further explication requires analysis of a specific situation.  Here, while it is true that the Tribunal quite clearly identified to the appellant the importance of Mr John Knight’s evidence about the date of death of the appellant’s husband, the Tribunal did not specifically inform the appellant or her legal adviser about Mr John Knight’s evidence about his wife’s brother’s death in 1986 and that he recalled the appellant’s husband died before that event and its relevance to the fact finding process.  It is true that the appellant’s adviser was aware of the nature of Mr John Knight’s evidence in that he had been present when that evidence was given.

109               The evidence of Mr John Knight that his wife’s brother died in 1986 and that the appellant’s husband died before then was information.  It was knowledge which came to the Tribunal.  It had a relevance to the review because it assisted Mr John Knight to fix the date of death of the appellant’s husband.  It provided a reason for preferring one witness over others.  It thereby provided a reason for the finding of a fact central and adverse to the appellant’s claim.

110               In one sense, it is perfectly accurate to say that this information and its assessment was a reason for preferring one witness over others.  But I think it can be also said, because of its importance in the reasoning process, that it was a part of the reason for finding the date of death of the appellant’s husband to be before 1986 and not in 1995.  Thus expressed, it was a part of the reason for rejecting her claims, because of the central importance of the assertion of the date of death.

111               A point able to be made with force, I think, is that if s 430 does not require reasons to be set out for preferring one witness over another it, that is s 430, provides the clue for the cut off point for the identification of information for s 424A.  Information, particulars of which are to be provided, must be that which goes to the fact or proposition contended for, acceptance or rejection of which must be set out in the decision and which would be the reason or a part of the reason for affirmation.  Information going to the preference of one witness over another does not have to be the subject of particulars under s 424A because s 430 does not require this subject matter (the preference of one witness over another) to be a part of the reasons of the Tribunal.  In this way s 430 assists in identifying the limit of the “reason” for s 424A as excluding information going to this subject matter.

112               So, here, the information, particulars of which had to be provided, was that Mr John Knight had given evidence that the appellant’s husband died in the early 1980’s and not in 1995.  (Of course, particulars of this and an explanation of the relevance of it were provided.)  However, information that John Knight also gave evidence that he recalled the date of death of his wife’s brother in 1986 and that he recalled the appellant’s husband dying before that date would not have to be the subject of particulars (for s424A(1)(a)) and some communication as to relevance (for s424A(1)(b)), because that information was a part of the reason for preferring Mr John Knight over the appellant and others.

113               The point can be reinforced by saying that the Tribunal could have just said: “I prefer Mr John Knight’s evidence as to the date of death of the appellant’s husband.  I reject the appellant’s evidence on this fact.”

114               The above has the virtues of apparent clarity and certainty.  However, I do not think that it is the proper way to approach the problem.  I think the solution should not be found in a putative application of s 430, but from an application of s 424A and its evident purpose.  My view is that one needs to see from the decision what was the reason or a part of the reason for affirmation and, in the light of the reasoning process which in fact drew the Tribunal to that conclusion, assess what, in fairness, the claimant (here the appellant) needed to be apprised of in order that he or she could deal with issues that were of a relevance to the review as determined by the phrase “would be the reason or a part of the reason”.

115               Analogy, or example, sometimes only misleads by posing a false analogue, but it can highlight a proposition.  What if, here, Mr John Knight had not only recalled the date of death of his wife’s brother, but also produced a document which, on its face, seemed to indicate a date of death of that person in 1986?  On the above analysis, using the distinction thrown up by the jurisprudence on s 430, this was information going to the reason to prefer his evidence, since it did not go directly to the date of the appellant’s husband’s death and particulars of its existence would not have to be provided.  This cannot be.  That document, upon analysis and investigation might be a forgery or contain a mistaken numeral.  The records of the relevant authority in Sri Lanka, upon enquiry, might show a date of death of John Knight’s wife’s brother as 1996, not 1986.  This highlights, it seems to me, that the evidence (with or without the posited documentary support) is of relevance, not only to the choice between witnesses, but also to the resolution of the important factual matter and something which fairness dictated or would dictate that the appellant be told of.  This would be so, not because it did not relate to the preference of Mr John Knight’s evidence over the appellant’s and that of others it did but because it was also of central importance in  the reasoning process of the Tribunal leading to the rejection of the claimed date of death of the appellant’s husband and to the finding that he died not in 1995, but before 1986.  Its relationship to these central findings was direct.

116               The question as to whether information would be the reason or a part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant’s claims, for fairness to warrant that the applicant be told of it so that he or she can understand and be able to meet the integers or elements that make up the Tribunal’s reason or conclusion thusfar reached (hence “would”) for finding adversely to the applicant.

117               Sometimes, if, as here, sufficiently central, that will extend to information the most immediate relevance of which is to the assessment of one witness over another.

118               I do not need to decide whether there would have been a breach of s 430 if the Tribunal had not in its reasons explained why it preferred Mr John Knight’s evidence.  I am prepared to assume for the disposition of the matter that there would not have been.  That, however, does not answer the question whether, if what was in fact written about that matter did reflect the reasoning of the Tribunal, there would nevertheless have been, without the explanation, a non-observance of s 424A (albeit one which would never have become apparent to the appellant).

119               In my view, for the above reasons, there was a failure to observe the procedures in paras 424A(1)(a) and (b).  Particulars should have been provided of the evidence of Mr John Knight of his recollection of the date of death of his wife’s brother in 1986 and that he could recall that the appellant’s husband died before then.  Further, a communication of its relevance should have been made to ensure para 424A(1)(b) was satisfied.  This is not a matter of giving particulars of the thought processes of the Tribunal.  Rather, because of the Tribunal’s views, information came to have a central and specific relevance for the review and for the resolution of a question at the heart of the appellant’s claims.

120               I do not think that Mr Fergus’ presence at Mr John Knight’s evidence relieved the Tribunal from the obligation.  It may be seen, perhaps, as a factor ameliorating the need for particulars under para 424A(1)(a), but Mr Fergus cannot be expected to have understood how the Tribunal would take the relevance of these particular aspects of Mr John Knight’s evidence for the purposes of para 424A(1)(b).

121               However, it is clear from the transcript that any omission was by oversight.  There is no suggestion of any intentional oversight and I make no criticism of the Tribunal which appeared at all times to endeavour to comply fully with s 424A.

122               The breach of s 424A, because of its centrality, was, subject to my comments on subs 481(1) below, clearly one which could, in this part of the claims, prejudice the appellant.  She did not have the relevance of evidence about an extrinsic event (the date of the death of Mr John Knight’s wife’s brother, at least as recalled by Mr John Knight) drawn to her attention before the decision, denying her the opportunity of investigating it and possibly tendering material about it for consideration by the Tribunal.  However, prejudice is not the sole test of the legal consequences of the failure to observe procedures.  Section 424A lays down a procedure.  Paragraph 476(1)(a) provides that non-observance of a procedure is a ground of review.  Subsection 481(1) enables the Court to affirm the decision, notwithstanding the existence of the ground of review being made out.  The statutory enquiry called for by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v ABA (1998) 194 CLR 355 at 390-91 [93], is, I think, satisfied by the recognition of this interrelationship between s 424A, para 476(1)(a) and subs 481(1).  Nothing in Project Blue Sky requires, in this context, some assessment of the seriousness of the failure to follow procedures laid down by the Act before moving to para 476(1)(a) and subs 481(1).

123               Before moving to subs 481(1) I need to address the other ground of procedural complaint.  The second ground of procedural complaint arising is an alleged failure to comply with the procedures set out in ss 424B and 441A.  It is first necessary to deal with a matter considered by his Honour, but which was agreed by the parties not to be relevant.  His Honour saw an inconsistency between the phrase “in the way that the Tribunal considers appropriate in the circumstances” in para 424A(1)(a) and the requirement to follow s 441A set out in subs 424A(2).  No such inconsistency exists.  The requirement to follow s 441A referred to in subs 424A(2) is as to the invitation referred to in para 424A(1)(c) not the giving of particulars in para 424A(1)(a) or the ensuring of the matters in para 424A(1)(b). 

124               The submission by the appellant that there had been a failure to follow ss 424B and 441A, to the extent that it existed independently of the complaints about the lack of particulars and information being provided for the purposes of paras 424A(1)(a) and (b) discussed above, revolved around the complaint that the letter of 13 March 2000 referred to in paragraph [64] above only specified fourteen days for response, when in fact the relevant regulation made under s 424B (reg 4.35) required the invitation to give twenty eight days.  If this were the only complaint, I would unhesitatingly affirm the decision under subs 481(1) notwithstanding any such breach.  It is plain that not one ounce of prejudice could possibly have flowed from this.  No prejudice was put as having flowed. 

125               Therefore, the only remaining matter to consider is the question as to whether notwithstanding the failure of the Tribunal to observe procedures in connection with the making of the decision by the failure to comply with paras 424A(1)(a) and (b) in the manner I have discussed, this Court should dismiss the appeal on the basis that his Honour was otherwise entitled to dismiss the application.

126               As set out in paragraph [71] above the Tribunal, towards the end of its reasons, dealt with the applicant’s claims independently of the adverse finding concerning the date of her husband’s death and independently of the other findings there expressed.  The Tribunal had already rejected her claim based on her Tamil ethnicity.  I have dealt with this earlier.  In passages referred to in paragraph [71] above the Tribunal specifically set out an alternative course leading to the affirmation of the decision of the delegate on the basis of the acceptance of evidence earlier rejected.  Mr Karp, on behalf of the appellant, submitted that the error in application of s 424A infects the whole of the reasons, at least on credit.  He also said that the passages referred to in paragraph [71] above are unreliable and should be recognised to be infected by the impugned credit findings.  Mr Lloyd, on behalf of the Minister, said that the Tribunal has said what it would have done had it found differently about the question, amongst other things, of the date of death of the appellant’s husband.  He said that the existence of procedural error as to one factual finding does not entitle an otherwise impermissible factual (or merits) review of another part of the decision said to be expressly predicated on the reversal of the finding of fact affected by the procedural error.  He said that the consideration by the Court of the exercise of the discretion under subs 481(1) as to whether to affirm the decision or set it aside does not entitle the Court to go behind the ex facie independent factual finding of the Tribunal, which is not otherwise said to be vulnerable under s 476 of the Act.

127               In the part of the decision referred to in paragraph [71] above the Tribunal approached the matter on the basis of acceptance (and so acceptability) of the appellant’s evidence about the date of her husband’s death and acceptance of her evidence that she had had money extorted from her by the Tamil Tigers.  These were central matters as to her subjective fear to be determined, in significant part, by her reliability or credibility. However, the Tribunal went on to say that there was no well-founded basis for the subjective fear.  It then set out a  number of reasons for so finding.  These reasons are not the subject of separate attack under s 476.  They are independent, on their face, from the unfavourable findings earlier made about the appellant’s evidence, because they rest on the foundation of acceptance of the evidence previously rejected.

128               Mr Karp also referred to evidence given by the appellant about a false signature in signing over land to the Tamil Tigers, which the Tribunal, even in the alternative, refused to accept.  (See the extract in paragraph [71] above.)  He also referred to evidence given by the appellant that in 1991, while in Saudi Arabia, she received a letter from her husband to the effect that the army was harassing him, for reasons which included a desire to find out her whereabouts, and that even after she was known to be in Saudi Arabia she was thought to be assisting the Tamil Tigers by sending them money from there.  This was not mentioned by the Tribunal in the passages in paragraph [71].  Mr Karp submitted that the statement referred to in paragraph [71] to the effect that

There is no suggestion nor evidence to support any inference that the authorities in Sri Lanka suspect the applicant of anything, there is no reason to suspect they would harm her.

implied a rejection of this evidence given by the appellant about the army seeking her out.  This, Mr Karp said, reflected a continuing role for adverse credit findings in the decision, notwithstanding the acceptance, at this point of the decision, of her evidence about the date of her husband’s death and the extortion by the Tamil Tigers.  So, Mr Karp said, the alternative foundation for the making of the decision cannot be seen as unaffected by the procedural error, because that alternative foundation had within it the rejection of evidence which she had given and because the procedural error went not just to the specific finding about the date of death of her husband, but to her credit generally.

129               I do not think that the consideration of the exercise of discretion under subs 481(1) in assessing what ought to be the consequence of my views as to the non-observance of procedures for the purposes of para 476(1)(a) should include a review of the reliability and correctness of factual findings of the kind set out in the passages referred to in paragraph [71] above.  An objective lack of a well-founded fear was addressed.  An ability to move to, and be safe in, the south of the country was found.  To the extent that it can be said that credit continued to infuse this part of the reasons it must be realised that the Tribunal was the trier of fact and it had the appellant before it and it felt able to assess, and did assess, what it would have done if it had found the appellant’s evidence about the date of death of her husband and about the claimed extortion to be acceptable.

130               While it can be said, without distorting the position, that the procedural error went to credit, specifically it went to rejecting her evidence about the date of death of her husband and the preference for Mr John Knight’s evidence.  In the passages referred to in paragraph [71] above, the Tribunal was positing the acceptance of her evidence in that regard and, on that basis (including the hypothesised acceptability of her evidence compared to Mr John Knight), expressing what the evidence otherwise led it to find.

131               There may or may not have been residual credit considerations leading to the findings in the passages referred to in paragraph [71], but such considerations cannot be said to arise from the rejection of her evidence about the death of her husband and the preference for Mr John Knight’s evidence without affording her an opportunity to deal with one aspect of that evidence, because this part of the decision is formulated on the basis of the acceptance and acceptability of her evidence about the date of death of her husband, necessarily, over the evidence of Mr John Knight. 

132               Thus, it seems to me that this part of the decision, which otherwise supports the conclusion reached by the Tribunal, is to be seen as independent from, and unaffected by, the procedural error, which I think occurred.

133               His Honour was of the view that there had been sufficient essential and substantial compliance with s 424A and that any further necessity to comply with the procedures contained in ss 424A and 441A was a matter of technicality only.  For the reasons earlier expressed, I respectfully disagree.  However, his Honour’s use of subs 481(1) can, in my view, be supported in the way I have described.

134               For the above reasons I am of the view that the learned primary judge was correct in dismissing the application, but for reasons different to those upon which his Honour relied.

135               In my view the orders should be:

(a)                leave be granted to further amend the notice of appeal;

(b)               the appeal be dismissed; and

(c)                the appellant pay the respondent’s costs.

Associate:

Dated:              29 August 2001