FEDERAL COURT OF AUSTRALIA

Abujoudeh v Minister for Immigration & Multicultural Affairs [2001] FCA 1351

MIGRATION - application for protection visa - review of decision of Refugee Review Tribunal - Tribunal member who conducted oral hearing retiring before decision made - Tribunal reconstituted by another member who made decision without inviting applicant to further hearing - whether procedures ordained by ss 422(2) and 425(1) of Migration Act complied with - decision based on adverse findings about plausibility of applicant’s account - whether Tribunal bound to hear applicant where findings of credibility do not turn on demeanour - review of Tribunal’s decision not an appeal on a question of fact.

Migration Act 1958 ss 422(2), 425(1), 428, 476(1)

Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315

Lui v Minister for Immigration and Multicultural Affairs [2001] FCA 49

Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506

Navaratne v Minister for Immigration and Multicultural Affairs [1997] FCA 713

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

Re Minister for Immigration for Multicultural Affairs Ex Parte Durairajasingham (2000) 74 ALJR 405 at 417

ALI ABUJOUDEH  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V253 of 2000

RYAN J

MELBOURNE

21 SEPTEMBER 2001

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of the Kingdom of Jordan who arrived in Australia on 26 November 1997 on a student visa which expired on 6 March 1998.  On that date the applicant applied for a protection visa.  A delegate of the Minister for Immigration and Multicultural Affairs refused his application on 25 September 1998 and on 15 October 1998 the applicant sought a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  A hearing was held by the Tribunal, constituted by Member Haig, on 12 April 1999.  After the hearing, but before a decision was made, Member Haig resigned from the Tribunal and the case was allocated to Member Wood.  On 15 September 1999 the applicant was advised of Member Haig’s resignation and was offered an opportunity to submit further information.  However, the applicant was not invited to appear before the differently constituted Tribunal to give evidence or present oral arguments.  The applicant did not submit any further information.  On 15 March 2000 the Tribunal affirmed the delegate’s decision not to grant the protection visa, formally handing down its decision on 31 March 2000.  On 27 April 2000 the applicant applied to this Court for a review of that decision.

Claims and Evidence

2                     The applicant was born in Jordan on 1 June 1978.  He contends that he has a well-founded fear of persecution by the government of Jordan by reason of his political opinions.  The applicant claims that, in August 1994, whilst he was a student in Jordan, he became a member of the political party of Hizb at-Tahrir, or the Liberation Party of Jordan (“the Party”).  The Party seeks to bring about the resumption of the Islamic way of life in Jordan, advocating the non-violent overthrow of the Jordanian government, the abrogation of the Constitution and the adoption of Islamic law as the foundation of the State. The Party has been banned by the Jordanian government and all of its activities are thus illegal.  The Jordanian government has been known actively to persecute and target both prominent leaders and rank and file members of the Party. 

3                     The applicant claims that, before becoming a member of the Party, he underwent three weeks of induction, joining a small unit or cell of about ten people.  After these three weeks the leader of the cell nominated him for full membership of the Party.  The Tribunal summarised his evidence as follows:

“There were no papers or formal documents of membership because the party was a prohibited one.  The organisation was secretive and so no member was allowed to know the identity except of the few others in his cell group.

…

He stated that his first activity as a member of Al-Tahrir was to join with a party speaker and a few other members to speak to people in mosques and other educational facilities.  These speeches were designed to raise the people’s awareness about the political system in Jordan which meant, of course,  criticising the government.  He took part in these rounds of speech-making until May 1995.  He told the Tribunal that he was not totally involved in party activities as he was also studying at the time.

The Applicant claimed that in about May 1995 the party intensified its criticism of the government … [The applicant] was required to attend the prayer services and afterwards to speak to youths about the party and the government and to hand out pamphlets.  He also pasted pamphlets around the walls of the city and surrounding towns.”

4                     In late 1995, Sheik Taher Abdul Hamid, a prominent member of the Party, was arrested after making a speech denouncing the government.  Thereafter, Party members, including the applicant, decided to speak out openly in an effort to arouse people to rise against the government.  At the end of January 1996, the applicant claimed, he was arrested by the authorities.  The Tribunal noted;

“He was on his way home one evening when he was approached by several members of the security service, the Mokhabarat.  They questioned him and hit him.  They then took him in a car to a building with a basement and threw him into a cell.  For three days he was continuously questioned about his activities and he was tortured and beaten.  He was imprisoned for 56 days.  He was tortured every week that he was there.  On his release he was warned that the treatment would be even more severe the next time.  He did not believe that this was a random arrest.”

5                     The applicant also claimed that before his arrest his parents did not know of his political activities.  Whilst he was in detention his parents were concerned about his whereabouts and sought to locate him through friends, but did not report his disappearance to the police, because the police were generally unhelpful in such circumstances.  After his release the applicant limited his activities in support of the Party and returned to school, completing his secondary education in about July 1996.  Despite receiving overall marks of 77% he was not offered a place in any tertiary institution.  He was certified by the management of the Ithad Madaba Club as having achieved the distinction of winning a gold medal in a cross-country race and as a result the Directorate of Education added five marks to his score in the General Secondary Certificate..

6                     In early 1996 there was a change of government and for a while the situation calmed down.  However, as the Tribunal recited;

“The Applicant stated that in June or July 1996, there was a massive price rise for all commodities and an increase in unemployment.  His party began to mobilise again and the pamphlet distribution campaign was increased.  After a rise in the price of bread, the people revolted and there were many demonstrations.  He joined in every demonstration that he could.  During the demonstrations there was sometimes vandalising of government symbols and offices and clashes with the police.  The government used tear gas and baton charges to break up the demonstrations.  He was caught in this demonstration and beaten severely.  He was detained for three days and continued to be physically abused.  Fortunately the government decided to blame the demonstration on the Iraqi Ba’athist party and allowed some people, including himself, to go free.  It was at this time that he had sustained an injury to his shoulder which resulted in him going to hospital later in September.”

7                     After this, and as a result of a number of high profile arrests of members of the Party, the applicant decided to go into hiding, while still actively distributing pamphlets and attending meetings at night.  The Tribunal noted;

“He continued with these activities until March 1997 when he was sent a letter requiring him to present himself to the Mokhabarat.  He did not attend but instead went to hide with some friends in Al Ba’aga.  About ten days later his parents telephoned him to say that the security forces had been to the family home searching for him and had taken the Applicant’s brother in his stead.  His brother was questioned and beaten and then released on the assumption that he would bring his brother to them.

The Applicant stated that he spent the next two months in hiding at his sister’s house.  He remained in contact with other members of the party cell.  He asked to be transferred to another cell and this was done.  He moved to Al-zarka where he lived with a party friend and resumed his education.

The Applicant stated that during that time his family told him they had received another notice from the security officials and he also heard that his friend who had introduced him to the party had been arrested.  He decided it was necessary for him to flee the country.”

8                     The applicant thus applied for a student visa to come to Australia.  The applicant had, in the previous year, obtained a passport. In support of his visa application the applicant was required to provide Australian immigration authorities with a Good Conduct Certificate from the General Intelligence Directorate of Jordan.  According to the applicant, as a result of his political profile, he had to obtain this certificate fraudulently and he arranged for his uncle, who was a member of the Air Force, to complete the application form using the name of the applicant’s cousin which is identical to the applicant’s name.  Once the certificate had been obtained, the applicant replaced the photograph of his cousin with one of himself.  Accordingly, the applicant was granted the student visa and he was able to leave Jordan without encountering any trouble.  Since the applicant’s arrival in Australia he has received information from his father that a third summons had been issued notifying him of the hearing of a criminal charge against him.  As the applicant was not present, his brother had received the summons and had to report in the applicant’s stead.  He was placed under house arrest for 48 hours and had to sign an undertaking to hand the applicant over to the authorities when he returns.

The Tribunal’s Reasons for Decision

9                     The Tribunal, as reconstituted by Member Wood, set out a number of reasons for its decision, mostly based on the perceived implausibility of the applicant’s story which reflected adversely on his credibility.  The Tribunal noted that asylum seekers may not be able to provide corroborative material to support their claim, but went on to say that “the Tribunal is not bound to believe any and all statements made by an applicant.  It assesses the claims within the context of the particular country against which the claims are made and looks for the claims to be at least internally plausible.”  Approaching them in this way, the Tribunal found many of the applicant’s claims to be implausible on a number of different grounds.

10                  In the first place, the Tribunal considered that the fact that the applicant had been able to apply for, and obtain, a passport in July 1996 without encountering any difficulty, was difficult to reconcile with his claims to have been arrested twice.  In particular, the Tribunal noted;

“While it may be true that one part of the government does not always efficiently relate to another, it would be very difficult for a person who had two periods of arrest to be granted a passport without some investigation or, if the passport was already issued, for it not to be cancelled if a person was wanted by the courts.”

11                  The Tribunal then went on to explain that it did not find the applicant’s account of his first arrest on suspicion of his membership of the Party to be credible because;

“He was at the time still in high school ... ... ... ... ... and yet he has claimed his parents did not know of his membership of the party until after his release from 56 days of detention.  This lacks credibility alongside his claim that he made speeches, handed out pamphlets, was responsible for promoting the cause in a neighbouring area and generally was seen to be allied with the Al-Tahrir cause.  He has claimed to be a member of the party at a time when he was living with his parents.  It is implausible that his parents would not have known something of his political activities until he told them after his release.

The Tribunal also finds it implausible that his parents would not have sought help from the police when their son went missing for the long period of 56 days.  If, as he has claimed, they did not know he had joined a banned party, then it is implausible that they would have leapt to any conclusion that he was missing for any government-connected reason.”

12                  The Tribunal also questioned the plausibility of the applicant’s evidence as to his resumption of schooling after his detention, and questioned his claims that he did not tell the Party cell leader of his detention immediately after his release;

“It is implausible that there would be no rumours of his having been apprehended by the Mokhabarat if he was, as he claimed, a member of a small cell.”

13                  The Tribunal also did not accept the applicant’s account of his acceptance into the Party in 1995, finding it;

“implausible that such a party would take a young person into its ranks after a mere three weeks induction ... it would be risky behaviour to take on a young man with so few checks of his ability and background.”

14                  It also found it implausible that he could have accompanied other Party members to mosques without his family becoming aware of his political involvement.

15                  Nor did the Tribunal believe the applicant’s account of his increased outspokenness after the arrest of Sheik Taher Abdul Hamid in December 1995, given that it did not find plausible his accounts of joining the Party, and being arrested in early 1996, and because he had received a letter from the Directorate of Education in Madababa, attesting to his sporting excellence and that he was “a student in good standing with the authorities.”  The Tribunal also examined the documents submitted by the applicant in support of his application, namely three summonses for him to attend court.  The Tribunal cautioned that “[i]n this current period where almost any document can be forged or fraudulently obtained, the mere fact of the existence of a document does not of itself prove or disprove an applicant’s claims.”  In the context of the applicant’s overall claims the Tribunal did not regard the documents as advancing his case, as it questioned why each document had a slightly different name for the office to which the applicant was to report.  The Tribunal did not expressly find that the documents were fraudulent, but went on to say that acceptance of the applicant’s account would entail accepting that the applicant was wanted on criminal charges, despite the fact that no effort had been made to cancel his passport or prevent him from leaving the country.

16                  As well, the Tribunal did not accept the applicant’s account of how he obtained the Good Conduct Certificate necessary to procure his student visa.  To accept that account, the Tribunal said, would mean that it would;

“...have to accept also that a member of the Air Force would place his career on the line by entering into a plan to substitute his own son’s particulars for those of his nephew in order for the latter to obtain his Good Conduct Certificate.  It should be noted here that the Jordanian Air Force is widely regarded as a significant supporter of the monarchy and so for his uncle to have acted in this way would be doubly difficult.  As well as implicating his own son, he could jeopardise his own career by acting disloyally to a regime historically well-served by the Air Force.

The Tribunal has considered but rejected the evidence of the Applicant that the Good Character Certificate had undergone a photo-substitution when his own photograph was substituted later and the seal was then retraced. The certificate is in the same name as the Applicant.  It gives the same year of birth.  In effect, it identifies this person.  The Tribunal is not satisfied that the certificate would have been issued to a person of that name and year of birth if there was an outstanding warrant for him from the courts.”

17                  The Tribunal accepted that the applicant may have participated in the violent “bread riots” of 1996, so that it was possible that he had been caught and even beaten by the security forces.  However, the Tribunal went on to find that the government had declared a pardon for those arrested in the riots, “leaving the Tribunal unsatisfied as to the genuineness of his claim that there were and are charges outstanding against him.”

18                  The Tribunal also disbelieved the applicant’s claims to have gone into hiding for some months before coming to Australia.  In particular, the Tribunal said;

“The Tribunal has considered the Applicant’s claim that he went into hiding for some months before coming to Australia.  It finds this conflicts with information submitted so that he could obtain a student visa to enter Australia.  Among the information given was a letter from the Center for Consultation Technical Services and Studies, University of Jordan, which indicates that he attended English classes from 5 July 1997 to 30 August 1997, a course preparatory to him sitting for a test in the English language.  It was not a course which he could do in secret as it required him to attend classes in Amman.  This makes it difficult to accept his claim to have been in hiding at that time and the Tribunal does not accept it.

Adding to the Tribunal’s dissatisfaction is the Applicant’s evidence of the level of interest he alleged was taken in him by the Mokhabaret.  That is, he claimed that the security forces had searched the family home, taken his brother away as a substitute and beaten him.  He also claimed he had spent two months in hiding at his sister’s house.  It is implausible that the Mokhabarat would be so insistent on finding him yet fail to locate him at the home of his sister.

While no security system is foolproof, the Tribunal has taken into account that the Applicant was declared not to be a risk to Australian national security by ASIO prior to the granting of his visa in October 1997.  The Tribunal has no way of knowing how thorough that particular assessment was nor on what information it was based.  However, had the Applicant been a known member of Al-Tahrir or known to have spent time in prison, it would be unlikely that he would have been given a clean bill in this way.”

19                  Taking into account all of these considerations the Tribunal made the following finding;

“The Tribunal is not satisfied that the Applicant has presented a genuine claim that he is in need of protection from the authorities of his own state.  It has found internal implausibilities in the claims which undermine his credibility.  It is not satisfied that he is wanted by the authorities of his own country or that he faces a real chance of persecution for reasons of his political opinion if he returns to Jordan.”

Grounds of Review

20                  The applicant seeks to challenge the Tribunal’s decision on the basis that the Tribunal did not observe procedures that were required by the Migration Act 1958 (“the Act”) or Regulations (breach of s 476(1)(a)), the Tribunal misinterpreted or misapplied the law to the facts (s 476(1)(e)) and the decision was not authorised by the Act (s 476(1)(c)).  The primary basis on which the applicant challenges the Tribunal’s decision, is related to the process by which the reconstituted Tribunal reached its findings on credibility.  In particular, the applicant contends that the Tribunal did not observe the procedures required to be followed under ss 422(2) and 425(1) of the Act.  The relevant provisions are as follows:

Section 422

(1)       If the member who constitutes the Tribunal for the purposes of a particular review:

(a)        stops being a member; or

(b)        for any reason, is not available for the purpose of the review at the place where the review is being conducted;

the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

(2)       If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

(3)       In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).

Section 425

(1)       The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)       Subsection (1) does not apply if:

(a)       the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)       the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)        subsection 424C(1) or (2) applies to the applicant.

(3)       If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

21                  The applicant, through his Counsel, Ms Beaton-Wells, argued that the effect of s 425 is to require the Tribunal to avail itself of its opportunity to see and hear an applicant’s witnesses and arguments if it is unable to reach a decision favourable to the applicant on the basis of the material before it.  Section 422 provides for what is to happen where a review has been commenced but the Member constituting the Tribunal becomes unavailable before a decision is made and the Tribunal is subsequently reconstituted. Ms Beaton-Wells acknowledged that there is no provision in the Act requiring a reconstituted Tribunal to invite an applicant to appear before it to give evidence and present arguments, or to have regard to the evidence given by an applicant at a hearing before the Tribunal as previously constituted.  However, she contended that, given that the Tribunal had doubts as to the applicant’s credibility, it was obliged to invite him to attend a further or supplementary hearing.  Its failure to do so resulted, so the argument went, in a failure to comply with s 425 of the Act and in a failure to give the applicant a “genuine”, “real” or “reasonable” opportunity to be heard, contrary to the decision in Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315.  The applicant also contended that the failure to invite him to attend a further or supplementary hearing amounted to a non-observance of procedures that were required by the Act to be observed in connection with the making of the decision within the meaning of s 476(1)(a).

22                  The respondent submitted that the Tribunal, as originally constituted by Member Haig, had extended an invitation to the applicant to appear before the Tribunal to give evidence within the meaning of s 425(1), so that there had been compliance by “the Tribunal” as it was constituted at the relevant time.  Moreover, Parliament, in providing, as it did in s 422, for circumstances requiring the reconstitution of the Tribunal, did not require any step in the review already completed to be taken again or another hearing to be held.  The respondent also pointed to s 428 which, so far as is relevant, provides;

(4)       If a person (other than the Tribunal as constituted for the purpose of the review) exercises the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review, the person must cause a written record of the evidence taken to be made and sent to the Tribunal.

(5)       If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of s 425, is taken to have given the applicant an opportunity to appear before it to give evidence.

23                  After the hearing of this matter, the respondent drew the Court’s attention to the judgment delivered by Wilcox J on 9 February 2001 in Lui v Minister for Immigration and Multicultural Affairs [2001] FCA 49.  That case involved substantially similar facts to the present, in that the applicant had attended a hearing conducted by one Tribunal member who subsequently retired from the Tribunal without having issued a decision, and the matter was decided by another Member who did not invite the applicant to give further evidence to the differently constituted Tribunal.  Wilcox J, whilst acknowledging that it was desirable for the oral hearing to be conducted by the member who makes the Tribunal’s ultimate decision, said, at [18];

“However, desirability is one thing; legal necessity is another.  The course taken by [the applicant] is open to challenge in this Court only if the Migration Act, upon its proper construction, requires the oral hearing to be conducted by the person who makes the ultimate decision.  I do not think it does.”

24                  His Honour went on to state, at [19];

“The word “Tribunal”, in s 425(1) of the Act, refers to the statutory entity whose full title is “Refugee Review Tribunal”.  This is apparent from s 410 of the Act.  A statutory entity must act through human agents.  It follows, I think, that there is compliance with a statutory command that “the Tribunal” carry out some act if the act is performed on behalf of the Tribunal by an authorised person …. Applying that approach, the words in s 425(1) “before the Tribunal” constitute a reference to the Tribunal as constituted by the member who is, at that time, assigned to the case by virtue of a direction of the Principal Member made under s 421(1) of the Act.”

25                  Wilcox J also went on to find that it was a fundamental assumption of the applicant’s argument that Parliament would not have contemplated that someone other than the decision-maker might conduct the s 425(1) hearing.  However, as his Honour observed, that is difficult to reconcile with s 428 by which;

“... Parliament provided a mechanism whereby the evidence of an applicant for a protection visa might be taken by a person other than the member of the Tribunal who makes the final decision …[s 428] undermines the assumption that Parliament would not have wished to separate the task of conducting any part of the oral hearing from that of deciding a review.”

26                  Lui was subsequently followed by Hely J in a judgment published on 4 May 2001 in Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506.  Hely J agreed with Wilcox J, observing, at [24];

“... if Parliament had intended to require the substituted member to hold a fresh oral hearing, the appropriate course would have been to insert a requirement to that effect in s 422 and s 422A.  But Parliament did not do this.  Instead it commanded the substituted member merely to “finish the review” with an express provision that, for that purpose, the substituted member was entitled to have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.”

27                  Counsel for the applicant further argued that the present decision had been based primarily, if not solely, on findings on questions of credibility adverse to the applicant.  In those circumstances, it was submitted, for the Tribunal to have made a decision about the credibility of the applicant without ever having seen or heard him as a witness, involved an error of law.  In support of this argument reference was made to authorities to the effect that courts should be cautious in interfering with Tribunal findings on credibility, as the “credibility of an applicant is largely a matter of impression”, see e.g. Navaratne v Minister for Immigration and Multicultural Affairs [1997] FCA 713, per Tamberlin J.  From that premise it was argued that the Court’s reluctance to set aside findings based on credibility is attributable to its recognition that the Tribunal, having had the opportunity to see, hear and question the applicant as a witness, is better placed than the reviewing court to evaluate his or her credibility.  In this respect, Counsel for the applicant quoted this passage from the judgment of Merkel J in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635, at 647;

“... it is well-established that a Court should not disturb a finding of fact based on an assessment of the credit or credibility of a witness unless the tribunal or court below did not take advantage of its opportunity to see and hear the witness.”

28                  Accordingly, it was submitted that where a reconstituted Tribunal forms a view on the material before it that there are credibility issues that may lead to a decision adverse to an applicant, it must provide the applicant with the opportunity to appear before it and give evidence.

29                  When regard is had to the whole passage from which the extract from Emiantor is quoted, it is clear that his Honour was referring to a principle applicable to “an appeal from a decision of a Tribunal or a court on questions of fact and law.”  Immediately after the quoted extract, Merkel J instanced another circumstance in which a decision below might be disturbed as being where the conclusions reached were “inconsistent with an overwhelming body of evidence or were glaringly improbable.”  His Honour further noted that when a challenge to a finding of fact based on an assessment of credit is successful, the error identified is generally one of fact, not law.  This Court, as noted in the same passage from Emiantor, is generally precluded under Pt 8 of the Act from reviewing the Tribunal for error of fact.  The respondent noted that as the finding of facts is the exclusive province of the Tribunal, the Court’s role cannot be assimilated to that of an appellate court hearing an appeal on questions of fact and law.  Accordingly, the respondent contended that Merkel J should not be taken to have been saying that the Court on review “should disturb” findings of fact based on credibility where the decision-maker has not observed the witness.

30                  The two recent authorities on this issue, Ahmed and Liu, make clear that the Act does not distinguish between cases where credibility is critical and where it is not.  Accordingly, that distinction cannot avail the applicant in seeking to impose on the Tribunal the obligation for which he contended.  As Hely J said in Ahmed, at [27]:

“Whilst the member concluded that the applicant was not a credible witness, that conclusion was not based on any supposed advantage enjoyed by a trier of fact who observes a person giving evidence.  There were other, and it might be thought, more satisfactory ways of “finishing the review” than reading an obviously incomplete transcript of the hearing before the previous member.  However, that does not mean that there has been a failure to comply with s 476(1)(a).”

And, at [32]:

“RRT made sweeping findings as to the credibility of the applicant without ever hearing from him, or seeing him, or listening to him.  In the view which I take, that did not involve any legal error on the part of RRT , although it must be only in extreme cases that claims can be dismissed as incredible in those circumstances. Whether this is such a case was a matter for RRT to decide.”

31                  This was not an extreme case of the kind adverted to by Hely J in Ahmed because the Tribunal’s conclusions of implausibility were not based on an assessment by the Member who previously constituted the Tribunal, or anybody else, of the applicant’s demeanour or apparent candour or lack of it when giving evidence.  Rather, the Tribunal found those of the applicant’s claims which it rejected to be implausible because they were inconsistent or difficult to reconcile with undisputed facts or general knowledge acquired by the Tribunal in the course of its experience.  For example, the Tribunal pointed, in the passage quoted at [10] above, to the applicant’s obtaining and continued possession of a current passport.  The Tribunal also indicated, in the same context, the improbability that the applicant’s parents were unaware, as he claimed, of his intensive Party activities.  Similarly, the discrepancies which the Tribunal detected in the three summonses to the applicant to attend Court, could not have been overcome by an appearance of candour or truthful demeanour on the part of the applicant had he given evidence before the Tribunal as reconstituted.  Likewise, the Tribunal’s conclusion set out at [16] above in relation to the Good Conduct or Good Character Certificate depended on its own examination of that document and its objective assessment of the likelihood of its having been issued in the circumstances asserted by the applicant.  The Tribunal also relied on internal inconsistencies between the applicant’s claims to have been in hiding for some months before leaving for Australia and other parts of his account;  see [18] above.

32                  It will be seen, even from the brief résumé which I have just given, that the approach which led the Tribunal to characterise certain parts of the applicant’s claims as implausible, was based on a dispassionate analysis of the content of the applicant’s evidence, not the manner in which it was given.  It is therefore, highly unlikely that, had the applicant been personally heard and seen by Ms Wood, his explanations of the inconsistencies on which she relied would have been so convincing or that his demeanour would have been so disarmingly frank as to overcome all or most of her objections.

33                  A finding that an applicant should not be believed in his claim is pre-eminently one for the Tribunal to make for whatever legally permissible reasons commend themselves to it.  As McHugh J observed, in Re Minister for Immigration for Multicultural Affairs Ex Parte Durairajasingham (2000) 74 ALJR 405, at 417;  [67];

“In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were "utterly implausible".  However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence.  If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible".  The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.”

34                  Accordingly, the finding which the Tribunal made in the present case on the credibility of the applicant’s account was open to it and sustainable by the reasons which it gave.  As I agree with Wilcox J in Lui and Hely J in Ahmed that it was not obligatory for the reconstituted Tribunal to invite the applicant to appear before it and give evidence, it follows that it has committed no reviewable error of law.

35                  The applicant raised at the hearing the argument that s 425 of the Act may import a continuing obligation to hold hearings when an issue can be said to have arisen afresh during the course of review proceedings.  I gave leave for the respondent to file and serve further submissions in writing directed to that issue.  That leave was exercised and the applicant filed answering written submissions.  However, in the light of the conclusion just indicated that s 425 does not impose an obligation on the Tribunal to invite an applicant more than once to a hearing, this argument cannot be sustained.

Conclusion

36                  For the reasons which I have explained, the application must be dismissed with costs. 

Associate:

Dated:              21September 2001