FEDERAL COURT OF AUSTRALIA

NAMB v Minister for Immigration & Multicultural & Indigenous Affairs

NAMC v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 718

MIGRATION – whether failure to provide particulars of inconsistencies of evidence to the applicant husband amounted to a breach of s 424A of the Migration Act 1958 (Cth) – whether a breach of s 424A amounted to jurisdictional error  – whether the Refugee Review Tribunal’s decision can be said to be so illogical as to give rise to jurisdictional error.

Migration Act 1958 (Cth) s 424A

Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 applied

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59applied

Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 followed

NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102 referred to

NADN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 572 approved

Plaintiff S157/2002 v The Commonwealth (2003) 77 ALJR 454 followed

Re Refugee Review Tribunal; Ex parte Aala (2000)204 CLR 82 applied

NAMB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 392 of 2003

NAMC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 393 of 2003

JACOBSON J

11 JULY 2003

SYDNEY

THE COURT ORDERS THAT:

1          The application (ie, that of the wife) must be dismissed.

2          The applicant (the wife) pay the respondent’s costs of the proceedings. 

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

THE COURT ORDERS THAT:

1          The application (ie, that of the husband) be allowed.

2          The matter be remitted to the Refugee Review Tribunal to be determined according to law. 

3          The respondent  pay the applicant’s  costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     These are two applications brought by the applicant husband, NAMC, (“the husband”) and his wife, the applicant NAMB, (“the wife”) seeking judicial review of two decisions of the Refugee Review Tribunal (“the RRT”).  The RRT handed down a single set of reasons on 19 February 2003 affirming decisions of delegates of the Minister refusing to grant a protection visas.  The decision of the delegate on the husband’s application for a protection visa was given on 17 October 2001.  The decision of the delegate on the wife’s separate application for a protection visa was given on 24 October 2002.

2                     The husband and the wife are citizens of India.  The husband is a visual effects artist who appears to have impressive qualifications.  He specialises in visual animation for television programs.  His claimed fear of persecution arose out of the circumstances in which TV footage showing the arrest of a political leader in Tamil Nadu State, Mr Karunanidhi, was altered.

3                     The husband claimed that he had been requested by a television station to alter the footage to make it appear that the police had assaulted Mr Karunanidhi during his arrest.  His evidence was that he and two of his professional colleagues participated in the editing of the film footage.  The husband’s two colleagues also made applications for protection visas in Australia based on the same events as the husband put forward in support of his application.

4                     The RRT’s reasons placed some emphasis on the way in which the husband claimed that the editing work was carried out.  The RRT said that the husband’s claim was that he and his colleagues had been asked to, and apparently that they had digitally erased some footage and interpolated additional falsified footage.

5                     The RRT dismissed the husband’s claims because it was not satisfied that he was involved in the incident at all.  The RRT gave four reasons for making this finding.  The reasons included inconsistencies which the RRT found to exist between the husband’s evidence and that of his colleagues as to the number of digital units, known as AVID, which were used in the work and inconsistencies between his colleagues and his wife as to a number of events which took place before and after the editing work was carried out.

6                     The RRT provided information to the husband about inconsistencies between some aspects of his evidence and evidence of  his colleagues and it invited him to comment on this. 

7                     The RRT did so in a letter dated 9 October 2002 which was intended to comply with the provisions of s 424A of the Migration Act 1958 (Cth) (“the Act”).  The letter was written the day after the husband gave evidence before the RRT on 8 October 2002.

8                     No such letter was sent to the husband containing particulars of any inconsistencies between the husband’s evidence and the wife’s evidence.  The wife gave evidence before the RRT on 23 January 2003.  The RRT’s reasons record that the husband attended as an observer on that occasion.  The RRT said:-

“The Applicant husband attended as an observer, but was still presented with an opportunity to provide his perspective as to the consistency of his wife’s evidence, and his comments have been considered.”

9                     The substantial question which arises here is whether the RRT complied with s 424A of the Act by failing to provide particulars of information about inconsistencies between the husband’s evidence and that of his wife and his colleagues which the RRT took into account in its reasons and, if so, whether this amounted to jurisdictional error. 

10                  There is a further question as to whether the RRT’s decision can be said to be so illogical as to give rise to jurisdictional error. 

The Claims

11                  Before they came to Australia, the husband and the wife lived in Chennai in the Tamil Nadu State.  They claimed some social links to the DMK Political Party which has been the leading opposition party in Tamil Nadu since it was defeated in elections in May 2001.  The wife also claimed to be related by marriage to Mr Karunanidhi.

12                  There was no suggestion that their support of, or association with, the DMK Party gave rise to any fear of persecution per se.  The husband’s claim was that he feared persecution from the DMK which did not want him to testify against it as to his involvement in the work and from the AIADMK which was the ruling party.  His claimed fear was that the AIADMK would use the police and the courts to get revenge against him for his involvement.  The wife’s fear was that she would be targeted by the AIADMK because of what her husband did.

13                  As I have said above, the applicants’ claims turned on the events which flowed from the arrest of Mr Karunanidhi and the alteration of the film footage.  Those events occurred on 29-30 June 2001 at the studios of Sun TV which is an independent television station owned by the family of a former DMK Minister, Mr Murasoli Maran (“Mr Maran”).  It seems clear from the RRT’s decision that the TV footage was edited so as to create a false impression of police violence.  The question before the RRT was whether the husband was involved and, if so, whether this gave rise to a Convention related fear.

14                  The husband did not work for Sun TV.  He claimed that in the early hours of the morning of 30 June 2001, he received a telephone call from Mr Maran’s son to come to Sun TV’s studios. 

15                  The husband’s written statement described the arrest of Mr Karunanidhi on the evening of 29 June 2001 and also described the capture of the arrest on video by Sun TV’s cameras.

16                  The husband said in his written statement that Mr Maran’s son asked him at 3 am on 30 June 2001 to come to Sun TV’s studios “with two of my colleagues” who were named  and described as vastly experienced graphic designers.

17                  In its narration of the husband’s claims, the RRT stated that in his “primary application” the husband claimed that he and his colleagues “were all summoned” at the same time to Sun TV.  The RRT contrasted this with his oral evidence that Sun TV contacted him first.  The RRT observed that this evidence was not merely inconsistent with the evidence of his colleagues but it was also “internally inconsistent”. 

18                  The inconsistency which the RRT gleaned from the evidence about the contact from Sun TV given in the applications made by the husband’s colleagues was not referred to in the s 424A letter. 

19                  According to the husband’s written statement, Mr Maran’s son asked him at the TV studio to alter the footage as follows:-

“Using your skills, we want you to edit the footage in such a way that it gives the viewer an impression that the police forcibly enters Karunanidhi’s bedroom by breaking the door lock and man handling him.  We want you to erase the fact that it was the servant who pushed our leader.  Instead we want you to help us show that it was the police who assaulted Karunanidhi.”(emphasis added)

20                  The husband’s written statement said that he and his colleagues agreed to do the work, that they started around 4:30 am and completed it “using AVID in just over an hour”.  AVID is a digital cutting, pasting and dissolving system.  The husband’s written statement did not specify the number of AVID machines which were used but the RRT’s reasons state that the husband claimed that each of his colleagues worked “on one of the station’s two AVID editing units”.  This seems to have been based on the husband’s oral evidence when he appeared before the RRT. 

21                  The RRT referred in its reasons to the fact that the husband’s colleagues stated in their applications that they worked together on one AVID machine.  This was one of the inconsistencies between the husband’s evidence and that of his colleagues to which the RRT drew the husband’s attention in the s 424A letter.

22                  The RRT referred to the husband’s written evidence of the alterations which were made to the film footage.  The RRT said that the husband asserted that his colleagues altered it “under his supervision”.

23                  The husband’s written statement did not say that he had supervised his colleagues.  It is possible that the RRT believed he gave that evidence orally.  However, the husband told me that he had not done so.

24                  Counsel for the Minister conceded that the way in which the RRT described the husband’s evidence on this question, ie that the work was done under his supervision, appears to be erroneous.  Nevertheless, the RRT stated that neither of the husband’s colleagues claimed to be working under the husband’s supervision.  The RRT then said that their evidence was at odds with the husband’s claims in this seemingly important aspect.

25                  The s 424A letter made no reference to “supervision”.  It did say that in the husband’s evidence before the RRT, “it was the other applicants, ie his colleagues who performed the editing work rather than yourself”.  However, this is not the same as performing work under the husband’s supervision.

26                  The husband said in his written statement that after the edited footage was aired there was a public outcry with protests by DMK supporters all over Chennai.

27                  The husband also said in his statement that, as at that time, he and his two colleagues were getting ready for a trip to Australia which they had been planning for some time.  Indeed, the husband and his colleagues obtained their visas for the trip on 26 June 2001, three days prior to the arrest of Mr Karunanidhi.  The husband said that this was purely a coincidence. 

28                  The husband claimed that, notwithstanding the public outcry over the TV footage, he was unaware that the police were looking for him.  However, the husband said in his statement that, on 16 July 2001, he and his colleagues were interrogated by the police, threatened and detained for some hours.  They were released according to the statement after the husband’s father went to the police station “and demanded that we three should be released immediately”.

29                  The RRT pointed to evidence given by one of the husband’s colleagues in Case N01/40690 that “an influential relative” negotiated the release.  This was said by the RRT to be another inconsistency with the husband’s evidence but it was not referred to in the s 424A letter.

The Section 424A Letter

30                  I have referred to this in setting out the husband’s claims.  I will not quote extensively from it but I will record the substance of it.

31                  The RRT commenced by stating that, at the hearing on the previous day, the husband was given information which would, subject to any comments he made, be a reason for deciding that he was not entitled to a protection visa.  The RRT then stated that it raised at the hearing that it had heard substantially different accounts of what took place on the night of 29-30 June 2001.

32                  The RRT went on to say that the husband had claimed that the videotape was altered digitally with digital erasures and digital interpolation in addition to having extraneous footage added.

33                  The RRT pointed out that the husband’s colleagues denied in their applications that they performed any kind of erasures “within the frame”; rather their claims were that they were involved in “cutting in” additional extraneous footage and cutting out other footage. 

34                  The RRT observed that there was inconsistency between the husband ‘s evidence and that of his colleagues on this issue. 

35                  As noted above, the RRT stated that the husband claimed that his colleagues performed the editing work.  The RRT then referred to the husband’s claim that his colleagues used separate AVID units whereas they claimed to have worked on one machine.

36                  The RRT then said:-

“When the Tribunal put it to you at the hearing that your evidence was different from that of the other applicants, you appeared to change your evidence, saying that the other applicants performed different technical tasks on the different segments on which they worked.  The Tribunal is concerned that this is a significant revision of your earlier claim.”

37                  The husband was invited to comment on 1 November 2002.  He did so in a letter dated 30 October 2002.

The Decision of the RRT

38                  The RRT was critical of many aspects of the evidence of the husband and the wife.  It is not necessary to set out these criticisms in detail.  It is sufficient to say that they included matters such as inconsistencies between the evidence of the husband, the wife and the husband’s colleagues, the reason why Sun TV would have used “outsiders” rather than its own staff and the question of whether the TV broadcast was anything more than a minor incident over a “bit of selective and biased TV reporting”.

39                  Notwithstanding its criticisms, the RRT expressed a reluctance to “pick over the many credibility problems in the evidence”.

40                  Initially, the RRT thought it was unnecessary for it to resolve the credibility issues because it characterised the claim made by the husband as a purely criminal matter.  It said:-

“If the Tribunal were to accept the bulk of the Applicants’ claims at face value, it would have to conclude on their testimony that, if at all, the police in TN were only seeking the Applicant husband in relation to a purely criminal matter: the doctoring of evidence against them, and not because he supports or has assisted the DMK.  As discussed, this is not something that can attract relief in the present jurisdiction, for it has nothing to do with the Convention category of ‘political opinion’ and everything to do with the crime of fraud.”

41                  However, the RRT then “recalled” that the husband made two other claims which were related to the Convention.  These claims were first, that the AIADMK would manipulate the police to obtain revenge against the husband and the wife over the alteration of the video footage and, second, that the DMK would harm the husband and wife in order to prevent them being witnesses against the DMK.

42                  The RRT dismissed those claims in the following passage:-

“However, the Tribunal is not satisfied on the evidence before it that the Applicant was ever involved.  His evidence is internally inconsistent, and in many key aspects, as shown earlier, it clashes with the evidence of his wife and of his so-called accomplices (eg., over who was first contacted by Sun TV, the number of AVID units, the identity of the person who got them out of custody, and how the Applicant wife became aware of the affair)  His evidence is also implausible in the details (the reason why Sun TV did not use its own staff, and the reason why the DMK thought it could rely on him)  In addition, his claims are not supported by the independent reports (which indicate that Sun TV was only accused of selective footage).”

43                  Thus, the RRT, having found that the husband was not involved in the incident at all, it did not accept that he had any reason to fear persecution at the hands of the AIADMK or the DMK. 

44                  The RRT also observed that the husband had come to Australia nearly twelve months before his wife without making any arrangements for her to accompany him.  The RRT was of the view that this undermined his overall position.

45                  This view of the husband’s credibility was apparently based on what the RRT said earlier in its reasons about the “coincidence” that the husband and his colleagues were planning to come to Australia in any event.  The RRT said:-

 “As far coincidences go, this one struck the Tribunal as being quite a great one, for the Applicants were already planning a holiday in Australia, without their wives, before all three were summoned together to Sun TV, as the other applicants claimed, or before the Applicant husband alone was called; and in his version of events, the talent needed for the job ay Sun TV just happened to be in the hands of the two friends together with whom he was intending to travel to Australia  All three applicants had visas for Australia issued before they decided to flee India  This coincidence greatly strains the credulity of the Tribunal, particularly in light of other internal inconsistencies in the Applicant husband’s evidence, inconsistencies between his claims and the Applicant wife’s, internal inconsistencies in her own claims, and inconsistencies between what the Applicant husband and the other applicants have claimed.”

46                  The RRT concluded that the husband and his two colleagues came to Australia for reasons which existed before 29-30 June 2001 and that these reasons had nothing to do with the Convention.  The RRT also found that the wife’s journey to Australia was an opportunistic bid to exploit the husband’s application for a protection visa.

47                  The RRT concluded that the husband’s lack of credibility in his own case left the wife’s case greatly compromised.  But the RRT also found that the wife was an unreliable witness due to internal inconsistencies which she introduced in the course of giving evidence.

Decision

48                  The first question which arises is whether the RRT brought to the husband’s attention the reasons on which it based the finding that the husband was not involved in any alteration of the film footage. 

49                  It is evident from the passage at [42] that the RRT had four reasons for making the finding.  These were, first that his evidence was internally inconsistent, second that his evidence was inconsistent in the respects stated with that of his wife and his colleagues, third that his evidence was implausible and fourth that his claims were not supported by independent reports.

50                  Of these four reasons, only the second, ie inconsistency with the evidence of his wife and his colleagues, gives rise to any question of contravention of s 424A.

51                  The inconsistencies in the evidence of the husband’s colleagues to which the RRT pointed in the passage at [42] were threefold: first, who was initially contacted by Sun TV, second, the number of AVID units and third, the identity of the person who secured the release of the parties from custody.

52                  These three inconsistencies were said by the RRT to be examples of inconsistencies between the husband’s evidence and that of his colleagues on many key aspects of the claim.

53                  It would appear that there was at least one other inconsistency with the evidence of the husband’s colleagues which troubled the RRT.  This was that, according to the RRT, the husband had asserted that his colleagues did the work under his supervision.  As I said at [24], the Minister’s counsel conceded that this appears to be an incorrect characterisation of the husband’s evidence.

54                  The RRT notified the husband in the s 424A letter of the inconsistency in the evidence as to the number of AVID units on which his colleagues worked.  Accordingly, there can be no suggestion of any breach of procedural fairness on the part of the RRT to put this factor to the husband.

55                  Somewhat curiously, the RRT seems to have taken into account as a reason for rejecting the husband’s claim the fact that his evidence as to the number of AVID units was inconsistent with the evidence of his colleagues notwithstanding that the RRT regarded their evidence as implausible. 

56                  The relevant passage is as follows:-

“Although the Applicant husband claimed that his colleagues each went to work on a separate AVID unit, they each claimed that they worked together on one.  When the Tribunal queried with one of the other applicants how an AVID editing unit could possibly be operated by two people at once, that Applicant reinforced his position about their having operated only the onemachine together, saying that one of them fed in the data whilst the other worked on it  This sounded implausible since the AVID unit is evidently capable of storing its own data, but much more to the point, the Applicant husband’s evidence was at odds with that of his supposed accomplices”

57                  This suggests that one plank in the RRT’s reasons, namely the inconsistency between the husband’s evidence and that of his colleagues as to the number of AVID units, may be open to attack as illogical; see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“S20”).

58                  However, it seems to me that the RRT’s remark about the implausibility of the evidence of the husband’s colleagues in the passage set out at [56], may not have been an expression of the RRT’s final view on that question.  Accordingly, whatever the limits of the illogicality ground, it would not be possible to make a finding of illogicality in the present case without seeing the RRT’s reasons for decision in the other two cases.  That evidence was not before me. 

59                  The evidence of the husband’s colleagues as to how and when they were requested to come to the studios of Sun TV was not an issue to which the RRT referred in the s 424A letter.  As I say below at [60], the husband’s oral evidence was that he was contacted before his colleagues.  Although there was no reference to the evidence of his colleagues in the RRT’s reasons, it appears that the colleagues gave different evidence which was not the subject of the s 424A letter. 

60                  This appears from the following passage:-

“However, in evidence given at the RRT hearing on 8 October 2002, the Applicant husband said that Sun TV contacted him first and that he made the decision to take his two editor colleagues with him, because he felt they would be more skilled than he was at using the AVID equipment  In this later evidence, very obviously, the Applicant husband supposedly already knew what the task ahead was, i.e., before he arrived, before he was shown the video footage and, in addition, before he, not Sun TV, decided to summon the other two.  It is important to note that the Applicant husband’s evidence is not merely inconsistent with that of his alleged colleagues, whose claims were presented in RRT cases N01/40689 and N01/40690, but is internally inconsistent.”

61                  Nor was there any reference in the letter to the question of the identity of the person who secured the release of the husband and his colleagues.

62                  It is true that the s 424A letter states that the husband gave evidence that he did not do the editing work and that the work was performed by his colleagues.  But I do not think that the letter informed the husband that a reason for affirming the delegate’s decision was that he had asserted that he supervised his colleagues whereas they denied that he had done so.

63                  It follows that the s 424A letter failed to identify three inconsistencies with the evidence of the husband’s colleagues on which the RRT relied as reasons for finding that he was not involved in the alteration of the film footage.  These were, who was first contacted by Sun TV, the identity of the person who secured the release and whether the husband supervised his colleagues.

64                  There was also no suggestion that these inconsistencies were put to him orally, eg  at the hearing on 8 October 2002, so as to enable the husband to comment on them.

65                  The only inconsistency in the evidence of the wife to which the RRT pointed in the passage at [42] was as to how the wife became aware of the alteration of the footage.

66                  This “inconsistency” was merely an example of the inconsistencies between the evidence of the husband and the wife which the RRT relied upon to make a finding that the husband was not involved in the affair.

67                  As I have already said, there was no written notification to the husband of any inconsistency with the wife’s evidence.  Thus, no written particulars of information which the RRT apparently considered to be a reason or part of a reason for affirming the delegate’s decision were supplied in accordance with s 424A.

68                  It is true that the RRT stated that the husband was given an opportunity to comment upon “the consistency of his wife’s evidence”.  But there is nothing in this to suggest that the RRT drew his attention to the particular respects in which the RRT considered that the wife’s evidence was inconsistent with the husband’s.

69                  Rather, the passage at [8] seems to me to indicate that the husband was given no more than an opportunity to comment generally on the consistency of his evidence with the evidence given by the wife at her hearing. 

70                  In the absence of anything which shows that the husband’s attention was drawn to particular answers in the wife’s evidence which the RRT regarded as inconsistent with and adverse to the husband’s claim, I do not consider that the RRT can be said to have complied in a substantive sense with s 424A(1).

71                  The question which then arises is whether the failure of the RRT to supply to the husband particulars of the three inconsistencies with his colleagues’ evidence and the inconsistency with his wife’s evidence constituted jurisdictional error.

72                  In Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102, a Full Court (Carr, Kiefel and Allsop JJ) held at [23] that a failure to provide information in the manner referred to in s 424A(2) did not, in the absence of any unfairness of a substantive or procedural kind, constitute jurisdictional error.

73                  However, this case is not authority for the proposition that a failure to comply with the substantive requirements of s 424A(1) does not amount to jurisdictional error.  Indeed, the Court observed at [23] that quite different considerations might attend the analysis of the question where there is a breach of s 424A(1).

74                  In my opinion, a breach of s 424A(1) is capable of constituting jurisdictional error because, as Allsop J said in NADN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 572 (“NADN”) at [34], this section can be seen as a surrogate for natural justice; see also Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [39] per Merkel J (“Al Shamry”).

75                  It is well established that a breach of the rules of natural justice amounts to jurisdictional error; see Plaintiff S157/2002 v The Commonwealth (2003) 77 ALJR 454. 

76                  Here, s 424A(1) was breached in the four respects which I have stated.  The adverse information, which consisted of evidence which the RRT regarded as inconsistent with the husband’s evidence, was not put to him.  It was not put to him in a written communication in accordance with s 424A(2) and it was not put to him at the hearing.

77                  As Merkel J said in Al Shamry at [41], the beneficial purpose of s 424A is to afford an applicant the opportunity to respond to the gravamen or substance of any adverse information upon which the RRT proposes to act, the significance of which the applicant may be unaware. 

78                  This opportunity was not provided to the husband.  Accordingly, the substantive requirements of s 424A(1) were not met.  Ordinarily, this would amount to jurisdictional error. 

79                  But the question which then arises is whether the husband must establish that the breach of the substantive provisions of s 424A(1) denied him the possibility of a successful outcome.  In Al Shamry, Merkel J said at [42] that in a case such as this an applicant “may” be required to satisfy the Court of this.

80                  In my opinion, the better view is that it is necessary to determine the question of whether the denial  of the opportunity could have made a difference; see Re Refugee Review Tribunal; Ex parte Aala (2000)204 CLR 82 (“Aala”).  Any approach to s 424A must proceed on the footing that its purpose is to ensure that natural justice is afforded to an applicant but, as Gleeson CJ said in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 at [37], natural justice is essentially practical.  To ignore the question of whether a breach of s 424A could not have affected the outcome would be an entirely impractical approach.

81                  Thus, it seems to me that the RRT’s decision would not be vitiated if I were of the view that the denial of the opportunity to the husband to deal with the inconsistencies made no difference to the outcome; see Aala.

82                  If I were of the view that the four reasons given by the RRT for its finding that it did not believe the husband were separate and independent reasons, it may follow that the failure to comply with s 424A could not have made a difference.  That is to say, there would be three reasons given by the RRT which each in its own right was put forward as a separate reason why the RRT did not believe the husband’s claim.  These reasons may then be thought not to have been affected by the need to comply with s 424A.

83                  However, I used the expression “may follow” deliberately because even if the other reasons were separate and independent, it does not necessarily follow that the RRT would have reached the same conclusion on the ultimate question if one of the planks in its reasoning process was removed.  As Kirby J said in Aala at [131] , it is not an easy task to convince a court that the requirements of procedural fairness “could have made no difference” especially where the issue concerns the acceptance or rejection of the testimony of a witness.

84                  It is difficult to determine whether the so-called internal inconsistencies in the husband’s evidence were separate reasons from the clashes which the RRT saw in the third party evidence.

85                  An example of this difficulty is the evidence of who was first contacted by Sun TV or, perhaps more accurately, whether the husband was contacted first or at the same time as his colleagues and whether he made the decision to take them with him.  The RRT said, earlier in its reasons, that the husband’s evidence on this issue was inconsistent with that of his colleagues and internally inconsistent.

86                  On a fair reading of the passage at [42], I am of the view that the internal inconsistencies cannot be treated as a separate and independent reason from the third party inconsistencies for the finding that the husband was not involved.

87                  However, it does seem to me that on a fair reading of the passage at [42], the third and fourth reasons were quite separate from the reason that the husband’s evidence was inconsistent in the various respects stated by the RRT.

88                  The third reason was that the husband’s evidence was “also implausible” in its details, ie, as to why Sun TV used an outsider rather than its own staff.  This was a finding of implausibility about the very basis of the claim.  The RRT’s view was that it could not accept that Sun TV would have been prepared to use the husband and his colleagues to do the work when it apparently had qualified people at its own studios. 

89                  This finding, which went to the central question of whether the husband was involved, was then put forward by the RRT as one of the reasons for deciding that question against the husband.  The RRT’s view of implausibility was not based on inconsistencies in evidence.  It was concerned with probabilities.  It was a view which the RRT reached independently of the first two reasons. 

90                  So too was the fourth reason, ie, the independent reports that Sun TV was accused of selective footage rather than, as the husband apparently claimed before the RRT, falsified additional footage.

91                  However, in my opinion, there is a real question as to whether the fourth reason was irrational, illogical and not based on findings of inferences of fact supported by logical grounds; see S20 at [34] per McHugh and Gummow JJ.

92                  Nowhere in the RRT’s reasons is there to be found a clear statement of the distinction between editing, selective footage and interpolation of falsified material.  It seems to me that the digital insertion of falsified material could well include the use by experts in the field of video editing of material out of sequence in order to create a false impression for the viewer. 

93                  It may well be, as Gleeson CJ said in S20 at [20] that “illogicality is a protean concept” and, at [7] that precision as to the nature and quality of the error is required.

94                  Here, the difficulty in endeavouring to fit the RRT’s fourth reason into the illogicality ground is that it would be necessary to consider very carefully the husband’s oral evidence of the alterations which he said were made to the video footage against the RRT’s “selective footage” label. 

95                  In the absence of that oral evidence, which was not before me, I could do no more than describe the RRT’s fourth reason as illogical in the sense of “an emphatic way of expressing disagreement with it”; S20 per Gleeson CJ at [5].

96                  The above analysis shows that of the four reasons given by the RRT for disbelieving the husband, only two can be seen to be independent of the “inconsistency” ground.

97                  It is true that the third reason, implausibility, appears on its face to have been one which the RRT could have relied upon as a single independent reason for rejecting the husband’s claim on credibility grounds.  But in coming to a view on the question of whether the husband was involved in the “doctoring” of the footage, it seems to me to be inevitable that the RRT’s mind would have been influenced by the view that it believed there were four reasons for disbelieving the husband’s claim. 

98                  Accordingly, I have come to the view that I cannot say that the failure to comply with s 424A could not have made a difference to the outcome of the husband’s application.  This is because it is not possible to say that the result could not have been different if the RRT were left with only the third and fourth reasons rather than all four of the reasons set forth in the passage at [42].

99                  In coming to this view, I have taken into account a submission made by the Minister’s counsel that the RRT also relied upon its finding that it could not accept the “coincidence” that the husband and his colleagues had already obtained their visas for Australia before the events at the studios of Sun TV.

100               This was a “coincidence” which the RRT found greatly strained “the credulity” of the RRT but, in making that finding, the RRT took into account the internal inconsistencies which it saw in the husband’s claim and the inconsistencies between the husband’s evidence and that of the third parties.

101               Thus, in my view, it is not possible to separate the finding that the 26 June 2001 visa was not a coincidence from the failure to comply with s 424A.

102               I would therefore propose to set aside the RRT’s decision on the husband’s application. 

103               There is nothing to suggest that the finding which the RRT made that the wife was not a reliable witness was not open to it.   The husband submitted that there was no inconsistency in his wife’s evidence but no material was put to me to enable me to make that finding.  Her application must therefore be dismissed.  But the fate of her claim for protection will depend upon whether the husband succeeds when his application is determined according to law.

Orders

104               The orders which I propose to make are that the husband’s application is allowed and that the matter is to be remitted to the RRT to be determined according to law.  I will also order the Minister to pay the husband’s costs of the application.

105               For the reasons set out above, the wife’s application must be dismissed with costs.

Associate:

Date                 11 July 2003