Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16 (22 February 2006)

FEDERAL COURT OF AUSTRALIA
Applicant M164/2002 v Minister for Immigration & Multicultural
& Indigenous Affairs [2006] FCAFC 16

MIGRATION – protection visa – appeal from Federal Magistrates Court order dismissing application for constitutional writs to quash decision of Refuge Review Tribunal – whether inquisitorial function of Tribunal duly performed – whether Tribunal failed to provide procedural fairness to appellant – whether "jurisdictional error" in Tribunal’s decision.

Migration Act 1958 (Cth), ss 5, 36(2), 65, 420, 422B, 424, 424A, 425, 427(1)(d), 430, 474, 476,
Migration Legislation Amendment Act (No 6) (2001) (Cth), s 91R
Migration Legislation Amendment (Procedural Fairness) Act (2002) (Cth) Item 7 of Schedule 1

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 followed
Applicant VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72 followed
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 followed

C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366 referred to
Canada (Attorney-General) v Ward (1993) 103 DLR (4^th) 1

Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 referred to
Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 followed
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 followed
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 769; (2001) 109 FCR 397 followed
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 followed
Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 referred to
Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11; [2000] 3 All ER 449 cited
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 followed

Minister for Immigration and Multicultural and Indigenous Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533 followed
Minister for Immigration and Multicultural and Indigenous Affairs v Singh (1997) 74 FCR 553 referred to
Minister for Immigration and Multicultural Affairs v Y [1998] FCA 515 referred to

R v Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 WLR 242 referred to

Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 173 followed

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 followed

Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 referred to
Reg (Dirshe) v Home Secretary (2005) 1 WLR 2685 referred to
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 discussed

Saliba v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 38 referred to
V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355 referred to
W68/01A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 148) referred to
W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; (2002) 185 ALR 703 referred to
WALS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1642 referred to

Professor Goodwin-Gill ("The Refugee in International Law" Oxford (2^nd Edn)

APPLICANT M164/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

V794 OF 2004

LEE, TAMBERLIN & DOWSETT JJ
22 FEBRUARY 2006
PERTH (Heard in Melbourne)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V794 OF 2004

BETWEEN:	APPLICANT M164/2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	LEE, TAMBERLIN & DOWSETT JJ
DATE OF ORDER:	22 FEBRUARY 2006
WHERE MADE:	PERTH (Heard in Melbourne)

3. The first respondent pay any costs incurred by the appellant.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V794 OF 2004

BETWEEN:	APPLICANT M164/2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	LEE, TAMBERLIN & DOWSETT JJ
DATE:	22 FEBRUARY 2006
PLACE:	PERTH (Heard in Melbourne)

1 This is an appeal from an order made by the Federal Magistrates Court on 30 January 2004 that an application by the appellant for the issue of prerogative or constitutional writs and for declaratory and injunctive orders against the first respondent (the Minister) and the second respondent (the Tribunal) be dismissed.

2 The appellant filed the application in the High Court in September 2002. The application named two members of the Tribunal as second and third respondents. The High Court remitted the proceeding to this Court in February 2003. In May 2003 the Court transferred the matter to the Federal Magistrates Court for hearing. Inadvertently the second and third respondents became omitted from the title of the proceeding in the Federal Magistrates Court. On the hearing of the appeal and with the consent of the parties it was ordered that the title of the proceeding be amended by inserting the Tribunal as second respondent in place of the officers of the Tribunal. (See: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162).

3 It is to be noted that when the appeal first came on for hearing before another Full Court in May 2005 the Court adjourned the hearing and ordered that "pro bono publico" representation be obtained for the appellant pursuant to Order 80 of Rules of the Federal Court in order that the appellant received appropriate advice and the Court assisted on issues that appeared to the Court to be material to the disposition of the appeal. Unfortunately when the hearing of the appeal was resumed the appellant appeared in person and the Court did not receive the assistance intended by the earlier order, namely, submissions on the appellant’s case prepared by a legal practitioner.

5 On 14 August 2000 the appellant, her husband and two children (then aged 7, 4) all citizens of Sri Lanka, entered Australia on a visa which permitted the appellant and her family to reside in Australia for one month. The visas had been obtained in Sri Lanka for the purpose of visiting a relative residing in Australia.

6 On 13 September 2000 a migration agent instructed by the appellant lodged an application for the grant of a "protection visa (866)". The husband and the two children were said to be persons "included" in the application as members of the family unit who did not have a personal claim to be a refugee. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 769; (2001) 109 FCR 397 at [16]- [25]).

7 The visa application form required the appellant to state why the appellant left Sri Lanka; what the appellant feared would happen if she returned to Sri Lanka; who did the appellant think would harm or mistreat her if she went back to Sri Lanka, and why; and whether the appellant thought the authorities of Sri Lanka can and would protect her if she returned to Sri Lanka. The appellant provided detailed responses to those questions in separate typewritten replies attached to the application form.

8 Item 15 of the application form asked the appellant to "list all the documents you are not providing with this application, but will be providing later (for example, certified copies of passports, birth certificates, evidence of dependency)". In response to that request the application form was completed, apparently by the migration agent, as follows:

9 The appellant informed the Court that the appellant and her husband had brought the documents from Sri Lanka and had handed them to the migration agent. The appellant assumed that the agent would supply the documents, or copies thereof, to the Minister’s Department.

10 It appears that the Department had not received the documents by the 24 October 2000 when a delegate of the Minister decided that the appellant’s application for a protection visa be refused. The papers before the Court do not indicate whether the appellant was invited to attend an interview before the delegate made that decision. If such an interview were conducted it is unknown whether the appellant was represented at that interview or whether the interview proceeding was recorded. (See: Reg (Dirshe) v Home Secretary (2005) 1 WLR 2685).

11 On 24 November 2000 an application was made to the Tribunal for review of the Minister’s decision. The application was lodged by the migration agent on behalf of the appellant.

12 There matters appeared to rest for approximately 18 months and the appellant awaited further advice from the Tribunal. On 14 May 2002 by a letter sent to the migration agent, with a copy to the appellant, the Tribunal invited the appellant to attend a hearing to be conducted by the Tribunal on the 3 July 2002 at which the appellant could give "oral evidence". The appellant was also asked to forward to the Tribunal any "new documents" that the appellant would like the Tribunal to consider. On 25 June 2002 the migration agent sent to the Tribunal a lengthy letter in the form of a submission on the appellant’s application for review and enclosed copies of a number of documents, described as follows:

13 As discussed later in these reasons there were more documents before the Tribunal than described above. It was not suggested that further documents were submitted after that letter.

14 The Tribunal conducted a hearing on 3 July 2002 at which the appellant and her husband gave oral testimony on oath and provided responses to questions put to them by the Tribunal. On 25 July 2002 the Tribunal affirmed the decision of the delegate that the grant of a protection visa be refused.

15 The papers placed before the Court on the hearing of the appeal included the transcript of a recording of the hearing conducted by the Tribunal on 3 July 2002. Parts of the recording are stated by the transcriber to be inaudible and, accordingly the transcript is incomplete.

16 According to that transcript the Tribunal asked the appellant why the documents the appellant brought to Australia had not been submitted "initially". The appellant said she had submitted them and did not know what had happened. The Tribunal asserted that she had not. The appellant informed the Court that she advised the Tribunal that she had passed the documents to the migration agent at the time the application for a protection visa was lodged. The relevant parts of the transcript in that regard are said by the transcriber to be indistinct. The limited transcribed portion, however, is not inconsistent with the appellant’s account. Whether the migration agent was present at that point is unknown but the transcript does record a discussion between the migration agent and the Tribunal that took place shortly thereafter. No questions were put to the agent by the Tribunal as to when the documents forwarded to the Tribunal on 25 June 2002 had been received from the appellant.

17 The appellant’s application for a protection visa was based on a claim that the lives of the appellant and her husband, and of their children, had been threatened by the Sri Lankan separatist movement Liberation Tigers of Tamil Elam ("the LTTE").

18 The appellant’s claims were contained in the written responses attached to the visa application referred to above and in oral replies given by the appellant to questions put by the Tribunal at the hearing conducted on 3 July 2002. Those accounts may be summarised as follows. At the beginning of April 2000 the appellant and her family were residing in an apartment block in Colombo. At about that time the appellant’s husband alerted police to what appeared to be furtive activities by occupants of another apartment in the block. Police searched the apartment and found documents which indicated that the premises were being used by supporters of the LTTE. On the 4 April 2000, acting on that information, police arrested four persons suspected of being involved in terrorist activity.

19 On 5 April 2000 the appellant and her husband received telephone calls which threatened death to the family if the appellant’s husband continued to "interfere". The threat was reported to police by a telephone call. On several occasions thereafter the appellant received similar calls at her place of employment, the United States Embassy.

20 In fear of their lives the appellant and her family moved out of their apartment to live with different relatives and came back to the apartment only to collect mail.

21 On 20 April the appellant and her husband received a written threat purporting to be from "LTTE Headquarters". The appellant’s husband attended at a police station to make a further complaint to the police upon receipt of that letter.

22 Further threats and harassing conduct occurred during May. On one occasion a personal threat was made to the appellant whilst she was travelling to work on a bus. Another written threat, again purportedly from "LTTE Headquarters", was received in the same month. The appellant and her husband then sought assistance from a cousin residing in Australia who provided documents that supported the grant of a visa to the appellant and her family to permit them to travel to Australia as visitors. Those visas were issued on the 9 June 2000 and the appellant and family left Sri Lanka on 13 August 2000.

23 At the time the appellant applied for a protection visa the Migration Act 1958 (Cth) ("the Act") provided, in s 65, that if the Minister is satisfied that the prescribed criteria for a visa have been satisfied, the Minister is to grant the visa applied for, but if not so satisfied the grant of the visa is to be refused. The prescribed criterion of principal relevant to this application was that set out in s 36(2) of the Act, namely, that the applicant be "a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

24 In s 5 of the Act the terms "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The phrase "protection obligations under the [Convention]" is not defined in the Act and is not a term used in the Convention.

25 The Convention is a treaty under which the "Contracting States" thereto have agreed to apply the provisions of the Convention to "refugees". Australia is a Contracting State. Sub-Article 1(A) of the Convention provides the following definition of "refugee":

26 Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the appellant.

27 As a Contracting State, Australia has accepted the obligations imposed upon it by international law by reason of its accession to the Convention. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of those obligations may come within a broad meaning of "protection obligations under the [Convention]" but, having regard to the purpose of s 36(2), that phrase may be taken to refer to the particular obligations Australia has accepted not to penalize, or restrict the movement of, a refugee who has entered Australia without authority (having come directly from a territory where the life or freedom of that person was threatened for a Convention reason) and not to expel or return a refugee to such a territory.

28 The decision of the delegate on 24 October 2000 that the grant of a protection visa be refused was based on the delegate’s conclusion that any persecution feared by the appellant was not persecution "for a Convention reason".

29 On 1 October 2001 the Migration Legislation Amendment Act (No 6) (2001) (Cth) ("the Amending Act") introduced s 91R to the Act the relevant provisions of which read as follows:

30 Whether the provisions of s 91R can be said to be consistent with the obligations Australia has undertaken as a Contracting State under the Convention is not an issue raised in this proceeding.

31 Pursuant to a transitional provision in Item 7 of Part 2 of Schedule 1 of the Amending Act, s 91R applies to an application for a protection visa made before 1 October 2001, where:

32 Although the application to the Tribunal for review of the delegate’s decision was made on 24 November 2000 the decision by the Tribunal was not made until 25 July 2002 and, therefore, the provisions of s 91R applied to the application at the time of the Tribunal’s decision.

33 In its reasons for decision the Tribunal set out the requirements of s 91R. The Tribunal did not determine that the application for review had to fail in any event by reason of the operation of that section. It is to be assumed, therefore, that the Tribunal was satisfied that if the appellant’s claims were accepted the requirements of s 91R would be met, in that it would be established that the appellant had a well-founded fear of being persecuted (as that term is to be understood by operation of s 91R) for a reason specified in the Convention.

34 On the hearing of the appeal the Minister did not contend that the Tribunal erred in that regard. However, in the course of argument some attention was given to the question whether, if the appellant’s claims had been accepted by the Tribunal, there would have been a "Convention reason" for the feared persecution. It is appropriate to say something about that issue.

35 It is the appellant’s argument that she fears persecution for reason of political opinion imputed to her by the LTTE. If the appellant’s claims were accepted it would seem to follow that the reason for the persecution that had occurred, and may occur in the future, would be political opinion imputed to her by her persecutors.

36 The object of the LTTE is to gain a political result by armed insurrection and to further that object by instilling fear in the Sri Lankan community by acts of violence and, in particular, by assassinating persons politically opposed to the LTTE. The purpose of such acts is to suppress actual or potential opposition to the movement’s aims.

37 The events described by the appellant and attributed to the LTTE, would be consistent with the known manner of operation of that organisation. There would seem to be little cause to doubt that the described events could reflect a belief on the part of the LTTE that an informant against the LTTE would be a person opposed to the political aims of the movement.

38 Such a person may be seen by the LTTE to be acting pursuant to political opinion and to be a threat to the LTTE’s political objective. It would be irrelevant that, in fact, such a person held no political opinion, the perception of the persecutor being the relevant test. (See: Canada (Attorney-General) v Ward (1993) 103 DLR (4^th) 1 per La Forest J at 38-39; Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, 45-47; Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 173, 177-178; V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355; C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366, 372-375; Minister for Immigration and Multicultural Affairs v Y [1998] FCA 515; W68/01A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 148).

39 It would be an erroneous approach to treat the events of persecution described and said to have been conduct carried out on behalf of the LTTE, as criminal acts done by individuals without regard to the political considerations or motives of the LTTE. (See: Minister for Immigration and Multicultural and Indigenous Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533).

40 The claims of the appellant, therefore, were capable of demonstrating that the persecution feared by the appellant in future, if she were returned to Sri Lanka, was persecution for reason of perceived political opinion. The Tribunal did not err in so treating that material.

41 The role of the Tribunal in conducting a review under ss 414 and 415 of the Act was to assess whether, if returned to Sri Lanka, the appellant would have a well-founded fear of persecution for reason of political opinion. A fear of persecution is a well-founded fear if it is shown, by past events or by the prospect that such events may occur in future, that there is a risk that a person may suffer persecution if returned to the country of nationality. The risk is described as one that is real and not fanciful. It is not a requirement that the risk be measurable in a particular degree of likelihood or probability before the risk may be characterised as real. (See: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per McHugh J at 417).

42 The Tribunal, therefore, had to determine whether it would be possible that if the appellant were returned to Sri Lanka events involving the appellant may occur which would constitute persecution of the appellant. If so, the Tribunal would be satisfied that the appellant met the prescribed criterion and, pursuant to s 65(1) of the Act, the visa applied for had to be granted. If the material did not show that such a risk existed the visa had to be refused.

44 The Tribunal reached the conclusion that the appellant’s story was not credible by finding parts of the appellant’s claims to be "implausible". For the word implausible to be used in the foregoing sense it must mean without appearance of truth or acceptability. (See: Shorter Oxford English Dictionary, Oxford 3^rd Edn. "implausible").

45 The Tribunal said it was implausible that the names of the appellant and her husband would have been provided by police to persons suspected of involvement with the LTTE or that the makers of the threatening calls would have identified themselves to the appellant or her husband as members of the LTTE.

46 With regard to the first point it was not the appellant’s case that the police had so acted. The possibility that from time to time LTTE personnel in Colombo could obtain such information could not be discarded as absurd or fanciful. Furthermore, it may be thought to have been more likely than not that the makers of such threats would seek to have it understood that the calls spoke with the force of the LTTE. In any event the appellant did not assert that callers identified themselves as members of the LTTE. The appellant said that the calls were made by Tamils speaking in broken Sinhalese and that she and her husband assumed that the persons making the calls were associated with the LTTE.

47 The Tribunal then stated that it was "entirely implausible" that the police would give the names of the appellant and her husband to newspapers to identify them as informants against terrorists, the Tribunal concluding that on the appellant’s account there was "no other apparent conduit for such information".

48 It was not the appellant’s case that her name, or that of her husband, had been published in newspapers as police informants. Excerpts from newspaper articles were part of the material submitted by the migration agent to the Tribunal by the letter dated 25 June 2002. Those excerpts dealt, first, with an account of the arrest of LTTE members "as a result of information given by a resident in Maligawatte" and, second, with a complaint to Maligawatte police by a resident of Maligawatte, the appellant’s husband, to the effect that death threats had been received from a group of unidentifiable persons alleging that he had provided information to the police about "terrorist tigers". The Tribunal stated that the latter newspaper article indicated that the appellant’s husband had been the source of the newspaper report and noted that the appellant and her husband had denied to the Tribunal that they had had any contact with the newspaper. The Tribunal then said that having regard to the newspaper articles being undated and having no "newspaper banner"; and to the purported newspaper excerpts not being submitted by the appellant until June 2002; and to the appellant and her husband denying that the husband had been the source of a newspaper article that identified him; and considering "the contrived tone of the newspaper articles" (i.e. of English translations thereof) it found that the articles were "not genuine". It is not clear what the Tribunal meant by "contrived tone" of the translated items, the Tribunal providing no explanation thereof. Furthermore, the Tribunal did not address the inherent inconsistency in a finding that the appellant and her husband fabricated a newspaper article to assist their case when the material said to be concocted included an account that was at odds with the story they intended to present.

49 The Tribunal then referred to some inconsistencies between the accounts of the appellant and her husband, who gave evidence through an interpreter, as to the places at which they had lived after they left their home in Colombo to reside with various relatives before they departed for Australia in August 2000. That was a matter the Tribunal was entitled to take into account in assessing the truthfulness of the appellant’s claims, but in doing so the Tribunal would have to have regard to the fact that the differences in recollections concerned events that were said to have occurred more than two years previously. Such an inconsistency in recollection may be a pointer to a dishonest account but in the absence of other material able to support that conclusion it will be an unsatisfactory foundation for a finding that the whole of an applicant’s claims are untruthful. I will return to this issue later in the reasons when discussing the operation of s 424A of the Act.

50 The Tribunal then found that it was implausible that the LTTE would threaten harm to the appellant or her family and not carry out the threat. The Tribunal said as follows:

51 What the Tribunal sought to convey by that passage is not easily understood. Obviously a finding that a threat to cause harm had not occurred if the threat had not been carried out would be contrary to commonsense. Indeed it may be thought to have been well-known that the use of threats of harm by the LTTE was an important part of its operations. The knowledge of the recipient of such a threat that the LTTE has, as the Tribunal acknowledged, the capacity to carry it out, makes the use of such a threat a powerful weapon for the organisation to use in pursuit of its aims.

52 The Tribunal then turned to other documents relied upon by the appellant in support of her claims. The Tribunal described the documents as having been "belatedly submitted". Whether the Tribunal considered the documents to be objects of recent invention is not discussed. The Tribunal did not refer to any explanation provided by the appellant as to when she gave the documents to the migration agent for transmission to the Tribunal, discussed earlier in these reasons. The Tribunal stated that given the "lack of credibility of the [appellant’s] claims" concerning alleged threats by the LTTE all of the foregoing documents could be disregarded, describing them as "contrived and self-serving", "contrived in order to bolster false claims to refugee status", or "contrived in an endeavour to give credence to false claims of threats from the LTTE".

53 It is necessary to deal in detail with the foregoing documents. First, I turn to the documents discussed earlier in these reasons, namely, photocopies of purported extracts from pages of a Sri Lankan newspaper, or newspapers, printed in the Sinhalese language and including several photographs. English translations of excerpts from the extracts were provided. Obviously in the absence of further authoritative material the Tribunal may not have been convinced as to the authenticity of those extracts but the failure of the Tribunal to be convinced is not a determination on probative material that the documents are fraudulent.

54 The next documents are two printed warnings (with no addressee) on purported letterheads of the LTTE and dated 19 April 2000 and 9 May 2000. The warnings are printed in English and the documents bear the endorsement "(Released by the International Secretariat of LTTE, 211 Katherine Road, London E6 1BU, United Kingdom. Tel: 02085034294)". The LTTE maintained a secretariat at that address until February 2001 when it was declared to be a proscribed organisation in the United Kingdom. (See: DBS Jeyaraj "LTTE shifts headquarters from London to Wanni" www.lanka.net/sundayleader/ 2001/Mar/18/news.html). The Tribunal said it noted and gave weight to "the self-serving and contrived tone" of the document. The Tribunal found it implausible that the LTTE would issue a written warning and then fail to act on its threat. The Tribunal stated that the correspondence was "contrived and inconsistent with the actual behaviour of the LTTE" and concluded that it was "not genuine" and had "been produced in an attempt to underpin false claims to refugee status". What the Tribunal meant by the "self-serving and contrived tone" of the letters is not elaborated. The real foundation for the Tribunal’s conclusion appears to be its view that there could not have been a threat of harm to the appellant if the threat was not carried out and, therefore, the appellant had engaged in fraud and forgery in presenting the documents.

55 The appellant also relied upon a letter to the appellant from a preparatory school in Colombo dated 19 May 2000. It referred to a discussion between the appellant and the Headmaster of the school about threats to the safety of the appellant’s family. The Tribunal found this letter to have been "contrived in an endeavour to give credence to false claims of threats from the LTTE". What the Tribunal meant by that characterisation of the document is unclear but it appears to imply that an inference had been drawn by the Tribunal that the document had been fabricated by the appellant. It was not the Tribunal’s position that the document had been "contrived" by the school and the appellant jointly or that the appellant had made false statements to the Headmaster for the purpose of having the school construct such a letter. The letter purported to be on the letterhead of "S.Thomas’ Preparatory School" and set out the address and telephone number of the school and the name of the Headmaster. If the letter had been issued by the school the Tribunal’s assessment of credibility of the appellant’s claims was unlikely to stand.

56 At the hearing on 3 July 2002 questions put to the appellant by the Tribunal implied that the letter lacked authenticity in that the name of the school in the printed letterhead, in the English language, was plainly incorrect in that it used "S." as an abbreviation of the word "Saint". The Tribunal repeated that implication by applying the qualification "(sic)" to the name of the school when reciting it in the reasons. It is apparent that the Tribunal was prepared to treat the document as false by reason of the form of the letterhead, considering the perceived error to be a mistake that an institution of education would not make. The Shorter Oxford English Dictionary states that "S." and "St." are alternative abbreviations for "Saint".

57 The next document was a copy of a letter dated 10 April 2000 from the appellant’s husband to the Regional Telecom Engineer at Sri Lanka Telecom in Colombo. The letter identified a telephone number and referred to threats received on that number from a group of people, presumed to be members of LTTE, and stated that the children of the family had been affected by the calls. It requested that action be taken. The Tribunal also treated this document as "contrived to give credence to false claims". Again no facts relied upon for that finding were identified.

58 An additional document was a letter from tenants to whom the home of the appellant and her husband had been let by the appellant’s sister at some time after the appellant and her husband left Sri Lanka in August 2000. The letter is dated 2 August 2001 and refers to threats received by the tenants from unknown people, threats said to have been directed, in particular, at the appellant’s husband. The tenants advised they could no longer stay in the house and sought a return of bond monies. The Tribunal found that letter to be "contrived and self-serving". Obviously the letter could only be so described if it were fraudulent. If the letter were genuine the Tribunal’s conclusions as to the appellant’s claims could not be sustained. No facts supporting a conclusion of forgery were alluded to by the Tribunal. The letter provided the name and address of the tenant.

59 Apart from a number of letters received by the appellant and her husband from relatives in Sri Lanka, there were two other documents of importance, the authenticity of which could have been easily ascertained.

60 First was a letter purporting to be from the Priest-in-Charge of the Nugegoda Baptist Church dated 10 May 2000. The letter appeared to confirm, in some degree, consistency in the appellant’s claims. The name of the priest and the address and telephone number of the church are provided in the letter. The Tribunal made no finding about the document in its reasons but it is to be assumed that the Tribunal treated the document as a fraudulent.

61 Second was a document described as an extract from the "Information Book of Maligawatte Police Station". Whether the document is an English translation of a Sinhalese record is unknown but it purports to record details of a complaint made by the appellant’s husband on the 20 April 2000 that death threats had been made against the family and that police assistance was sought. The document sets out the name and number of the police constable recording the statement and the date and time of the report and the page and paragraph number in the report book. Given the importance of the document to the appellant’s claims if the document were a true record of an entry in a police occurrence book, and given that the genuineness or otherwise of the document could have been established comprehensively by prompt investigation, the failure of the Tribunal to take that step having regard to the seriousness of the findings of fraud, forgery and perjury it was prepared to make against the appellant is difficult to follow.

62 In making those findings the Tribunal made no reference to the foregoing document. It is to be assumed that the Tribunal considered that it was able to disregard the document by reason of the findings of implausibility it had made in respect of some elements of the appellant’s account.

63 Section 424 of the Act expressly empowers the Tribunal in its conduct of a review to get any information that it considers relevant. Section 427(1)(d) of the Act authorises the Tribunal to require the Secretary to "arrange for the making of any investigation ... that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation ...". WALS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1642 at [9] provides a recent example of the exercise of that power.

64 The authenticity of the letter said to have been issued by the preparatory school could have been ascertained without difficulty. Similarly, the truth or otherwise of the purported letter to Sri Lanka Telecom; of the record of complaint at the Maligawatte Police Station; and of the letter from the Nugegoda Baptist Church could have been established with ease. To determine whether the newspaper extracts and letter from purported tenants were genuine may have taken more time but would not have imposed an unreasonable task on the Secretary. No doubt if circumstances showed such steps to be appropriate the Secretary could request assistance from relevant authorities in Sri Lanka, using official channels for that purpose if necessary.

65 Having regard to the importance of the foregoing documents to determining whether the appellant’s claims were to be accepted; the significant public interest in discovering whether fraudulent documents had been used in the application; and the ease which enquiries could have been made to test the authenticity of the documents presented, it is surprising that the Tribunal failed to exercise the discretion available to it under the Act to have the Secretary conduct an appropriate investigation.

66 This was a case in which the power available to the Tribunal should have been used, if the Tribunal were to be seen to be exercising its powers, and making decisions, in a fair and even-handed manner. (See: Minister for Immigration and Multicultural and Indigenous Affairs v Singh (1997) 74 FCR 553 per Black CJ, von Doussa, Sundberg and Mansfield JJ at 561).

67 It should be observed that the ultimate decision in Singh turned on limitations of the grounds for an application to this Court for an order of review under s 476 of the Act, as it then stood, and did not consider whether constitutional writs may issue for "jurisdictional error" occasioned by failure of the Tribunal to act in the manner authorised by the Act. (See also: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Gleeson CJ, McHugh J at [51]). It is to be noted in passing that the ground for the application for the issue of constitutional writs in Eshetu was restricted to "Wednesbury unreasonableness" and "jurisdictional error" was not relied upon. (See: Eshetu per Gleeson CJ, McHugh J at [39]-[45]; Gaudron, Kirby JJ at [102], Gummow J at [107], [145]-[147]).

68 The implied finding underlying the Tribunal’s decision was that the appellant and her husband had constructed an elaborate fraud before they left Sri Lanka. If that were so there was substantial public interest in having that fraud exposed and, it may be assumed, a particular interest on the part of the Minister in obtaining information on whether the appellant and her husband had fabricated the documents or had obtained them from a source which manufactured such materials on demand, a circumstance of considerable importance to due administration of the Minister’s Department.

69 That is to say, the confluence of the need for the Tribunal to provide a fair proceeding to the appellant with the public interest in an inquiry being undertaken into the provenance of the documents, made plain the reasonableness of the Tribunal exercising a power to have the Secretary to arrange for such an inquiry to be conducted. The Tribunal was directed by the Act to undertake inquisitorial procedures on behalf of the Executive and was empowered to take such steps necessary for that purpose whilst observing the requirements of procedural fairness. (See: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [23]- [24], [26]).

70 At the hearing conducted on 3 July 2002 the appellant informed the Tribunal that her employment as a staff member at the United States Embassy in Colombo entitled her to apply, on behalf of herself and her family, for admission to the United States upon attaining 15 years service. The appellant informed the Tribunal that but for the threats of harm referred to, the appellant and her husband would have remained in Sri Lanka until the appellant completed the required period of service and the entitlement would have been exercised. According to the information provided by the appellant in the visa application 15 years service would have accrued by February 2002. That is to say in August 2000 when the appellant and her family left Sri Lanka for Australia, only 18 months of the period remained to be served.

71 If the belief of the appellant that she had such an entitlement was well-founded, that circumstance had to be given due consideration by the Tribunal in assessing whether it was either likely or probable that the appellant and her husband would construct a fraudulent scheme to attempt to obtain entry to Australia rather than wait 18 months for a right to enter the United States. The Tribunal did not address any of the foregoing points.

72 The difficulties faced by the Tribunal in conducting the review of a decision to refuse a protection visa are obvious. The material that an applicant is able to produce in support of an application is likely to be limited and assertions by the applicant as to the occurrence of events in the country of nationality may be difficult to test. The Tribunal may tend to rely upon impressions on an applicant’s case formed from perusal of the relevant file and a truncated hearing process. Notwithstanding the foregoing the irreducible requirement upon the Tribunal throughout is to perform its functions by procedures that are fair so that "the practical requirements of fairness" appropriate for application of the rule of law are observed notwithstanding that the Tribunal is not exercising judicial power and is an inquisitorial body carrying out an administrative function on behalf of the Executive. (See: R v Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 WLR 242 per Sedley J at 258; VEAL at [10]).

73 Notwithstanding the difficulties in the task undertaken by the Tribunal a process that was practically fair had to be followed. The Act seeks to maintain that safeguard by making it clear in s 430 that in making its decision the Tribunal must prepare a written statement that sets out the decision, the reasons for the decision, the findings made on any material questions of fact and refers to the evidence or the other material on which the findings of fact were based.

74 The following comments by Professor Goodwin-Gill ("The Refugee in International Law" Oxford (2^nd Edn) at p 350) illustrate the importance of the provisions of s 430 in maintaining the integrity of decisions made in protection visa applications:

75 Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.

76 If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).

77 The obligation upon the Tribunal to conduct a fair hearing is confirmed by the terms of s 420 of the Act which, whilst instructing the Tribunal to provide a mechanism of review that is economical informal and quick and not bound by technicalities legal forms or rules of evidence, requires the Tribunal to ensure that the process of review is fair and just and states that the Tribunal must act according to substantial justice and the merits of the case.

78 It is to be noted that s 422B, introduced to the Act on 4 July 2002 by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) does not apply to this application. Section 422B states that ss 422B-429A of the Act are "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters [they] deal with". The transitional provision in Item 7 of Schedule 1 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 provides that s 422B applies only to an application for a visa made on or after 4 July 2002 and, therefore, it is unnecessary to consider whether the provisions of s 422B could have any bearing on the construction of s 420 to be applied in this case or upon the extent of the steps the Tribunal may have to take to accord procedural fairness to an applicant for review in a given case. (See: VEAL at [10]).

79 Obviously to meet the practical requirements of fairness the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily, nor by acting on preconceived prejudice or suspicion, nor in a manner that gives rise to a reasonable apprehension of bias on the part of the Tribunal. (See: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Deane J at 366-368, Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [27]). A breach of the duty so to act constitutes an error of law that vitiates the decision (Australian Broadcasting Tribunal v Bond per Deane J at 367).

80 The Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Eshetu per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 per Spigelman CJ at [72]).

81 The decision of the Tribunal is to be based upon the formation of the state of satisfaction required by s 65 of the Act. That state of satisfaction, or of non-satisfaction, however, must be formed reasonably upon the material before the Tribunal. As stated by Iacobucci J in Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [56] (referred to by Gummow J in Eshetu at [145]):

82 The foundation for all of the foregoing is the requirement that the Tribunal act judicially by according procedural fairness (Australian Broadcasting Tribunal v Bond per Deane J at 366-367).

83 Analysis of the Tribunal’s reasons by a less than probing examination shows that the Tribunal’s decision is based upon statements that the appellant’s claims are implausible on which the Tribunal purported to make findings that the appellant’s husband provided no information to police about the suspicious movements in a neighbouring apartment; that no threats had been made to the appellant or her husband by the LTTE; and that the appellant and her husband "never went into hiding for any reason".

84 The consequential determination by the Tribunal that it was not satisfied that the appellant was a person who met the prescribed criterion of s 36(2) of the Act depended upon the reasonableness of the process followed to arrive at that decision.

85 The matters the Tribunal said were implausible and upon which the Tribunal based the foregoing findings were:

86 Putting to one side that, as discussed earlier in these reasons, the foregoing findings may have misstated part of the appellant’s claims in some degree, the matters the Tribunal described as implausible were not claims disproved by proven facts nor events so contradicted by commonsense or human experience that they could be dismissed by the Tribunal as possible occurrences. The Tribunal engaged in speculation as to what a more likely course of events may have been but had no basis on which it could say that the events described by the appellant did not happen. The Tribunal may not have been persuaded that events occurred as claimed but it had no material on which it could convert such a doubt into a positive finding that the events had not occurred. The Tribunal, therefore, was bound to examine and deal with the documents and justify by appropriate findings of fact and reasoning therefrom its treatment of the material.

87 The reasons of the Tribunal suggest that the Tribunal relied upon a suspicion or impression it formed and that it did not, as required, undertake a rational examination of the material before it to ascertain whether its instinctive conclusion was supported by that examination.

88 As Brooke LJ stated in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11; [2000] 3 All ER 449 at 469-470:

89 In its treatment of the process of review the Tribunal failed to accord the appellant the fair procedure required by the Act. There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be so characterised. This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]-[85]).

90 However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal’s inquisitorial function.

91 If the Tribunal fails to carry out a review proceeding that accords with practical requirements of fairness, it conducts a proceeding, and makes a determination, that is not authorised by the Act. That is to say the Tribunal does not have "jurisdiction" or authority to purport to make such a decision and the decision will be subject to judicial review by issue of constitutional writs. (See: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34]-[37]; Kirby J at [116], [127]-[128], [138]).

92 The Tribunal’s treatment of the documentary material relied upon by the appellant to support her claims tainted the review process with fundamental unfairness. For the reasons outlined above the decision of the Tribunal was not a determination made in accordance with the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 per Gummow, Callinan JJ at [32]; VEAL at [10]).

93 Although it is unnecessary to deal with the issue, counsel for the Minister properly drew the Court’s attention to the further question whether the decision of the High Court in SAAP provided another ground on which the appellant may seek relief. Counsel for the Minister submitted that it did not.

94 In short, the question submitted to the Court was whether the conduct of the hearing by the Tribunal failed to observe the requirements of s 424A of the Act and, therefore, whether the Tribunal had purported to make a decision that was not authorised by the Act and must be set aside by reason of that failure.

96 In SAAP the High Court held that pursuant to s 424A the Tribunal was required to inform an applicant, in writing, of any material obtained by the Tribunal adverse to the applicant’s application, (including information obtained in the course of a hearing conducted by the Tribunal under s 425 of the Act), that would be the reason, or part of the reason, for the Tribunal affirming the decision under review.

97 In the instant case the Tribunal received information from the appellant’s husband in the course of the hearing on 3 July 2002 which information the Tribunal described as being "significantly discrepant" from the appellant’s account as to where the appellant and her husband had resided in Sri Lanka in the several months prior to their departure for Australia.

98 It is not clear whether the Tribunal regarded that information as part of the reason why the Tribunal would affirm the delegate’s decision to refuse the grant of a protection visa to the appellant. In its reasons the Tribunal merely stated that the evidence of the appellant and her husband was "inconsistent in some key respects".

99 If the Tribunal did rely on the alleged inconsistency as the reason, or part of the reason, for making its decision then, as confirmed in SAAP, the Tribunal was bound by s 424A of the Act to set out in writing the perceived inconsistency between the information obtained at the hearing and the details provided by the appellant in her oral account and in the written accounts attached to the application for a visa, and to invite the appellant to respond thereto.

100 It was irrelevant to that obligation that the appellant, or her migration agent, was present when the husband provided that material to the Tribunal. It was necessary for the Tribunal to give written notice to the appellant of how the Tribunal perceived that information would be the reason, or part of the reason, for affirming the delegate’s decision and in the absence of that notice the decision made by the Tribunal was not authorised by the Act. (See: SAAP per McHugh J at [77]). Counsel for the Minister conceded that no written notice was provided to the appellant under s 424A and submitted that it was not required.

101 A similar issue would arise in respect of the husband of the appellant if he is to be regarded as an applicant for a protection visa under the Act. As noted earlier in these reasons (at [6]) under the terms of the Act and Regulations as they stood at the relevant time the visa applied for by the appellant’s husband may have been other than a protection visa as defined in s 36 of the Act. If, however, the appellant’s husband is to be regarded as such an applicant, and counsel for the Minister submitted that he was, then if at the hearing conducted by the Tribunal on 3 July 2002 the Tribunal obtained information from the appellant that the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision to refuse the grant of a protection visa to the appellant’s husband, it would follow even more plainly that the Tribunal did not observe the requirements of s 424A in respect of the review of that decision, the husband having been excluded from the hearing whilst the appellant provided information to the Tribunal and not having been informed thereafter by written notice, of the Tribunal’s proposed use of that information in respect of his application for a visa.

102 Finally it is necessary to address the statement by the Tribunal in its reasons that in reaching the "ultimate conclusion" that the appellant and her husband were not "refugees" it had noted and given "weight" to "the availability of State protection in Colombo and elsewhere", said to have been referred to in the "United States Department of State Country Reports on Human Rights Practices (sic) 2000 ff". It does not appear that any of that material was put to the appellant or the migration agent for comment.

103 Two points arise out of the foregoing. First, the purported conclusion that there could be no fear of harm held by the appellant, or her husband, because of the level of "State protection" available in Sri Lanka was directly opposed to the Tribunal’s finding that at the time the threats were said to have been made by the LTTE it was a matter of notoriety that the LTTE had the capacity to carry out such a threat of harm at any time and in any place in Sri Lanka. The United States Department of State Report to which the Tribunal referred pertained to the same period of time. The Tribunal did not examine and made no findings of fact as to whether circumstances in respect of "State protection" in Sri Lanka as at July 2002 had changed markedly since April/August 2000. The only comment made by the Tribunal of relevance to the point was an allusion to "the possible fragility of the current ceasefire in Sri Lanka"

104 Second, the reference to "the availability of State protection" in Sri Lanka was a comment made in passing by the Tribunal after the substantive reasons for the decision of the Tribunal had been stated. A comment made at the "heel of the hunt" and for which no supporting analysis is provided in the reasons as required by the Act cannot be taken to be the operative ground for the decision. The Tribunal did not discuss how the degree of "State protection" available in Sri Lanka could make fear of persecution at the hands of the LTTE an unfounded fear.

105 Furthermore, it cannot be said that the "weight" the Tribunal attached to the information to which it referred was not affected by the review procedure undertaken by the Tribunal being a procedure that failed to accord procedural fairness to the appellant as discussed above.

106 For either reason the purported finding of absence of well-founded fear of persecution based on the ground of "availability of State protection" cannot sustain the Tribunal’s decision.

107 There was no "jurisdictional" foundation for the decision the Tribunal purported to make and the appeal must be allowed; the orders of the Federal Magistrates Court set aside; and in lieu thereof orders made that constitutional writs issue to quash the decision of the Tribunal and to direct the Tribunal to make a determination according to law.

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V794 OF 2004

BETWEEN:	APPLICANT M164/2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	LEE, TAMBERLIN AND DOWSETT JJ
DATE:	22 FEBRUARY 2006
PLACE:	MELBOURNE

108 I have read and agree with the reasons for decisions and orders proposed by Lee J in this matter.

109 The case advanced for the appellant is that, on 4 April 2000, she informed the authorities in Sri Lanka of her concerns concerning a number of Tamil men, unknown to her, who came and went at night in another apartment in the apartment block in which she lived in Colombo. She claimed that, from the following day, she began to receive threatening telephone calls and letters from unknown persons who stated that they knew that she had informed the police about some of their colleagues who had been subsequently arrested. Two of these letters are in evidence. The appellant claimed that some of the callers identified themselves as being connected with the Liberation Tigers of Tamil Eelam (LTTE). She said that the police had not informed her that they had made any arrests and that she learnt of the arrests from newspaper articles.

110 The appellant also made a number of other claims which, if accepted, disclose a Convention ground, namely, that the appellant faced a real chance of persecution if returned to Sri Lanka on the basis that she and her family would be perceived by the LTTE as being opposed to that movement. There was some discussion in the hearing before this Court as to whether any Convention ground had been alleged. In my view, the appellant’s claim is, in substance, based on imputed political opinion. This claim can be properly characterised as a claim by the appellant to have a well-founded fear of harassment, amounting to persecution, as a result of actions taken by her that were seen as contrary to the interests of the LTTE.

111 Throughout its reasoning and discussion of the evidence, the Refugee Review Tribunal ("the Tribunal") referred to assertions as being "implausible". For the reasons outlined in previous authorities, this is an unsatisfactory observation because it falls short of a positive finding: see, for example, W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; (2002) 185 ALR 703 at 717 per Tamberlin and Nicholson JJ. The word "implausible" leaves open a conclusion consistent with a claim for refugee status on the basis that, while there may be a real chance of something happening, on the balance of probability, it did not happen. The expression is essentially a substitute for the word "probable", although that term is slightly stronger, but it does not preclude a reasonable finding that there is a real chance of persecution. In the present case, the word "implausible" has been used by the decision-maker on a sliding scale of reference in the sense that, in some instances, the material is referred to as "implausible" and, in other instances, as "entirely implausible". In my view, the use of the word "implausible", taken alone, is not sufficient to amount to jurisdictional error. However, it is a matter that should be taken into account when considering the overall position in order to determine whether there has been a jurisdictional error by the Tribunal.

112 The criticisms levelled by the Tribunal at the documents produced by the appellant are, to a large extent, untenable. Once again, this is not sufficient, of itself, to amount to jurisdictional error, however, it must be weighed in the balance.

113 The appellant submitted a number of photocopies of newspaper articles as verification of her claims. In finding that these documents were not "genuine", the Tribunal referred to the late submission of the documents. The late submission of the documents is not a sufficient basis for concluding that the articles were contrived by the appellant or her husband. In the original application made in mid-September 2000, the appellant referred to other relevant documents and information in support of the claims being submitted at a later stage. Although the newspaper extracts bear no date or newspaper banner, on their face, they appear to be of printed articles from a newspaper.

114 Considerable emphasis is placed by the Tribunal on what appears to be a printed newspaper article, referring to the appellant’s husband by name. The Tribunal concludes that the reference to the name of the appellant’s husband is a clear indication that he must have been the source of the media report about his circumstances, whereas the appellant claims that they did not have any contact with the media. The Tribunal member considered the terms of the articles to be self-serving and used the reference in the article to the appellant’s husband to base the critical finding that the claim lacked credibility. The newspaper article states:

It does not necessarily follow from this extract that the applicant had contacted the media. These statements could have been made without any contact between the appellant and the media. Moreover, on a fair reading of the extract, the comment by the Tribunal that the contract is contrived in tone is not, in my view, warranted.

115 In relation to other correspondence, namely, a letter from S. Thomas’ Preparatory School and a letter to Sri Lanka Telecom, the Tribunal referred the late submission of these documents as a principal reason for rejecting them. For the reasons outlined above, this does not follow. The Tribunal also said that the tone and content of the correspondence is contrived and self-serving. The letter from the School is thought to be of dubious provenance because it uses the abbreviation "S." instead of "Saint" or "St" when referring to the title of the School. No basis is given by the Tribunal to support this conclusion. Indeed, the Oxford English Dictionary refers to "S." as a common abbreviation for "Saint". In my view, a careful consideration of the letters conveys a concern that one might reasonably expect from the family and from the School. The letters do not manifest any overt attempt to manipulate evidence to support the appellant’s case. The finding that the letters were not genuine is an important finding and requires some firm basis. In my view, there is no basis for this finding.

116 In addition, there is a letter from the priest in charge at the Nugegoda Baptist Church dated 10 May 2000. This letter is in the nature of a reassurance that the appellant had done the right thing in informing the authorities, and expresses concern for the appellant’s safety. On its face, this letter is regular and reasonable and coincides with the appellant’s case. It does not disclose any element of contrivance. A telephone number is provided in the letter. This telephone number was not checked by the Tribunal. The reason that the document was rejected by the Tribunal was because it was categorised as contrived. This conclusion is reached because of the lack of credibility of the appellant’s claims regarding alleged threats against her by the LTTE. This is circular reasoning.

117 A positive finding that documents are contrived or fraudulent is a strong adverse finding. Such a serious determination requires a proper foundation and a careful examination of all the relevant evidence bearing on the issue of credibility. A view that part of a claim cannot be accepted does not mean that any documents relating to that claim must be contrived or false and should be disregarded. Each of the documents should be examined and considered on its face and in context. If one or more supportive documents, when properly considered, are found to be genuine, this consideration may strongly support a finding that a claim is credible and has been made out. It may override an impression gained by the Tribunal that the claim lacks substance. A document accepted as genuine after proper consideration can be strongly corroborative of an applicant’s case. This is particularly so in cases concerning refugees, where documentary evidence may be of greater assistance than oral assertions in establishing facts which cannot, in any meaningful sense, be properly investigated by way of probative independent evidence. Of course, in some cases, there is country information which indicates that forgery of documents and fabrication of false documents is prevalent in that country or region. Such information is one matter to be taken into account. However, in the present case, several important documents have been dismissed without any proper investigation, examination or consideration. These omissions may have had a significant bearing when balancing considerations for and against a finding of lack of credibility.

118 I consider that the Tribunal did not properly deal with the claims made by the appellant in this matter. This is because of the critical role played by the finding on credibility and the importance of the letters, which, on their face, are reliable and supportive of the appellant’s case, and because of the failure of the Tribunal to make a number of simple phone calls to verify the authenticity of the documents. The failure of the Tribunal to deal with the case sought to be made by the appellant and the documentary evidence called for findings by the Tribunal as to the authenticity and weight of the documents. This was not done. To some extent, the reasons for decision reflect such a closed state of mind in relation to the claims of the appellant that there was, on the face of the reasons, ostensible bias. Consequently, there was a failure by the Tribunal to properly exercise its jurisdiction in such a way as to give rise to jurisdictional error. The two central documents raised were dismissed in a summary fashion without any proper consideration and the other comments in relation to the newspaper items and the references to "implausibility" support this conclusion. Had these documents been considered or inquiries made regarding their authenticity, there may have been a different finding on credibility.

119 Since there has been a failure by the Tribunal to properly consider the appellant’s claims, there has also been a failure to properly consider whether state protection would be available to the appellant on her version of their events, if she was accepted as a credible witness, so that the finding as to the availability of State protection may have been different. The conclusion as to the availability of State protection depends on the existence and nature of the anticipated persecution.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 794 OF 2004

BETWEEN:	APPLICANT M164/2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	LEE, TAMBERLIN AND DOWSETT JJ
DATE:	22 FEBRUARY 2006
PLACE:	HEARD IN MELBOURNE

120 This is an appeal from a decision of the former Chief Federal Magistrate, dismissing an application by the appellant for a declaration that a decision by the second respondent (the "Tribunal") was invalid and for an order quashing it. By its decision the Tribunal had affirmed a decision by a delegate of the first respondent (the "Minister") pursuant to the Migration Act 1958 (Cth) (the "Migration Act"), denying a protection visa to the appellant. The appellant was unrepresented before the Chief Federal Magistrate and at the hearing of the appeal. However she had the assistance of an interpreter at the proceedings in the Tribunal. A perusal of the transcript suggests that the interpreter acted to some extent as an advocate. It is, I think, common ground that the decision of the Tribunal was a privative clause decision within the meaning of s 474 of the Migration Act and that, in effect, it can be challenged only to the extent that jurisdictional error is demonstrated.

121 The appellant, her husband and two children were all named in the relevant application as being included therein. However only the appellant claimed to be a person to whom Australia owed protection obligations pursuant to s 36 of the Migration Act. As I understand the scheme of the Migration Act, subs 36(2) provides alternative bases for the grant of a protection visa. The first, contained in par 36(2)(a), is that the relevant applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Convention and the Protocol are identified in the Migration Act. Alternatively, pursuant to par 36(2)(b), a protection visa may be granted to a non-citizen in Australia who is the spouse or dependant of a non-citizen who satisfies the requirements of par 36(2)(a) and holds a protection visa. In other words, if the appellant were granted a protection visa, her husband and children would also be entitled to protection visas, based upon her established claim to refugee status and their respective relationships to her.

122 All applicants are Sinhalese Christians. Until 2000, the appellant worked as a telephonist at the American Embassy in Colombo. Her husband worked as a marketing executive. They had moved to Colombo from Kandy in 1985. They lived in a large block of units. The appellant claims that at some stage they became suspicious of Tamil men who were frequenting another unit in the block. On 4 April 2000 they informed the authorities of their concerns. Although the police did not inform them of the fact, they learned from newspaper articles that there were subsequent arrests. On the day after they had so informed the police, the appellant and her family commenced to receive threatening telephone calls. Some of the callers identified themselves as being connected with the Liberation Tigers of Tamil Eelam ("LTTE"). (See transcript of proceedings in the Tribunal at p 7.) This is a terrorist organisation seeking the establishment of a separate Tamil state in Sri Lanka. The callers asserted that they knew that the appellant had informed the police about their arrested colleagues. The appellant claimed also to have received threatening letters from LTTE.

123 The appellant claims that she and her husband feared for the safety of their family. On the day following the first threat, they moved to the residence of a brother of either the appellant or her husband. They returned home temporarily and then moved to Kegalle for about five days, staying with another relative. After a few days there, they moved to a sister’s house. The appellant’s husband returned to the former home to collect mail and learned that strangers had been asking after them. Threats continued to be made at their home and at the appellant’s workplace. As a consequence she took several days off work. The appellant claims that on one occasion strangers attempted to break open the gate of the appellant’s sister’s house, asking after the family’s whereabouts. They claimed to know that the family had stayed at that house. The appellant also claims that on another occasion they were watched by strangers at a railway station. It seems that the surveillance ceased when security forces arrived. At the end of April the family went to the appellant’s mother’s home in Kandy. They stayed there and at various brothers’ houses until they left for Australia. In early May, the appellant was approached by somebody at her place of work. That person said that she and her family were being watched and that they would be annihilated. Their home was later let by the appellant’s sister, but the tenant soon left, claiming to have received threatening telephone calls and inquiries after the appellant and her family. They arrived in Australia on 14 August 2000.

124 Just over a fortnight after the initial threats, the appellant and her husband made a complaint to the police. They said that they had not complained earlier because the police never took effective action. I note that in her original application, the appellant claimed that she had reported the initial threats to the police shortly after they were made. However the matter proceeded in the Tribunal on the basis that the first complaint to the police was made on 20 April 2000.

125 A number of documents were presented in support of the appellant’s claim. These included purported articles in a newspaper, letters from family members and friends, warning letters from LTTE and correspondence received from a clergyman, a school and the tenant of their home. I will deal with these matters in more detail at a later stage.

126 The Tribunal discussed with the appellant the cease-fire presently existing between the government of Sri Lanka and LTTE. She said that it was fragile and that previous truces had broken down. She believed that LTTE could use the ceasefire to rearm and said that there had been recent reports of arms shipments by LTTE and of the conscription of children. The Tribunal apparently also had "country information" concerning the capacity of the Sri Lankan government to protect citizens against attacks by LTTE.

127 The Tribunal rejected the claims made by the appellant and her husband. It concluded that some of the documentary material was not genuine and some of it was ‘contrived’. The Tribunal also found that state protection was available from the Sri Lankan government.

128 The grounds for the original application in the Federal Magistrates Court were, perhaps understandably, expressed in less than perfect English. However their meaning is fairly clear. They were effectively that:

130 In summary, the appellant complained that the Tribunal had not properly treated, or considered, various aspects of her case. The Chief Federal Magistrate considered these matters and concluded that the Tribunal had taken all of them into account and that the appellant was, in reality, seeking merits review. Her Honour concluded that no jurisdictional error had been demonstrated.

131 The appellant appeals from that decision. However her notice of appeal alleges that the Chief Federal Magistrate committed jurisdictional error in not giving proper consideration to three specific matters, namely:

132 These assertions are not readily identifiable as arguable grounds of appeal. In the absence of any such grounds it is, in my view, inevitable that the appeal should be dismissed. However, as the majority considers that the matter miscarried in the Tribunal and should therefore be remitted for further consideration, it is appropriate that I state my reasons for dissenting from that view.

133 The appellant claims that she is a person to whom Australia owes protection obligations in that she,

134 The appellant claims to fear persecution for reason of her political opinion. She, at some stage, asserted that she had spoken out against the objective of LTTE, namely a separate Tamil state in Sri Lanka. However she has not suggested that LTTE members were aware of this or that it had anything to do with the persecution which she now fears. Her claim depends solely upon her assertion that she fears that LTTE will persecute her because of her actions in reporting the suspicious movements of other people in her unit block.

135 In most cases, persecution for a Convention reason involves harm or threat of harm by a government agency. The appellant makes no claim to fear persecution from the government of Sri Lanka. However a person may also satisfy the relevant criteria if he or she fears persecution from a non-government source and that the relevant government will be unwilling or unable to protect him or her from such persecution. Again, the feared persecution must be for a Convention reason. It may be sufficient that the person fears persecution because of a mistaken belief on the part of the potential persecutor that he or she holds a particular political opinion. It seems that the appellant’s case, at its highest, is that she fears that LTTE members will persecute her for reason of their belief that she holds political views opposed to their goals and/or activities. The only evidence that any such belief is held by LTTE members is the allegation that she and her husband reported suspicious behaviour near their home and the alleged subsequent threats and surveillance, perhaps coupled with general perceptions concerning the propensity of LTTE members to use violence. As I have said, it is a terrorist organization and has, in the past, used violence in seeking to attain its goals. However, as I have also observed, there was, at the time of the Tribunal’s decision, a cease-fire in force between the Sinhalese government and LTTE.

136 For present purposes, it is necessary to distinguish between fear of violence by terrorists as part of a campaign of terrorism and fear of persecution for a Convention reason. Terrorists frequently offer violence to members of a community for reasons which are not peculiar to the persons so affected. Fear of such random violence, or of the consequences thereof, is not fear of persecution for a Convention reason. To the extent that the appellant fears the consequences of LTTE terrorist activity, not aimed at her for reason of any view held by its members as to her political opinion, such fear is irrelevant for present purposes. Only fear of persecution motivated by her (perceived) political opinion is relevant. Of course, the distinction may not be easy to draw. However, in the absence of such distinction, any person having a well-founded fear of terrorism would be entitled to the protection available under the Convention, subject only to the availability of state protection. Quite apart from other difficulties peculiar to the appellant’s case, a major problem for the Tribunal was to give effect to this critical distinction. Similarly, fear of violence by way of revenge would not necessarily constitute fear of persecution for a Convention reason. Again, the distinction may be difficult to draw in practice.

137 Had the Tribunal been satisfied that the appellant feared persecution by LTTE members for a Convention reason, it would have had to consider whether the appellant had a well-founded fear that the Sri Lankan government could not, or would not, protect her from such persecution. The question of state protection has been a relevant issue throughout these proceedings. The Minister’s delegate found, at 3.22 of the reasons:

138 In her application to the Tribunal, the appellant appears to have disputed this conclusion. However the Tribunal, at p 6 of its reasons, observed:

140 In this passage the Tribunal dealt with two issues. The first was the credibility of the appellant’s case, given the apparent delay in reporting the threats to the police as compared to her willingness to invoke their aid in connection with her suspicions concerning the activities of the Tamil men in her unit block. She had presumably expected the police to act against them. The Tribunal seems to have considered that such an expectation was inconsistent with her assertion that she had not reported the threats when they first occurred because she doubted that the police would act. The second matter addressed in the above passage was the availability of State protection against persecution. The Tribunal concluded, on the basis of available country information and the appellant’s conduct in reporting her suspicions, that the Sri Lankan government was willing and able to offer such protection.

142 When the question of state protection was raised with the appellant in argument before this Court, she disputed the finding that it was available. However she made no attempt to demonstrate that the Tribunal’s findings were unsupported by the material before it.

143 In this case, it was necessary to consider whether the appellant feared violence, motivated by a perception as to her political opinion and that the Sri Lankan government would not protect her and her family from such violence. As to the first matter, one wonders why the single act of reporting her suspicions should have led LTTE members to perceive that the appellant held a particular opinion. Such action may well have attracted the attention of LTTE, but it would not necessarily have led to any view as to political belief. One might well think that it was much more likely that the appellant would fear random violence as part of a terrorist campaign or an act of revenge than that she would fear persecution for a Convention reason. That was, of course, a matter for the Tribunal.

144 As to the second matter, I consider that in finding that protection was available, the Tribunal implicitly found that any fear on the part of the appellant was not well-founded. No proper basis, indeed no basis at all, has been advanced for launching an attack upon that finding. Any such attack would again have to address the distinction between the fear of terrorism and the fear of persecution for a Convention reason. It would be much harder to protect the community as a whole from terrorist attack than to protect one family which had been specifically identified as a possible target. In any event, in the absence of an apparent basis for doubting that the evidence justified this finding, the appeal must fail.

145 The majority’s criticism of the Tribunal’s decision focuses upon its rejection of the claims made by the appellant and her husband, its treatment of certain documents and the finding concerning state protection. It is convenient to deal first with the documents. They include:

146 This material, other than the letter from the school and, possibly, that from the tenant, was first forwarded to the Tribunal under cover of a solicitor’s letter dated 25 June 2002. It is not clear when the other material was supplied. The Tribunal was understandably concerned by the late submission of the material and questioned the appellant about the delay. Unfortunately, the appellant’s responses were not audible on the recording of proceedings in the Tribunal. However it is clear that the appellant claimed to have brought the material to Australia. The Tribunal referred in its reasons to the ‘belated’ submission of material but said nothing else about that matter. Before this Court, the appellant asserted that she had supplied the material to a migration agent who failed to submit it in support of the application. It is unclear whether she gave that explanation to the Tribunal, again because of the state of the recording. It was for the Tribunal to consider any explanation offered. It is not clear whether it treated the documents as suspect because of such late delivery. If it did so, then it must have rejected the appellant’s explanation as untrue or inadequate. It presumably heard what was said, despite the recording being unclear. It was entitled so to reject the explanation. If it did not treat the documents as suspect because of their late delivery, then the matter is of no consequence.

147 In any event, I consider that the documents have acquired an apparent significance which they do not warrant. In order to demonstrate this, it is necessary to examine them in detail.

148 The extracts were undated and bore no identification of the source publication or publications. Any investigation of their bona fides would therefore have been difficult. The translation of the first extract reported that:

149 According to the translation, the second extract reported that LTTE had obtained ransom from ‘ordinary Tamils living in Colombo’ and that they had threatened and intimidated persons who spoke against them or informed the police about such activity. The article reported that ‘It is understood that these elements have engaged in acts of terrorising the people on 25 May.’ The third extract, headed ‘Death Threats to Informants’ stated:

150 Purported copies of the original articles were provided. They are in a language other than English, using non-Roman characters. There was no evidence proving the accuracy of the purported English translations, but it seems to have been assumed. The only proof that the extracts were genuine (ie that they came from published newspapers) was that the appellant, and perhaps her husband, said so. The appellant said that they were published about the time of the incidents to which they related. She told this Court that since the hearing in the Tribunal, she has tried to identify the source newspaper or newspapers but has not been able to do so. The appellant’s husband denied having spoken to the press concerning the presently relevant matters, raising a question as to how the third extract came into existence. The language of the translations is often ungrammatical, and the reports are superficial. Of course, one must make allowance for cultural differences and difficulties in translation.

151 The most unsatisfactory aspect, however, is the absence of any identification of the sources of the extracts or their dates. Although it may not be strictly relevant, the appellant’s inability to identify such sources, despite efforts made since the Tribunal hearing, does not assist the argument that the Tribunal should have independently checked the authenticity of the articles. It is difficult to see how it could have done so. There is nothing about the physical appearance of the material which leads to an inference of authenticity. In the end, the weight to be given to the extracts depended entirely upon the Tribunal’s views of the appellant and her husband as witnesses.

152 In any event, the content of the extracts could not have greatly assisted the appellant’s case, particularly in view of the absence of information as to dates of publication. At the highest, the extracts disclose a complaint to the police which, as the appellant and her husband asserted, was made on 20 April 2000. However the appellant denied that her husband had spoken to the press. The other events reported in the extracts may, or may not, have been those referred to in evidence by the appellant and her husband.

153 The extract from the Police Information Book reports that the appellant’s husband visited the police station and stated that:

154 Taking the document at face value, it does no more than record that the appellant’s husband made such a complaint on 20 April 2000. It says nothing about the authenticity of the complaint and nothing about the delay in making it. Even if the complaint were made, it was no more than a prior consistent statement, as consistent with an attempt falsely to establish refugee credentials as with there having been a true basis for the complaint. Once again, the weight attributable to the document depended, in large part, upon the Tribunal’s views of the appellant and her husband as witnesses. It may have been possible to contact the police station to see if the report was authentic. However it was of such marginal relevance, as compared to the evidence from the appellant and her husband, as to make it superfluous for the Tribunal to have taken that course.

155 The appellant and her husband claimed to have received two documents on the ‘letterhead’ of LTTE and bearing the ‘logo’ of that organization. Both documents were, according to their terms, ‘Released by the International Secretariat of LTTE 211 Katherine Road London E61BU United Kingdom Tel: 020 85034294.’ The first, dated 19 April 2000, said:

157 Both were warnings against future conduct rather than direct threats of punishment for past actions or political beliefs. In this sense they do not support the appellant’s case in which she alleges threats of impending violence. Neither is addressed to the appellant or to her husband. It seems bizarre that a terrorist organization should be using stationery with letterhead and a logo and identifying a street address in London. Again, the letters would only be probative of any relevant matter if it were shown that they had been received by the appellant or her husband. The only evidence of that matter came from them.

158 The letter is dated 19 May 2000 and is from ‘S Thomas’ Preparatory School’. It was signed by a person described as ‘class teacher’ and addressed to the appellant. It speaks of ‘the issue of threats to your family’. One infers that the appellant and/or her husband had approached the school with a view to having their children admitted as boarders in order to safeguard them from danger. One also infers that the writer’s knowledge of such threats must have come from either the appellant or her husband. Again, any probative value would depend upon the Tribunal’s accepting them as credible witnesses. It follows that the letter itself added little or nothing to the appellant’s case, and that any enquiry to the school as to its authenticity would have had little point. It would still demonstrate nothing more than a prior consistent statement.

159 The letter dated 10 April 2000, addressed to the Regional Telecom Engineer, states:

160 Again, the probative value of the letter depended upon the authenticity of the allegation of threats, which matter could only have been addressed by the appellant or her husband. It is also a prior consistent statement.

161 The letter, apparently from the priest-in-charge of the Nugegoda Baptist Church and dated 10 May 2000, is a letter of encouragement in a form which one might expect from a pastor. It relevantly states:

162 Again, one must infer that any knowledge which the priest held concerning the situation was derived from information received from either the appellant or her husband. The value of the letter depended upon the acceptance of their evidence. Obviously it is yet another prior consistent statement.

163 The letter dated 2 August 2001 indicated an intention by the tenant to terminate the letting of the house previously occupied by the appellant and her family and stated:

164 The provenance of the letter could be proven only by the evidence of the appellant and her husband.

165 There are other letters received from relatives and/or friends in Sri Lanka. It is not necessary to outline their content in detail. It is sufficient to say that they refer to threats and the risk of violence against the appellant and her family. Again, their worth in these proceedings depended upon the evidence of the appellant and/or her husband that they are genuine letters.

167 I should say a little more about prior consistent statements. The law has consistently treated them as being generally of little value because of their self-serving nature. Clearly, at some time between April and September 2000, the appellant and her husband decided to seek refuge in Australia. On their own accounts they left their home in Colombo shortly after 5 April. It is not beyond the bounds of possibility that they thereafter set out to establish their claim to refugee status. That might be one reason for reporting, on 20 April, threats allegedly made some two weeks earlier.

168 The Tribunal described the content of some documents as ‘contrived and self-serving’. The word "contrived" may have been meant to imply that documents were not authentic in that they were not what they purported to be. However the Tribunal’s meaning might also have been that the documents, although authentic in that sense, were created or obtained for the purpose of supporting a claim to refugee status. The Telecom letter may well have been written by the appellant or her husband, but it does not follow that it reflects a genuine fear on their part or that it reports facts. The priest’s letter and the school letter were obviously written in response to something said or written to the writers, presumably by the appellant or her husband. If their intention was to provoke responses for the purpose of supporting their claims that they feared persecution, it could be said that the responses were ‘contrived’. Such a conclusion does not necessarily reflect on either the school or the priest. It may well be that the Tribunal deliberately distinguished between the newspaper extracts and the LTTE letters which it found to be ‘not genuine’ (see reasons at pp 6-7), and the other documents, which it found to be ‘contrived’ (see reasons at p 8).

169 Generally, matters in issue must be determined by reference to all relevant material. Evidence may gain credibility from other evidence. A witness’s credibility may benefit or suffer because of credible documentary evidence which supports or undermines it. In theory, although not so often in practice, the authenticity of documents may be strengthened or weakened by credible evidence from a witness. The authenticity of a document and the circumstances in which it was created (including the date thereof) will often be in issue. Sometimes, the document will have the almost indisputable appearance of authenticity. A copy of a well-known newspaper is an example. In such cases, a tribunal, not bound by the rules of evidence, might accept its contents without further proof. In other cases, it may be necessary to prove authenticity and/or the circumstances of a document’s creation. This will often involve the calling of a witness who can identify the documents and/or say something about its provenance. Where the purpose of receiving the document is to bolster the evidence of the same witness, there will be an obvious logical difficulty. The document will be capable of bolstering such credibility only if that credibility is established.

170 In practice, a tribunal of fact must decide whether it accepts disputed evidence, having regard to all of the relevant evidence. When the reasons for accepting or rejecting particular classes of evidence (such as documents and oral evidence) differ, the tribunal’s reasons for so doing may seem to suggest that such classes have been considered in isolation. However that will not necessarily have been the case. Difficulty in expressing the basis for attributing weight to different classes of evidence does not necessarily mean that the tribunal has failed to perform its duty. Where, as here, the relevant Tribunal addresses aspects of the evidence in its reasons, it is unlikely that such aspects have been disregarded in the decision-making process.

171 In this case, only the appellant or her husband were available to give the documents the verisimilitude needed in order to bolster their claims. I do not accept that the documents were of such significance as to lead the Tribunal to conduct its own enquiries. In the end the real question was whether the Tribunal was willing to act upon their evidence, to which issue I now turn.

172 In considering the evidence of the appellant and her husband, the Tribunal first observed that it was ‘implausible’ that their names would have been provided by police to persons suspected of involvement with LTTE. It considered that it was also implausible that the callers who made the threats would have identified themselves as members of a secret terrorist organization. The majority observes that it was not the appellant’s case that the police had provided the names of the appellant and her husband to LTTE. However my understanding of the appellant’s case is to the contrary. The matter was raised by the Tribunal at p 13 of the transcript. In that context the appellant appears to have suggested that LTTE ‘have people even in the police among them everywhere ...’. As I understand it, she was alleging that the information had been passed to LTTE members by somebody in the police force. The majority also observes that the appellant had not asserted that threatening callers had identified themselves as members of LTTE. Again, my understanding of the case is different. The matter was canvassed by the Tribunal at pp 6 and 7 of the transcript. In connection with the telephone calls, the appellant was asked:

173 In its reasons, the Tribunal then observed that it was similarly implausible that police would have given the names of the appellant and her husband to newspapers ‘due to the risk that they would be exposed if there names were published’. The majority considers that it was not the appellant’s case that her name or that of her husband had been published in newspapers as police informants. In the third newspaper extract it was said that the appellant’s husband had claimed that they had received death threats ‘from a group of unidentifiable persons alleging that he has provided information to the police about the terrorist Tigers’. As I understand the point made by the majority, it is that this is merely a report of the appellant husband’s account of the threats, not a statement that he had in fact acted as a police informant. The distinction is a fine one. However the real point of the Tribunal’s comment was that as the appellant denied that her husband had made that statement to the press, the alternative explanation was that the police had informed the newspapers. Thus, in observing that it considered it implausible that the police would have done so, it was really casting doubt on the authenticity of the purported extract. In any event the appellant, herself, was concerned that the effect of the article was to name her husband as a police informant. The third "particular" in par 2 of the notice of appeal is to that effect.

174 The majority also suggests that there was some inconsistency between the Tribunal’s finding that the third extract was not genuine (and by inference created by the appellant and/or her husband) and the finding that the allegedly fabricated extract contradicted their version of events. I understand this point to be that had the appellant and her husband determined to create a false newspaper report, they would not have included information which they proposed to deny. Tribunals of fact frequently rely upon inconsistency as evidence of invention. It can only rarely be seen as indicative of truth. Persons who invent stories are rarely able to foresee the extent to which, or the ways in which, their accounts will be tested and probed. When that process begins, it not infrequently becomes clear that the original story must be amended in order to meet weaknesses which emerge. None of this should be taken as implying that I necessarily doubt any aspect of the appellant’s case. I am merely explaining why I cannot subscribe to the majority’s criticism of the Tribunal’s reasons.

175 In rejecting the appellant’s claim, the Tribunal depended to a significant extent upon the fact that her version of events and that of her husband differed in some respects. This was particularly so in connection with the places at which the family resided after they left their home in Colombo, allegedly as the result of threats. Again, inconsistency between witnesses as to the same events may often indicate that one or other is untruthful or unreliable or, in some circumstances, that both are untruthful or unreliable. However the majority criticizes the decision for not expressly addressing the fact that any differences in recollection ‘concerned events that were said to have occurred more than two years previously.’ It is said that:

176 It was not the function of the Magistrates Court, and it is not the function of this Court, to substitute its own views as to the credibility of the witnesses for those of the Tribunal. The conduct of the appellant and her husband in the period from the first threat until their arrival in Australia was a matter of considerable importance in the case, closely associated as it was with the very facts upon which the appellant relies to establish her claim to a protection visa. They entered Australia slightly over four months after the threats were first received, and the application for a protection visa was made on 13 September 2000, that is about a month after such entry. It is difficult to avoid the conclusion that when they came to Australia, the intention was to take that step. In any event, the importance of those incidents must have become apparent no later than the time at which they decided to seek protection visas. This is not a case in which witnesses were asked to recall events which had occurred long in the past, not having had any cause to address those incidents in the time which had elapsed since they occurred.

178 The majority observes that this aspect of the reasons is difficult to understand, and that the fact that harm did not occur does not mean that a threat of harm was not made. However the appellant’s claim was not merely that LTTE members threatened violence and did not carry it out. She claimed that they had also engaged in extensive surveillance of the appellant and her family. In view of the fact that the family was moving fairly regularly in the period between April and August 2000, that would not have been an easy task. The appellant’s allegation of surveillance necessarily implies that LTTE activists were physically close to members of the family at various times throughout that period and so had opportunities to carry the threats into effect.

179 The Tribunal’s view was not that it was implausible that threats should be made and not carried out. It was that it was implausible that LTTE, with its propensity for violence should have threatened violence, gone to so much trouble to keep track of the appellant and her family, therefore having opportunities to carry out such threats, and not have done so. This view led the Tribunal to conclude that the appellant’s claims lacked credibility. I see nothing illogical in that process of thought.

180 I have previously referred to the Tribunal’s findings concerning the availability of protection from the government of Sri Lanka. The majority observes that there is an inconsistency between the finding that such protection was available and the finding that it was a matter of notoriety that LTTE had the capacity to carry out threats of harm, at any time and at any place in Sri Lanka. I am not sure that the Tribunal’s findings went quite so far, but it does not matter for present purposes. There is a real risk here of confusing acts of terrorism with persecution. As I have previously observed, it is obviously much easier to protect an identified target than it is to protect the whole of the population of Sri Lanka. No government can guarantee the absolute safety of all citizens. The relevant question was whether the state was willing and able to protect the appellant and her family from persecution for reason of her (perceived) political opinion. Such protection could only be provided after the threats had been brought to the attention of the authorities.

181 The issue went both to the bona fides of the appellant’s claim to fear persecution and to the question of whether any such fear was well-founded. The position of the appellant and her family was complicated by the alleged delay in reporting the threats and the ceasefire. In the absence of such a report, they were largely unprotected. She claims that they were being watched, but there was no violence or attempted violence. After the report to police, there were further threats and surveillance but again, no violence or attempted violence. State protection either was never tested or was effective. These circumstances may raise doubts concerning the appellant’s claims, but they do nothing to undermine the Tribunal’s finding that state protection was available. That conclusion was based on country information and the appellant’s conduct in reporting to the police the suspicious conduct in her unit block. Assuming that her account was true, she must have believed that there was some point in so doing.

182 The majority observes that the Tribunal did not make any specific finding as to whether circumstances in respect of state protection, as at the time of its hearing in July 2002, were the same as they had been in April-August 2000. However, as I have observed, there has been no suggestion that the findings were other than in accordance with the evidence. The majority also considers that the reference to the availability of state protection was made in passing, after the substantive reasons for the decision had been explained. However the Tribunal asserted that it was a matter which it took into account in reaching ‘its ultimate conclusion’. It explains the way in which it did so. I see no reason to reject the Tribunal’s statement. It is also said that there was no ‘supporting analysis’ provided. However s 430 of the Migration Act requires only that the Tribunal prepare a written statement setting out its decision, the reasons for the decision, findings on material questions of fact and references to the evidence or other material on which the findings were based. The Tribunal found that state protection was available, that view being based upon the country information and the appellant’s own conduct. I cannot see that it was required to do more. Again I point out that nobody has suggested that the evidence did not justify the Tribunal’s conclusion in this regard.

183 Finally, it is suggested that the weight which the Tribunal attached to the country information may have been affected by the way in which the balance of the proceedings were conducted which, as the majority considers, denied procedural fairness to the appellant. Subject only to the argument concerning the proper construction of s 424A, to which I will come in a moment, I see no denial of procedural fairness and therefore cannot see any justification for this criticism.

185 The majority considers that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 demonstrates that s 424A required the Tribunal to inform the appellant in writing of any information derived from her husband in the course of the hearing in the Tribunal, upon which information the Tribunal intended to rely in affirming the decision under review, and to invite her to comment upon it. The requirement for writing emanates from par 424A(2)(a). It is also said that, pursuant to s 424A, the Tribunal was obliged similarly to inform the appellant’s husband of any information given by her which was contrary to his interests as an applicant. I do not read SAAP as being authority for either proposition. There is one critical difference between the facts of that case and the facts of the present case. In SAAP a mother and daughter were applicants for protection visas. At the hearing the Tribunal indicated its intention to take evidence from another daughter of the applicant mother. She had already been granted a protection visa in Australia. That lady’s evidence was inconsistent with parts of the case advanced by the visa applicants. The majority of the High Court concluded that in those circumstances it was necessary that the evidence of the daughter be provided to the applicants in accordance with s 424A. It is clear from the report that the daughter’s evidence was not part of the applicants’ case. Subsection 424A(3) provides that the section does not apply to information which the applicant has given for the purposes of his or her or any application. In SAAP, the evidence called from the daughter, at the instigation of the Tribunal, was clearly not given by the applicants.

186 In the present case, however, the transcript of proceedings in the Tribunal indicates (at p 2) that both the appellant and her husband wished to give evidence. The question before the Tribunal was whether or not the appellant was a person to whom Australia owed protection obligations. Both the appellant and her husband appear to have accepted that each was a relevant witness in establishing that case. Subsection 424A(3) speaks of information given by the applicant. There is no reason to limit that category to information given "in evidence" by such applicant. It includes all information put before the Tribunal by the applicant. An applicant may well give information to the Tribunal by calling a "witness". In the present case the better view is that the appellant put before the Tribunal the evidence of her husband. Similarly, to the extent that the husband was a party to the proceedings, he provided information which came from his wife. The position may have been otherwise if one of them had, at the instigation of the Tribunal, addressed issues of which the other spouse was completely unaware. That was not the case. The decision in SAAP and, more particularly, the provisions of s 424A, have no application. I should add that I doubt whether the husband’s position is of any present relevance. I would have thought that in deciding whether the appellant was entitled to a protection visa, the Tribunal was obliged to afford procedural fairness only to the appellant and the Minister. If the appellant were successful, her husband and children would then also have claims to such visas. However I see no basis for treating the husband as a party to the proceedings to establish the appellant’s claim.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

The Appellant appeared in person.

Counsel for the Respondents:	M Fairfield

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	18 November 2005

Date of Judgment:	22 February 2006

•	friends and/or relatives,
•	Priest-in-Charge, Nugegoda Baptist Church;
•	LTTE;
•	a school in Colombo; and
•	the tenant of the former family home.

Federal Court of Australia - Full Court Decisions

Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16 (22 February 2006)