Indatissa v Minister for Immigration & Multicultural Affairs (includes corrigenda dated 5 September 2000) [2000] FCA 1119 (10 August 2000)

Last Updated: 8 September 2000

FEDERAL COURT OF AUSTRALIA

Indatissa v Minister for Immigration & Multicultural Affairs [2000] FCA 1119

PUBUDU KUMAR INDATISSA & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 713 of 1999

WEINBERG J

10 AUGUST 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 713 OF 1999

BETWEEN:	PUBUDU KUMAR INDATISSA FIRST APPLICANT JENNIFER VIJAYANTHI INDATISSA SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	10 AUGUST 2000
WHERE MADE:	MELBOURNE

CORRIGENDUM

Amendment to the Reasons for Judgment of Weinberg J delivered on 10 August 2000.

1. Paragraph 7 on page 2 the first sentence should read "The first applicant claimed that for some reason that he could not explain, the Sri Lankan authorities mistakenly believed that he continued to reside in that country."

Associate to Justice Weinberg

5 September 2000

FEDERAL COURT OF AUSTRALIA

Indatissa v Minister for Immigration & Multicultural Affairs [2000] FCA 1119

MIGRATION - review of decision of Refugee Review Tribunal - evidence or other material to justify the making of the decision by the Tribunal - non-existence of a particular fact - whether discrepancy in evidence constitutes a "particular fact" - whether decision was "based on" particular fact - whether assumed existence of particular fact contributed significantly to ultimate decision.

Migration Act 1958 (Cth) ss 36(2) , 476(1)(g), 476(4)(b)

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 224 followed

Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681 at 698 referred to

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 referred to

N258/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 referred to

Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 distinguished

Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366 referred to

Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236 referred to

Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865 at pars 19-24 referred to

Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 at pars 18, 20, 25-27 distinguished

Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 30 referred to

State of Victoria v Macedonian Teachers' Associations of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at 49 referred to

March v Stramare (E & MH) Pty Limited [1991] HCA 12; (1991) 171 CLR 506 referred to

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 referred to

Minister for Immigration and Multicultural Affairs v Li Yue [2000] FCA 856 distinguished

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 referred to

PUBUDU KUMAR INDATISSA & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 713 of 1999

WEINBERG J

10 AUGUST 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 713 OF 1999

BETWEEN:	PUBUDU KUMAR INDATISSA FIRST APPLICANT JENNIFER VIJAYANTHI INDATISSA SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	10 AUGUST 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal made on 26 November 1999 be set aside.

2. The application for protection visas be remitted to that body, differently constituted, to be dealt with according to law.

3. The respondent pay the applicants' costs of and incidental to this application.

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	V 713 OF 1999

BETWEEN:	PUBUDU KUMAR INDATISSA FIRST APPLICANT JENNIFER VIJAYANTHI INDATISSA SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WEINBERG J
DATE:	10 AUGUST 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 26 November 1999. The Tribunal affirmed a decision of a delegate of the respondent that neither the applicants, nor their two sons, were entitled to the grant of protection visas. The application for review is brought pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act").

Background

2 The first applicant is a citizen of Sri Lanka and was born in that country in 1968. Both he and his wife, who is the second applicant, are of Sinhalese ethnicity. He arrived in this country, together with his wife and elder son, on 7 July 1996. He did not, however, apply for a protection visa until June 1997.

3 Prior to his departure from Sri Lanka the first applicant completed tertiary studies in that country and was employed as an assistant marketing manager. His employer was a Tamil. He acquired many Tamil friends whom he met during the course of his employment.

The applicants' case

4 The first applicant claimed that he and his wife had resided in a large, four bedroom house in Colombo. About twice a month various Tamil friends and their relatives had stayed overnight at their home while these people finalised their arrangements to leave Sri Lanka. He claimed that he was not aware, at the time, of any political connections that these people may have had. He permitted them to stay at his home because at that time Tamil homes were constantly being raided by the police and the army. There was nowhere else for them to stay.

5 The first applicant claimed that in about October 1996, several months after he arrived in this country, he was telephoned by his mother and told that a group of soldiers had raided the family home and arrested a number of Tamils who were staying there at the time. These Tamils were suspected of being involved with the Liberation Tigers of Tamil Eelam ("LTTE"). He was told that the house had been damaged, and that both his parents had been subjected to harassment. He was also told that his father had been interrogated about the Tamil visitors, and that he had been physically mistreated by the soldiers who questioned him.

6 The first applicant claimed that it was only after this telephone conversation that he first appreciated that there may have been a connection between the Tamils who had stayed at his home, and the LTTE. He claimed further that he understood that the number of Tamils who came to stay at the family home had increased significantly after he left Sri Lanka. He was told that these stays had now become a weekly occurrence. He claimed that it then became apparent to him that the Tamils had taken advantage of the willingness of his parents to provide sanctuary to those who were in a desperate plight.

7 The first applicant claimed that for some reason that he could not explain why the Sri Lankan authorities mistakenly believed that he continued to reside in that country. The army continually questioned his parents about his whereabouts. He claimed that he had been told that a group of soldiers had raped his sister and indecently assaulted his mother as a form of payback for his involvement with members of the LTTE.

8 The first applicant relied upon a number of letters which, he said, supported these claims. One of these letters is of crucial importance to the application before this Court. It is dated 3 September 1997 and purports to have been written by his father. It is in Sinhalese, but was translated on behalf of the first applicant by Mr Wimoloeiri Jayakody. Mr Jayakody is a practising solicitor in Victoria who claims to be proficient in both Sinhalese and English. His written translation of the first paragraph of that letter was as follows:

"For your information

It was very common that the Tamil friends and their colleagues of my son Pubudu Indatissa visited and stayed at our house very frequently. Since our house is very large they visited and stayed at our house several times for a month. They came and stayed like this mainly for the purpose of getting their documents organized, travel abroad. Staying at our place like this had been happening for a long time." (emphasis added)

9 In addition to the various letters relied upon by the first applicant, he also called two witnesses to give evidence before the Tribunal.

10 The first was a Tamil friend whom he had met several months after his arrival in Australia. That witness said that he had visited Sri Lanka either late in 1998, or early in 1999, and had taken with him a small gift for the first applicant's parents. He said that because he did not speak Sinhalese terribly well he had been accompanied on his visit to their home by a friend who spoke the language. He described how he had met the first applicant's father who bore signs of having been subjected to violence, and who told him that he had been struck by a soldier with a rifle butt. He said that the first applicant's parents had obviously been uncomfortable having a Tamil in their home. After a short time they had asked him to leave, and not to return.

11 The second witness called was the first applicant's brother-in-law. He said that he had visited the family home in February 1997 during a trip to Sri Lanka. He had stayed for about a half hour. The first applicant's parents had told him of the mistreatment to which they had been subjected during the preceding months. They described how they were required to report, on a regular basis, to a local army camp. The first applicant's father appeared to be badly bruised and was unable to walk. He told him that soldiers frequently searched their home, obviously intent on locating the first applicant.

The Tribunal's findings

12 The Tribunal proceeded upon the footing that each applicant was required to persuade it that the requisite elements for a protection visa had been made out. After summarising the applicants' claims, and the evidence led in support of those claims, the Tribunal commenced its findings as follows:

"Given the substantial number of Tamil and Sinhalese people in Colombo the Tribunal accepts that it may well be common for Tamil people to stay in the houses of Sinhalese people. It accepts that some accommodation facilities in Colombo that were traditionally used by Tamils have been closed in recent years and that security raids have generally focused on Tamil areas. Evidence cited below also indicates that rents charged to Tamils are often above the market rate.

As to whether Tamils actually stayed at the applicant's family house the Tribunal notes discrepancies in the evidence as to the frequency of those stays. At the hearing the applicant said that Tamils stayed at his house about once per month for about a year immediately prior to his departure from Sri Lanka. In his statement of 27 June 1997 he gave similar evidence saying that Tamils stayed once or twice per month. In a letter from the applicant's father of 3 September 1997 from the applicant's father to the applicant, but headed "For your information", it is stated that Tamils stayed at the family house "several times for a month". In contrast to the applicant's evidence that there were occasional overnight visits the evidence of his father is that the visits were of much longer duration." (emphasis added)

13 The Tribunal then observed that it "defied credulity" that it would never have occurred to the first applicant that the Tamils who had stayed overnight at his home might have been associated with the LTTE. Likewise, the Tribunal rejected his claim that he had been unaware that it was an official requirement to register all Tamils who stayed in Colombo. This was a matter, the Tribunal concluded, which would have been common knowledge to all Sinhalese.

14 The Tribunal continued:

"Any action against the applicant or family members due to a failure to register Tamil visitors would be in accordance with a law of general application and does not disclose a Convention reason. In view of the implausibility of the applicant's evidence in that regard and inconsistencies in the evidence as to the frequency of the stays the Tribunal concludes, however, that the claim of having Tamil guests is not credible." (emphasis added)

15 The Tribunal then referred to other facts which it said supported its conclusion that, prior to his departure from Sri Lanka, the first applicant had never had Tamil guests at his home. It noted, for example, that no action had ever been taken by the government authorities against him. The Tribunal noted also that he had left Sri Lanka under his own name, using his own passport. It considered it peculiar that he had waited nine months from the time that he had learned that his parents were being mistreated until he applied for a protection visa.

16 The Tribunal specifically rejected the first applicant's claim that, after he left Sri Lanka, his parents had harboured Tamils who were connected with the LTTE. It explained its reasons for rejecting that claim in the following terms:

"The Tribunal has found that the applicant did not himself accommodate Tamils in the family home. Additionally, it does not find it credible in the circumstances of this case that LTTE operatives from the north would seek relative sanctuary at the home of a Sinhalese family that has no links to them, except allegedly through the applicant's former boss, for it would expose both them and the Tamils to unusual risk."

17 The Tribunal then turned to matters of a more general nature. It considered various reports emanating from international sources concerning conditions in Sri Lanka. These reports suggested that there were no plausible recent accounts of Sinhalese being suspected of sympathising with the LTTE. Sinhalese would not normally have anything to do with that organisation, even if they were to permit Tamils to stay overnight at their home. The reports described as implausible the suggestion that the police would impute support for the LTTE to a Sinhalese householder who had merely permitted Tamils to lodge with him. They concluded that it was not credible that any Sinhalese would sympathise with, or support, the methods or activities of the LTTE.

18 These reports were relied upon by the Tribunal to support its conclusion that it was unlikely that the authorities had interrogated or mistreated the first applicant's father. The Tribunal also rejected his claim that both his sister and his mother had been sexually assaulted. It rejected, as fabricated, the evidence given by his Tamil friend, and by his brother-in-law.

19 The Tribunal turned next to consider a series of letters which were relied upon by the first applicant in support of his case. These included a letter dated 18 July 1997 purportedly written by his father's treating doctor. The Tribunal concluded that this letter was contrived, and probably not genuine. It made the same finding in relation to a letter dated 22 July 1997 purportedly written by an attorney and public notary, and a letter dated 3 October 1997 purportedly written by a justice of the peace.

20 The Tribunal then turned to a series of four other letters which had been written by the applicant's father. It said:

"The content of four letters - 1 August, 3 September 1997, 31 October 1997 and 5 March 1998 - from the applicant's father appears highly contrived and self-serving. They contain details as to the duration of alleged visits by Tamils that is discrepant from the applicant's own evidence and a series of claims that are entirely at odds with available country information as to the risk to Sinhalese people of being accused of involvement with the LTTE, even if they had actually accommodated Tamils." (emphasis added)

21 The Tribunal's conclusion was as follows:

"The Tribunal has found that the applicant did not have Tamil visitors as claimed by him. Additionally, it notes aforementioned and unqualified DFAT information indicating that Sinhalese people would not come under suspicion for any association with the LTTE. It further notes that there is no documentary evidence of Sinhalese people being detained on suspicion of involvement with the LTTE. In that regard the Tribunal prefers the advice of DFAT that has remained strong and consistent since 1995 to the effect that Sinhalese people are not at any risk at all of being associated with the LTTE in the minds of the authorities.

In any event, the present applicant is not a person who has accommodated Tamil people such that there could be any basis at all for a suspicion that he is even sympathetic to the LTTE. While conceding that there might arise very rare instances where, at least temporarily, a Sinhalese person might be suspected of harbouring LTTE members, the facts of the present case do not support such a finding or provide any credible basis for a finding that the applicant faces a real chance of persecution for any Convention reason.

In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any Convention reason." (emphasis added)

The grounds of the application for review

22 The applicants' grounds for an order for review, as amended, are as follows:

"1. In breach of s 476(1)(g) (4)(b) [sic] there was no evidence or other material to justify the making of the decision in that the Tribunal based its decision on the existence of a particular fact which did not exist.

(i) the fact that the evidence of the applicant and that of the applicant's father contained in a letter of 3 September 1997 regarding the frequency of stays at the applicant's house by Tamils prior to his departure from Sri Lanka was not the same or to the same effect, alternatively the fact that the applicant's father stated that the Tamils stayed at the family house "several times for a month" whereas he stated "several times in a month".

2. The decision involved an error of law being an incorrect interpretation of the applicable law contrary to s 476(1)(e) of the Act.

Particulars

The Tribunal misinterpreted the law relating to the definition of refugee for the purposes of the Act.

(i) It failed to properly interpret and/or apply the test of well-founded fear of persecution when having accepted the possibility of police visits to the applicant's house after his departure failed to consider the reason for their occurrence in light of its finding that he personally had not accommodated Tamil people and its categorical finding that Singhalese (sic) people are not at any risk at all of being associated with the LTTE in the minds of the authorities.

(ii) It failed to properly interpret and/or apply the test of well-founded fear of persecution for reasons of imputed political opinion by its reliance on material which concerned the actual sympathies of Singhalese (sic) not the perceptions of the authorities regarding assistance to the LTTE provided by Singhalese (sic).

3. The decision involved an error of law being an incorrect application of the law to the facts as found by the Tribunal contrary to s 476(1)(e) of the Act.

Particulars

The Tribunal misapplied the law relating to the definition of refugee for the purposes of the Act.

(a) The applicant refers to and repeats the particulars subjoined to paragraph 2."

The applicants' contentions

23 The applicants' principal contention, developed in both written and oral submissions, was that there was no evidence or other material to justify the making of the decision within the meaning of s 476(1)(g) of the Act. That section provides:

"476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(g) that there was no evidence or other material to justify the making of the decision."

24 It was noted, in that regard, that s 476(4)(b) qualifies that ground, and relevantly provides as follows:

"The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

...

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

25 The first applicant submitted that the Tribunal based its decision to refuse him a protection visa, in part at least, on the existence of what the Tribunal had believed to be a "particular fact", namely, that there existed a discrepancy between his account of the duration of the supposed visits by Tamil guests to his home, and his father's account of those visits. The Tribunal had, on no fewer that three occasions in the course of its reasons for decision, remarked upon the importance of this supposed discrepancy. It was submitted, however, that the "particular fact", namely the existence of that discrepancy, did not exist.

26 The applicant sought leave to rely upon an affidavit sworn by a NAATI registered interpreter and translator, Ms Tissa Amarasekera. Ms Amarasekera swore that she was familiar with both the Sinhalese and English languages and that she was competent to translate from Sinhalese to English. She had been asked to translate the first paragraph of the letter from the first applicant's father dated 3 September 1997. Her translation of that paragraph was as follows:

"Tamil comrades of Tamil friends of my son Pubudu Indratissa (sic) use to visit and stay at our residence frequently. Since our house is large these people use to come and stay several times a month. They said that mainly they come to organize the documents required for foreign travel. Over a long period they made it a practice to seek accommodation in this manner." (emphasis added)

27 There is a clear difference between Ms Amarasekera's translation of this paragraph, and that provided by Mr Jayakody. Mr Jayakody translated the first applicant's father as having said that Tamils had formerly stayed at their house "several times for a month". Ms Amarasekera translated that particular phrase as "these people use to come and stay several times a month". Her translation of what was in that paragraph accorded with what the first applicant had always said about this issue, and what he told the Tribunal. In short, the burden of her evidence was that the supposed discrepancy did not exist.

28 The issue concerning the supposed discrepancy is complicated further by events which occurred during the course of the hearing before the Tribunal. The first applicant was provided by the Tribunal with the services of an interpreter. It was common ground before me that this interpreter was regarded as NAATI accredited, and was accredited at the highest level in the Sinhalese language. The transcript of the hearing reveals that the first applicant spoke reasonable English, but that he required assistance from time to time

29 The transcript shows that the Tribunal referred to the first applicant's father's letter dated 3 September 1997 on two separate occasions. Initially it asked the first applicant how that letter came to be translated by someone who appeared to be a barrister. He replied, somewhat uninformatively, that he "met the barrister and got it translated". The Tribunal then observed that it was not an official translation.

30 The transcript then reveals the following exchange:

"MR BREWER: One of the claims in that letter is that Tamil friends of yours had stayed at the house very frequently, that they stayed several times for a month, and staying at your house like that, it happened for a long time. The letter is written on 3 September 97, which is two months after you left Sri Lanka.

INTERPRETER: That is what I said earlier. After I left Sri Lanka, they had come and stayed in my house more often than earlier.

MR BREWER: Well, that is not what the letter says. The letter says that they had been staying for a long time, and they had stayed for as long as a month at a time.

INTERPRETER: Does that say that they stayed for a month continuously? Does the letter say this?

MR BREWER: "Since our house is very large, they visited and stayed at our house several times for a month."

INTERPRETER: I know that they came and stayed several times in a month in my house, each month." (emphasis added)

31 Later, towards the conclusion of the hearing, the Tribunal returned to the subject of the supposed discrepancy. The transcript records:

"MR BREWER: Now, can I have the file back for a minute, because there's another letter. I'll get the first paragraph of that translated as well. This is another letter of 3 September 97, if you could just slowly read that also to [the interpreter].

INTERPRETER: The Tamil friends of my son Pubudu used to come and to take lodgings in the house of - they were in the habit to come and stay in our house several times a month, as our house is a large one. Primarily they came and stayed in the house in order to get the documents for leaving the country. They have been taking lodgings in our house for a long time. That's the first paragraph.

MR BREWER: Okay, well, can I have that back. They would appear to accord with the translations, at least of those paragraphs, but as I pointed out before, are not necessarily consistent with the evidence the applicant gave about frequency of Tamils staying at the house in the period.

INTERPRETER: These are the letters sent by my father after my departure from Sri Lanka to Australia.

MR BREWER: Yes, I understand that.

INTERPRETER: I think the letters suggested they came often and stayed for longer periods in the house after my arrival in Australia. Yes, they had come out three or four times a month.

MR BREWER: Okay, well, you've given that evidence, and that is something I'll need to consider, along with all of the other evidence that's been given, the material in the files and the submission that's been made on your behalf, then I'll write a decision, and the reasons for that decision. ..." (emphasis added)

32 It may be seen from the passages set out above that the Tribunal appeared somewhat confused as to the effect of the interpreter's translation, and whether it accorded with that provided by Mr Jayakody. It is of particular significance that the last matter which the Tribunal addressed during the course of the hearing related to the translation to be accorded to the letter of 3 September 1997. Plainly the Tribunal was concerned by the discrepancy between what Mr Jayakody had attributed to the first applicant's father, and what the first applicant had said in his evidence before it. The truth was that the Tribunal's accredited interpreter did not support Mr Jayakody's translation. His evidence to the Tribunal was to the effect that there was no discrepancy between the account given by the first applicant, and that given by his father. Why the Tribunal did not act upon the interpreter's translation, rather than that of Mr Jayakody, was never explained.

33 There is clear authority for the proposition that this Court may receive evidence not led before the Tribunal in circumstances where the ground of review relied upon is that contained in s 476(1)(g) of the Act - Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 224; Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681 at 698; and Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854. Proof that a fact found by the Tribunal to exist does not exist must, of course, be by admissible evidence - N258/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 per Katz J.

34 The respondent objected to Ms Amarasekera's evidence being received, though her affidavit was acknowledged to be in admissible form. There was no suggestion before me that her translation was other than accurate. It was, in any event, consistent with that of the Tribunal's accredited interpreter. No attempt was made by the respondent to adduce evidence to rebut what Ms Amarasekera said, thought the respondent could have sought leave to do so, had it thought it appropriate to controvert what she said. It may reasonably be assumed, therefore, that the respondent tacitly concedes that Mr Jayakody's translation was erroneous, and that the supposed discrepancy between the first applicant's account, and that of his father, did not exist.

35 In my opinion, Ms Amaresekera's evidence is plainly admissible, and should be received. Her evidence, together with what the interpreter said during the course of the hearing, makes it abundantly clear that there was in fact no discrepancy of the type referred to by the Tribunal in its reasons for decision.

36 It is obvious, of course, that even if it is established that the particular fact found by the Tribunal did not exist, that does not, of itself, mean that the conditions required under s 464(4)(b) are satisfied, or that ground of review contained in s  476(1)(g) of the Act is made out. Section 476(4)(b) of the Act requires the Court to find that the Tribunal based its decision to reject the applicants' claim to refugee status on the existence of the particular fact described above. The respondent submitted that the supposed discrepancy had not formed the basis of that decision, and that the decision could, in any event, be justified on other grounds.

37 The leading authority dealing with the expression "based the decision on the evidence of a particular fact" found in s 476(4)(b) is Curragh Queensland Mining Limited v Daniel (supra). That case was decided under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, it has been held to be applicable also to s 476(4)(b) of the Act.

38 In Curragh Black CJ (which whom Spender and Gummow JJ agreed) said at 220-221:

"The fact in question was clearly a "particular fact" and, in my view, the decision was "based" upon it. If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to "proof of the non-existence of a fact critical to the making of the decision" [my emphasis]. See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word "critical" to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision.

Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review." (emphasis added)

39 In Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 a Full Court comprising Lee, Whitlam and Weinberg JJ dealt with the conditions necessary for s 476(4)(b) of the Act to be met. In that case, the Court was not persuaded that the decision to refuse the appellant a protection visa was, in any relevant sense, based on the existence of the particular fact identified as being a fact which did not exist. That fact seemed to the Court to have been of peripheral importance. It was but one of a number of matters taken into account by the Tribunal, any one of which would have been sufficient to lead it to refuse the application. It was not, in that sense, "critical" to the making of the decision.

40 In Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366 I concluded that the Tribunal's decision was based on the existence of two particular facts, neither of which existed. These "facts" were firstly a finding that the applicant's account of events had been a "recent invention" (when in truth he had given essentially the same account on several prior occasions), and secondly an attribution to the applicant of an embellishment of an account which he had never, in fact, put forward. Inderjit Singh was, however, a case where, absent the particular fact which had been wrongly found to exist, it could not realistically be said that there was "evidence or other material to justify the making of the decision".

41 In Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236 a Full Court comprising Lee, Goldberg and Kenny JJ adopted a similar approach in relation to the construction of s 476(4)(b) of the Act to that which I took in Inderjit Singh. The Court referred to the passage from the judgment of Black CJ in Curragh set out above, and then proceeded to hold that the decision of the Tribunal had been based on the existence of a particular fact which did not exist. The Court said, at par 17:

"The first matter to address is the Tribunal's statement to which we have referred earlier that "in his initial submissions, the applicant made no claims of being politically active until he joined HADEP". This statement proceeds on the basis that the appellant should have made such a claim in his initial submission or initial application for refugee status. When one looks at that initial submission or application, which is the initial application for a protection visa, one finds that the only question which is asked in the application, which is relevant to this issue, is "Why did you leave that country?" The reference to that country is a reference to the country to which the appellant does not wish to go back, namely Turkey and Cyprus. The appellant's answer to that question explained why he left Turkey. He referred to events which had occurred since 1992. A response to the question "Why did you leave that country?" would seem to require an answer which referred to the events which crystallised the decision to leave or acted as a catalyst in the appellant making that decision. In our view, that question did not warrant an historical analysis or explanation going back over twenty years. Thus, the fact which did not exist was the fact that the appellant was required to set out, in effect, the whole of his case which bore upon the issue of his political persecution. The Tribunal based its decision on that fact when it said:

"It finds that such a significant part of his history would not have been overlooked in setting out the core of his claims ..." (emphasis added)

42 A similar approach to s 476(1)(b) of the Act was taken by a Full Court comprising Spender, Madgwick and Emmett JJ in Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865 at pars 19-24. In that case the Tribunal disbelieved the applicant for reasons which included an entry in a particular employment book which was shown, on review before the primary judge, to be false. That led to the appeal being allowed and the Tribunal's decision being set aside.

43 The respondent relied in particular upon the judgment of Heerey J in Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962. There his Honour dealt with the construction of s 476(4)(b) of the Act. His Honour explained (at par 18):

"A literal reading of s 476(4)(b) might suggest that where a decision-maker treated two or more facts as material to the decision, then the decision was "based on" all of such facts, in the sense that each fact formed part of the total material which supported the decision."

44 He continued (at par 20):

"But to return to the rather different question touched on above, when is a decision is "based on" a particular fact? Does s 476(4)(b) assume that there may be facts relevant to a decision, but some may be more important than others, so that the decision is only "based on" facts of the former kind? If so, what are the criteria for ascertaining this superior degree of importance (or relevance)?"

45 His Honour then dealt with the discussion in Curragh of the corresponding provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth). He observed at pars 25-27:

"Even if, contrary to the view I have reached, the discrepancy between the applicant's account of the shooting and other accounts and the non-occurrence of political violence in Sri Lanka outside election times were "facts" which did not exist, the Tribunal's decision was plainly in my view not "based" on the existence of those facts, or either of them.

In the circumstances of the present case the appropriate metaphor is not the chain or the fork in the road, but rather the net. A net does not necessary [sic] fail because one or more of its constituent strands fail. It all depends on how strong the remaining strands are and the size or mass or power of the object which the net is being used to restrain or support. There were a number of other strands, unchallengeable in a review of this nature, which supported the Tribunal's conclusion. The Tribunal, which heard the applicant in person and engaged in dialogue with him, simply did not accept him as a truthful person. Moreover there was unarguable circumstantial evidence, and in particular his staying in Sri Lanka and waiting for low season airfares, which weighed heavily against the acceptance of his case.

As a matter of rational decision making, the decision was well supported by facts quite separately from the allegedly non-existent facts."

46 His Honour proceeded to dismiss the application for review.

47 The meaning of the expression "based on" was considered by me in a different legislative context in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 30 and, on appeal, in State of Victoria v Macedonian Teachers' Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at 49. In that context the expression "based on" was held to encompass the meaning of "by reference to" rather than the more limited meaning of "by reason of". That is not the position in the present case.

48 In the context of s 476(4)(b) of the Act, whether the decision-maker based the decision on the existence of a particular fact seems to me to turn upon whether there was a sufficient causal link between the supposed fact, and the decision. However, that causal link need not be understood in any "but for" sense. It need not be the sole, or even the predominant, factor behind the decision. It is sufficient if the link between the supposed fact and the decision is tangible, and the assumed existence of the fact contributed significantly to that ultimate decision. In other words, the issue of causation is one of fact. It is not to be determined as a philosophical or scientific question, but by the application of common sense - March v Stramare (E & MH) Pty Limited [1991] HCA 12; (1991) 171 CLR 506; and Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 387 per Mason CJ.

49 In my opinion the Tribunal's finding in the present case that there was a discrepancy between the account given by the first applicant as to the circumstances in which Tamil guests stayed at his home, and that supposedly given by his father, was a critical factor in its decision to reject his claim to refugee status. The supposed discrepancy led the Tribunal, in the words of Black CJ in Curragh, "to take one path in the process of reasoning rather than another, and so to come to a different conclusion".

50 The discrepancy identified by the Tribunal was one which was of fundamental importance to the issue of the first applicant's credibility. It was not one which could be explained in terms of a possible defect of memory. Assuming that the discrepancy existed, there were really only two possible explanations for its existence; either the first applicant was lying about the matter, or his father was.

51 It is obvious that were the Tribunal to make either of those findings, the first applicant's case would suffer irreparable harm. That case depended almost entirely upon his account of what had occurred before he left Sri Lanka being accepted. That in turn depended, to a considerable degree, upon his father's account of the same events being at least broadly consistent with his own.

52 It is important, in my view, to note that the very first matter which the Tribunal addressed when it came to state its findings in its reasons for decision was the existence of the supposed discrepancy. It returned to this matter twice more, and it was almost the last issue considered by the Tribunal when it came to summarise its conclusions.

53 In my opinion, it is likely that the Tribunal's finding that the first applicant had deliberately lied about the visits by Tamils to his family home affected its subsequent findings, at least to the extent that these were in any way dependent upon his credibility. I note that the Tribunal described a number of his other claims as "defying credulity", though it is important to observe that it did so against the background of an earlier finding that he had lied about the visits by Tamils to his home. I make no comment about whether language as forceful as that used by the Tribunal was warranted. However, a finding of that type becomes far easier to make when a decision-maker has already determined that the claimant has lied about a matter which is fundamental to his claim. The Tribunal's findings as to those other claims "defying credulity" are, in that sense, not truly "parallel", in the sense in which that word is used in Curragh, but rather intertwined with, or at least linked to, its first finding.

54 The claim by the first applicant for refugee status depended almost entirely upon the Tribunal accepting that Tamils had stayed as his guests at his home in Sri Lanka. The rejection of that claim meant, in effect, that there was nothing left for the Tribunal to consider. The fact that the Tribunal went on to deal with other aspects of his claim, and considered the weight to be attached to other claims that he made, rejecting a number of them as "defying credulity", does not mean that its decision to refuse to grant him refugee status was not relevantly "based on" the existence of the supposed discrepancy.

55 I am satisfied that the supposed discrepancy constitutes a "particular fact" within the meaning of s 476(4)(b) of the Act. I am also satisfied on the evidence before me that that fact did not exist. In my opinion, the Tribunal's decision to reject the claim to refugee status was relevantly based on the existence of a particular fact that did not exist.

56 As the Full Court noted in Minister for Immigration and Multicultural Affairs v Li Yue [2000] FCA 856, the fact that the requirements of s 476(4)(b) are met is not the end of the matter. The ground of review relied upon by the applicant is that contained in s 476(1)(g). Section 476(4)(b) is, in one sense, no more than an adjunct to that ground, though the interrelationship between these two provisions is not free from conceptual difficulty. Can it be said that, notwithstanding the importance to its decision of the Tribunal's finding that there was a discrepancy, that finding being of a non-existent fact, the present application must still fail because it cannot be demonstrated that "there was no evidence or other material to justify the making of the decision"?

57 It is clear that the words of s 476(1)(g) must be given their ordinary and natural meaning. To suggest that this ground of review cannot be made out where there is any evidence or other material which might conceivably have justified the making of the decision would be to deprive the section of any meaningful role as a ground of review. It would be to introduce into the words of the section a qualification which is notably absent from it. If an applicant who has otherwise satisfied the requirements of s 476(4)(b) is to be denied relief because the requirements of s 476(1)(g) are not met, it must be because the evidence or other material relied upon to support the decision is of such weight, that, quite apart from the finding of fact which ought not to have been made, it points strongly to the conclusion that the decision was justified. That was precisely what occurred in Chopra. It is not, however, the position in the present case.

58 The only "evidence or other material" before the Tribunal in the present case which was separate from its views about the first applicant's credibility (affected as those views undoubtedly were by its finding that he had lied about a matter of fundamental importance), was the type of generalised information about conditions in Sri Lanka, which would not ordinarily carry sufficient weight to lead a decision-maker to reject otherwise credible evidence. The fact that the first applicant delayed in seeking a protection visa for some nine months is hardly sufficient to justify the decision to refuse his application. If one removes from the equation the rejection by the Tribunal of the pivotal facts relied upon in support of the claim, and its finding that the first applicant had lied about those matters, the remaining facts are nowhere near sufficient, in my view, to justify the making of the decision.

59 The present case is, therefore, plainly distinguishable from both Chopra and Fernando. It is also distinguishable from Li Yue. It falls squarely within the principles laid down in Curragh and, in particular, to that part of the reasoning of the Court which spoke of a decision-maker being led "to take one path in the process of reasoning rather than another". For these reasons the decision of the Tribunal must be set aside, and the application remitted to that body, differently constituted, to be dealt with according to law.

60 Having regard to this conclusion, it is unnecessary for me to deal with the other grounds relied upon in support of this application for review. I should say, however, that in my view, there is no substance in ground 2. That ground seems to me to do no more than invite the Court to engage in merits review. The fact that it was argued under the guise of an elaborate and somewhat artificial reading of the Tribunal's reasons for decision does not justify devoting any detailed reasons to what is obviously a ground devoid of any merit.

61 Equally, in my opinion, there is no substance in ground 3. The applicants' contention that the Tribunal erred in failing to refer specifically in its reasons for decision to a particular item of evidence to which reference was made in submissions before it, and also in failing to set out why it preferred other information from other sources, is not, in my opinion, capable of being sustained in this case. The item of evidence not addressed by the Tribunal in its reasons for decision, namely the views concerning conditions in Sri Lanka of the Canadian Immigration and Refugee Board, was hardly likely to have influenced the Tribunal to find for the applicants. Section 430 of the Act did not require the Tribunal, in the present case, to provide an explanation as to why it preferred other, inconsistent evidence, which came from DFAT and other sources. The recent decision of a specially constituted Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 affords no assistance to the applicants in that regard.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated: 10 August 2000

Counsel for the Applicant:	Mr JA Gibson
Solicitors for the Applicant:	Erskin Rodan & Associates
Counsel for the Respondent:	Mr CG Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 June 2000
Date of Judgment:	10 August 2000