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MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - applicant Sri Lanka and of Tamil ethnicity - whether decision of Tribunal properly considered whether the charged political climate alleged a well founded fear of persecution on the applicant - decision of Tribunal affirmed.

WAHW v Minister for Immigration [2003] FMCA 197 (6 August 2003)

WAHW v Minister for Immigration [2003] FMCA 197 (6 August 2003)
Last Updated: 13 August 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHW v MINISTER FOR IMMIGRATION
[2003] FMCA 197



MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - applicant Sri Lanka and of Tamil ethnicity - whether decision of Tribunal properly considered whether the charged political climate alleged a well founded fear of persecution on the applicant - decision of Tribunal affirmed.



Migration Act 1958 (Cth), ss.36(2), 474, 474(1)

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2

Re: Minister for Immigration Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 195 ALR 1

NAAV v Minister for Immigration Multicultural and Indigenous Affairs (2002) 193 ALR 449

SVBG v Minister for Immigration Multicultural and Indigenous Affairs (2003) FCAFC 121

SDAH v Minister for Immigration Multicultural and Indigenous Affairs (2003) FCAFC 49

Minister for Immigration Multicultural and Indigenous Affairs v WWAG (2003) FCAFC 60

Scargill v Minister for Immigration Multicultural and Indigenous Affairs (2003) FCAFC 116

Koulaxazov v Minister for Immigration Multicultural and Indigenous Affairs (2003) FCAFC 75

WACM v Minister for Immigration Multicultural and Indigenous Affairs (2003) FCAFC 93

SBBA v Minister for Immigration Multicultural and Indigenous Affairs (2003) FCAFC 90

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

SCAM v Minister for Immigration Multicultural and Indigenous Affairs (2002) FCA 964

NAND v Minister for Immigration Multicultural and Indigenous Affairs (2002) FCA 1521

WAAD v Minister for Immigration Multicultural and Indigenous Affairs (2002) FCAFC 399

Minister for Immigration Multicultural and Indigenous Affairs (1997) 191 CLR 599;

Abebe v The Commonwealth (1999) 197 CLR 510

Minister for Immigration Multicultural and Indigenous Affairs v Rajalingam (1999) 83 FLR 220

Minister for Immigration Multicultural and Indigenous Affairs v W64/01A (2002) FCAFC 12

Minister for Immigration Multicultural and Indigenous Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

WAGR v Minister for Immigration Multicultural and Indigenous Affairs (2003) FCAFC 6

Minister for Immigration Multicultural and Indigenous Affairs v Eshetu [1999] 197 CLR 611

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Roads Corporation v Dacakis (1995) 2 VR 508

Minister for Immigration Multicultural and Indigenous Affairs v Epeabaka (1999) 160 ALR 543 (FC)

Zuway v Minister for Immigration Multicultural and Indigenous Affairs (1998) 160 ALR 391

Associated Provincial Houses Ltd v Wednesbury Corporation (1948) 1 KB 223

SHJB v Minister for Immigration Multicultural and Indigenous Affairs (2003) FCA 502

Minister for Immigration Multicultural and Indigenous Affairs v Perera (2001) FCA 121

Re: Minister for Immigration Multicultural and Indigenous Affairs; ex parte Cohen (2001) HCA 10

Applicant:
WAHW



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 214 of 2002



Delivered on:


6 August 2003



Delivered at:


Melbourne (to Perth via video link)



Hearing Date:


24 December 2002



Judgment of:


Bryant CFM



REPRESENTATION

Counsel for the Applicant:


Mr MacIntyre



Solicitors for the Applicant:


Gregory Malcolm Grant McIntyre



Counsel for the Respondent:


Mr Allanson



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) THAT the Application be dismissed.

(2) THAT the Applicant pay the Respondent' s costs fixed in the sum of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 214 of 2002

WAHW


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This judgment relates to a decision of the Refugee Review Tribunal ("the Tribunal") made on 28 June 2002. The applicant, who is a citizen of Sri Lanka and of Tamil ethnicity, arrived in Australia on 12 January 2002. He lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") under the Migration Act 1958 ("the Act") on 25 January 2002. The application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") on 18 April 2002 and the applicant applied for review before the Tribunal. The Tribunal affirmed the delegate's decision not to grant a protection visa.

2. The application filed in the Federal Court of Australia on 10 July 2002 was transferred to this Court by order of Carr J on 2 October 2002.

3. The application sought prerogative relief under s.39B of the Judiciary Act 1903 (Cth) seeking to quash the decision of the Tribunal and requesting a rehearing.

Procedure

4. When the matter was argued before me on 24 December 2002, the decision of the High Court in S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs had not been handed down but was anticipated. Following delivery of judgment in that matter on 4 February 2002 both parties provided supplementary submissions in writing.

Background

5. The applicant is a citizen of Sri Lanka and of Tamil ethnicity. He was born in Jaffna and leaved in West Kondavil which was an extension of Jaffna city. He attended school in Kondavil between the ages of six and thirteen.

6. The applicant asserted that in 1989 the IPKF came and took control and took away his father. Subsequently the LTTE gained control but did not release his father. His father has not been seen since.

7. He further asserted that in 1995 his brother went off to school one day and did not return. He was unaware whether his brother had been a member of the LTTE or not.

8. In 1995 he asserted that some people came looking for him and he moved on the advice of his mother to a village about five kilometres away to stay with a distant relative. During this period, the army were advancing and people were increasingly displaced. He spent about four or five months in a placed called Piranbabi but when the LTTE told people to flee he and his guardian went to Mirusuvil. By the end of 1999 he had moved to Skandapurem where he stayed until the end of 2001. He stated that during this time he was effectively "on the run". The LTTE tried to force him to join them and although he avoided them most of the time they used him for non-military activities, like digging trenches, for about a week. In 2001 he was caught by TELO and taken to a military camp and beaten. He asserted was held for one week, blindfolded, kicked and attacked with sticks. He was accused of being an LTTE supporter.

9. He asserted that he suffered injuries to his limbs and face but was not taken to hospital, although he asked to be taken. He was unable to walk normally for about a month. He went to Colombo about two months after his release by train and stayed where his guardian had arranged. During his stay in Colombo he was apprehended and taken to another army camp in Colombo for two days. His guardian arranged for an agent to secure his release and a passport. On 9 January 2002 he left for Australia. He asserted that the incident led to fear of persecution for imputed political opinion as a young Tamil male from the north of Sri Lanka as well as his particular social group (his family - because of the disappearance of his father and brother).

10. In submissions lodged on his behalf, more general claims were made about the situation in Sri Lanka, the ceasefire, mistreatment of returned asylum seekers, and the treatment of Tamil people in Sri Lanka.

The Tribunal hearing

11. The Tribunal asked the applicant what he believed would happen to him if he returned to Sri Lanka. The applicant said it was impossible to live under Singhalese rule and that the LTTE would force him to join if he returned to Sri Lanka. He did not know where his friends were and he was not safe anywhere in Sri Lanka. He said the SLA and the police would not allow him to live in Colombo.

12. The Tribunal put to him the DFAT assessment of the changed situation of the Tamils since the peace process in Sri Lanka and the earlier assessment of the situation for returning Tamils. The applicant said failed peace initiatives had only resulted in a renewed conflict before. He said that the LTTE would not surrender their weapons until they got total autonomy and the government would never allow this. He said he would only return if there was a permanent solution and that he would be arrested on return because he had left secretly. He said that there is no-one in Colombo who could vouch for his identity and Tamils could not just turn up in Colombo - only the longstanding residents were treated without suspicion.

Findings and reasons

13. The Tribunal found that the applicant is a Sri Lankan citizen of Tamil ethnicity who was born in Jaffna. It did not accept that he faced a real chance of persecution by the Sri Lankan authorities, or by agents of the LTTE.

14. The Tribunal did not find the applicant to be a credible witness. It found that his evidence given to the delegate (especially) and then to the Tribunal contained many inconsistencies. The Tribunal hypothesised that some of the problems could have arisen from misunderstandings of communication, but not all of the problems could be explained in this way if the applicant had been relating truthful experiences. However, the Tribunal noted that --

"Most of the inconsistencies and mysteries are unnecessary to the reasoning in this decision".

15. The Tribunal did not accept that the applicant's father or brother were "taken" by the authorities or by the LTTE. It found his explanation for why his father was taken by either the Indian peacekeepers (or a pro-government Tamil group) and then the LTTE implausible. The Tribunal speculated that it was possible the applicant's father simply went missing in the conflict, but that was not what the applicant claimed and the Tribunal was not prepared to make a finding that his father was taken as he alleged. The Tribunal also said that even if it were wrong, it was not a factor which put the applicant at risk of persecution.

16. Insofar as his brother was concerned, even if the Tribunal were to accept that he had disappeared, his fate was entirely unknown and no conclusion could be drawn from it regarding risk to the applicant.

17. The Tribunal did not accept that the applicant himself was specifically targeted by the LTTE or the army prior to leaving Jaffna. It found he gave no cogent reason for the threat by reason of which he left.

18. The Tribunal accepted that the applicant came to Australia from Colombo but did not accept that he came via Colombo from Vavuniya and previously Vanni. The Tribunal noted that while it is no doubt possible to be smuggled into Vavuniya from the LTTE side, according to the DFAT report it would not be possible to obtain the necessary permission to stay there and then travel on to Colombo with the ease that the applicant claimed, because of the required documentation. Secondly, and the Tribunal noted, more importantly, the applicant first told the Tribunal that he had a second pass to travel to Colombo and then (in the hearing) that he used only the Vavuniya pass. The Tribunal felt that he would not have given inconsistent information had his version of events been accurate. Accordingly, the Tribunal did not accept that he had been detained by the SLA or TELO in Vavuniya, and mistreated as he claimed.

19. The Tribunal did not accept that he was living in Vanni as recently as 2001 or that his accounts of contact with the LTTE were credible.

20. The Tribunal did not accept that the applicant was ever detained in Colombo. The Tribunal noted that the applicant was unable to put this detention into any context. They noted that there was no incident directing the authorities attention to him. For example, a bombing and a cordon and search operation, or passing through a checkpoint without police registration. The Tribunal noted the applicant was unable to apply such context to his arrest.

21. The Tribunal found that the applicant had a passport at one stage and a national identity card and that there is no reason based on the evidence to believe that he did not have permission to be in Colombo. The Tribunal found that speculation that his documents were not genuine was only speculation and found that he had genuine documents. The Tribunal found that DFAT reports indicate that it would be highly unusual for him to be held more than briefly, to check his identity, on return to Sri Lanka.

22. The Tribunal found that available country information does not support the proposition that Tamils in general are persecuted in Sri Lanka. In Colombo, the applicant would be at risk of being stopped for identity checks. The Tribunal also found that --

"Serious harm can occur if Tamils are detained more than briefly, because they cannot establish their identity or reason for being in Colombo, or are suspected of being a member of the LTTE".

23. The Tribunal found that the chance of this happening to the applicant was remote. The Tribunal found that there was no evidence of other types of harm directed at Tamils in general for a Convention reason. Thus the Tribunal found there was no real chance of the applicant being harmed due to his ethnicity in the foreseeable future.

24. Finally, the Tribunal found that the applicant was living in Colombo and not in LTTE held areas and accordingly, the question of relocation did not arise, and that he could safely return to Colombo. The Tribunal further noted that even if it had accepted that he was an escapee from the LTTE-held areas, and risked being persecuted if he had to return there, it was not clear that it would be unreasonable for him to relocate to Colombo.

25. The Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The relevant law

26. Following the High Court decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) HCA 2, I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s 39B of the Judiciary Act 1903 notwithstanding s 474 of the Act.

27. In S157/2882 the High Court determined that the privative clause provision in s.474(1) of the Migration Act ("the Act") properly construed, is a valid enactment. It found the proper construction of the Act, including s.474 imposed an obligation of providing a fair hearing as a limitation upon the decision making authority. In Plaintiff 157/2002 v Commonwealth of Australia (2003) HCA 2 and in Re: Minister for Immigration and Multicultural and Indigenous Affairs; ex parte applicants S134/2002 (2003) 195 ALR 1, the High Court "read down" the otherwise broad terms of s.474. Since the handing down of that decision in February 2003, there has been some uncertainty as to the type of jurisdictional error which would enliven jurisdiction to make an order under s.39B of the Judiciary Act. In particular there has been some uncertainty as to whether a decision of the Full Federal Court in NAAV v Minister for Immigration Multicultural and Indigenous Affairs (2002) 193 ALR 449 has been overruled. That uncertainty has now been put to rest. In SVBG v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 121 the Full Court said at (20):

"In light of the High Court decision in S134 and S157, the jurisdiction of this Court in judicial review proceedings is broader than that on which the parties and the Court proceeded at first instance. It is clear from the High Court decisions that the Court's jurisdiction is limited to 'jurisdiction errors' (S157 at [76]) and that, in determining whether or not a particular error is a 'jurisdictional error' it is necessary to have regard to the whole of the Act, including s 474 (see S157 at [77] - [78]) however this is a significantly broader jurisdiction than that assumed by the primary Judge and the parties. In particular, it is clear that this Court has jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth)in relation to a breach of the Rules of natural justice (as understood in the context of the Act). This would include, for example, a failure to afford a fair hearing. It would also include a reasonable apprehension of bias. It is also clear that the Court has jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) where the Tribunal has proceeded on a misunderstanding of the law, at least in relation to defining its core task. This includes, in particular, a misunderstanding of the legal meaning of 'refugee')."

The applicant's case

28. The applicant contends that the error complained of jurisdictional error and it is therefore within the jurisdiction of the Court to review the decision pursuant to the Judiciary Act 1903. The jurisdictional error identified is that the decision maker had misconstrued the provisions giving it power to act so that the Tribunal failed to deal with the question remitted to it and decided a question not remitted to it. In particular, it is contended the Tribunal failed to apply the proper test for ascertaining whether there was a well founded fear of persecution where the Tribunal has taken into account that there is a change in the political circumstances of the country in question. It is contended it failed to do so by failing to ask the question whether a temporary ceasefire and peace talks would be sufficient to allay a well founded fear in the applicant based upon the applicant's past experience.

29. In particular, it was contended that:

a) First The Tribunal was obliged, and failed, to --

"evaluate the mental and emotional state and the objective circumstances..."

of the applicant in assessing whether he had a well founded fear of persecution. In this case it was contended that the Tribunal considered the evidence on objective standards but failed to make an assessment of the applicant's fear of persecution, taking into account his mental and emotional state.

Whether a fear is well founded, is to be answered by reference to the situation at the time of the determination, but cannot be answered in isolation from past experiences of the applicant. The Tribunal, it is contended, in reaching its conclusion whether or not the fear was well founded, made no attempt to link the current political situation to the past experiences of the applicant, or to consider whether, in the circumstances of his past experience, his fear would have been allayed by the changed political circumstances.

b) Secondly, it was argued that the Tribunal had failed to ask a correct question, that is whether a temporary ceasefire and peace talks would be sufficient to allay a well founded fear in the applicant based upon the past experience of the applicant.

That, it was contended, was the appropriate question to be asked given the findings of the Tribunal that the applicant is a Tamil born in 1978 and that the country information noted by the Tribunal as to; (a) the arrest and detention of young Tamils from the north and east; (b) disappearances, torture and arbitrary arrests in Sri Lanka, and institutionalised ethnic discrimination against Tamils; (c) the cease fire which came into force on 23 February 2002 had eased or improved the situation, but --

"only time will tell if the eastern command of the LTTE will respect the terms of the ceasefire, and if indeed both sides will uphold the ceasefire

and; (d) the fact that it will --

take time to break down the mistrust between sections of the Tamil and Singhalese community".

And further it was contended that the Tribunal had to take into account that it was assessing the plausibility of accounts given by people who may be understandably bewildered, frightened and perhaps desperate and who often did not understand either the process or language spoken by the decision maker/investigator.

c) Thirdly, it was contended that the Tribunal misdirected itself at law as to the proper test to apply to the assessment of the appellant's application for a protection visa (a jurisdictional error) in arriving at a state of satisfaction that an applicant has a well founded fear of persecution, by failing to take into account the possibility that alleged past events occurred, even though it found those events probably did not occur, foreclosing reasonable speculation about the changes of a hypothetical future even occurring. In particular:

i) The Tribunal failed to speculate as to the possibility that the applicant's father was taken by the authorities or the LTTE when the applicant was 11 years of age;

ii) The Tribunal failed to speculate as to the possibility that the applicant's brother disappeared as a result of persecution for a Convention reason when the applicant was 17 years of age;

iii) The Tribunal failed to speculate about the applicant being targeted by the LTTE or the army prior to leaving Jaffna;

iv) The Tribunal failed to speculate that the applicant came to Australia via Vavuniya and Colombo.

30. It was contended the Tribunal had recurrently asked the wrong question concerning the criteria for testing the credibility of evidence (a jurisdictional error) resulting in an incorrect application of the law to the facts. It was contended that the Tribunal misdirected itself as to the proper test to apply to the assessment of the appellant's credibility by making an assessment that the applicant was not credible based upon the speculation, without any evidentiary base as to alternative hypotheses in relation to past events of which the applicant provided evidence as follows:

a) The Tribunal speculated that the applicant's father and brother were not taken by the authorities or the LTTE.

b) That the applicant was not able to stay in Vavuniya.

c) That the applicant would not have forgotten whether he one or two passes to travel to Colombo in January 2002.

d) That the applicant was not detained and mistreated in Vavuniya.

e) As to the circumstances of his release and the duration of his reporting commission in Vavuniya.

f) He was not confined to the property in which he was leaving in Vanni.

g) That he was not required by the LTTE to perform work in Vanni.

h) That he did not lose his national identity card.

i) That he was not detained in Colombo.

j) That he had a genuine passport and a national identity card.

31. It was contended that the Tribunal engaged in speculation against the applicant, but not in his favour and in doing so misconstrued its obligation to interpret and apply legislation based upon international human rights obligations of the Commonwealth, beneficially.

The respondent's case

32. The respondent contended that in none of the matters raised by the applicant, had the applicant shown an error of such a nature that the decision of the Tribunal was not a decision under the Act. That is, that none of the matters indicated an error going to the jurisdiction of the Tribunal. If there was an error, the respondent contended it was an error within jurisdiction.

33. In relation to the particular error alleged, the respondent contended as follows:

a) The Tribunal did not err in failing to make an assessment of the applicant's subjective fear of persecution. The respondent submitted the proper test did not re quire the Tribunal to consider whether a fear previously held had been --

allayed

by changed circumstances. (See Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; SCAM v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 964 (von Doussa J); Mand v Minister for Immigration and Multicultural Affairs (2002) FCA 1521 at [18] - [19] per Kenny J.

b) A misdirection at law by failing to take into account the possibility that past events claimed by the applicant occurred, thereby foreclosing reasonable speculation about the chances of future events (of persecution) occurring, the respondent contended, did not raise a question of jurisdiction but invited the Court to enter into merits review.

c) As to whether the Tribunal asked the wrong question when setting the criteria for testing the credibility of evidence, the respondent contended that the question of credibility is a matter for the Tribunal, and even if the Court were to reach the view that a particular conclusion reached by the Tribunal was incorrect or the consequence of illogical reasoning that does not amount to jurisdictional error or give rise to any ground of review. The respondent contended that even if the Tribunal was wrong in the way in which it made a particular finding on credibility, that was not an error as to the nature of the jurisdiction it was to exercise and not subject to review under s.39B of the Judiciary Act.

d) As to whether the Tribunal erred in misconstruing its obligation to interpret and apply the legislation beneficially, the respondent contended that unlike the position in Plaintiff S157/2002 v Commonwealth (2002) HCA 2, no question of construction of the legislation (which required a construction which should accord with Australia's international obligations) arose in this case.

Conclusions

34. This is really the crux of the applicant's case. The other jurisdictional errors complained of relate to an assertion that the Tribunal failed to apply the proper test in relation to a well founded fear of persecution but to be successful that argument depends upon a finding that the factual matrix in which such a fear was held or could be held, existed. That was not the Tribunal's finding, however the applicant contends that the failure to make such a finding was an error on the part of the Tribunal going to jurisdiction.

35. The applicant's case rested heavily upon the contention that jurisdictional error occurred because the Tribunal applied a wrong test in failing to consider whether the fear of a reasonable person in the position of the applicant would be allayed notwithstanding the changed circumstances in Sri Lanka if the answer was no, then a continuing well founded fear ought to be accepted.

36. However, this argument assumes that the Tribunal accepted that prior to the changes in the country of nationality the applicant had a well founded fear of persecution. Such was not the finding of the Tribunal in this case.

37. In this case the Tribunal found that the applicant was not a particularly credible witness and did not accept that his father or brother had been "taken" by the authorities or the LTTE. It did not accept that he felt he was specifically targeted by the LTTE or the army prior to leaving Jaffna and did not accept that he had been detained in Vavuniya or in Colombo.

38. The applicant attacks the Tribunal's findings in --

"Failing to take into account the possibility that alleged past events occurred, even though it found those events probably did not occur, foreclosing reasonable speculation about the chances of a hypothetical future event occurring".

39. The law is now relatively well settled as to the task of the Tribunal in arriving at a state of satisfaction that an applicant has (or has not) a well founded fear of persecution.

40. The question to be addressed by the Tribunal is whether an applicant has 'a well founded fear of persecution for a Convention reason having regard to the possible past occurrences and possible future events'.( See WAAD v Minister for Immigration Multicultural and Indigenous Affairs (2002) FCAFC 399 at 38).

41. In Minister for Immigration and Multicultural Affairs v W64/01A (2002) FCAFC 12 at 38, French J said:

"Where the Tribunal finds that a past event has not occurred but cannot exclude the possibility that it did, that possibility may provide a basis for finding a well founded fear of persecution in the future - Abebe v The Commonwealth (1999) 197 CLR 510 at 544 - 545 (Gleeson CJ and McHugh J)

If the Tribunal has no real doubt that its findings as to past events are correct, it is not bound to consider the possibility that those findings are wrong - Rajalingam at 238. Depending on the importance of the asserted past event the failure to consider the possibility that it had occurred could constitute a failure to undertake the 'reasonable speculation' necessary to determine whether there is a substantial basis for the fear claimed of persecution - Rajalingam at 240... "

42. In WAGR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 6, the Full Court said:

"We note that Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 83 FCR 220 and the High Court cases there discussed (Minister for Immigration and Multicultural and Ethnic Affairs v Guo (1997) 191 CLR 559, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and Abebe v The Commonwealth (1999) 197 CLR 510 are concerned with situations in which the decision maker is uncertain as to past events which are relevant to whether a visa applicant has a well founded fear of a possible future event, namely the applicant's persecution. In such circumstances decision makers should take into account the possibility that the past events occurred in assessing whether there is a well founded fear. However, no occasion for this approach arises where there is no uncertainty in the mind of the decision maker. Nor should uncertainty be attributed to a decision maker where no lack of certainty appears from the reasons for decision. The cases where relevant uncertainty may be found are likely to be cases where the facts are inherently difficult to ascertain, such as whether persons with a known certain background have been persecuted on return to the country of origin. Wu Shan Liang and Guo are examples.'

43. Further, as was put by Kenny J in Rajalingam (1999) 83 FCR 220 at [146]:

"A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon doubtful basis, or because it adopts unsound or questionably reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [1999 197 CLR 611] at pars 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf par 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey J and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis (1995) 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC) ...

I agree with the remarks of Katz J in (Zuway v Minister for Immigration Multicultural and Indigenous Affairs (1998) 160 ALR 391) that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal."

44. This needs to be qualified at least to the extent that where the factual conclusion is so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached it, then there may be jurisdictional error: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at 230; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; per Selway J in SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 502.

45. In this case the Tribunal was not in any doubt as to past events. It exhibited no lack of certainty in its findings. The Tribunal found the applicant was not a particularly credible witness, and although it considered that part of his problems could have arisen from misunderstandings of communication, it noted that his evidence given to the delegate especially and to the Tribunal contained many inconsistencies which could not all be explained away if the applicant had been relating truthful experiences.

46. The Tribunal did not accept that the applicant's father or brother had been taken by the authorities or by the LTTE. It found his explanation for why his father was taken away by either the Indian peace keepers (or a pro-government Tamil group) implausible. The Tribunal speculated on what might have occurred but noted that this was merely speculation and not what the applicant was claiming.

47. The Tribunal found that the fate of the applicant's brother (even if it were to accept that he had disappeared) it was entirely unknown and no conclusion could be drawn from it regarding the applicant. That conclusion was clearly open to the Tribunal. The Tribunal took into account what was occurring in the country at the time and the applicant's assertion that he was targeted himself by the LTTE prior to leaving Jaffna. However it found that his evidence about the source of the threat and where it came from was inconsistent and that no cogent reason was given for it. Then, partly due to inconsistencies in his evidence and partly due to the implausibility of it, the Tribunal rejected the evidence that he had been detained in Vavuniya and mistreated as claimed. Similarly, the Tribunal did not accept that he had been detained in Colombo and their reasoning was based on the fact that he was unable to put this detention into any context. The Tribunal correctly in my view, considered the country information which did not support the proposition that Tamils in general are persecuted in Sri Lanka.

48. This is a case in which there was no uncertainty in the decision maker's mind, there is no logical inconsistency in the findings made by the Tribunal nor is the factual conclusion unreasonable in the Wednesbury unreasonableness sense. Thus, the Tribunal was not obliged to consider the possibility that its findings were wrong.

49. The applicant then contends that a jurisdictional error has been committed when setting the criteria for testing the credibility of evidence. This it is contended occurs by virtue of a recurring error on the part of the Tribunal to ask whether the evidence of the applicant is credible or plausible when assessed against counter-conclusions erected by the decision maker, based upon the decision maker's speculation as to facts of which there is no evidence or insufficient evidence to reach any conclusion as to them except on the basis of speculation. It is then contended that the Tribunal engaged in speculation against the applicant, but not in his favour and in doing so misconstrued its obligation to interpret and apply the legislation based upon international human rights obligations of the Commonwealth beneficially. Leaving aside, whether as a matter of law the last contention is correct, it involves as its premises a conclusion that the Tribunal has engaged in speculation against the applicant.

50. The question of credibility is a matter for the Tribunal. A conclusion reached by the Tribunal may be incorrect or the consequence of illogical reasoning, but that does not involve jurisdictional error or give rise to any ground of review. See Minister for Immigration and Multicultural Affairs v Epeanbaka (1998) 84 FCR 411 at 421; Minister for Immigration Multicultural and Indigenous Affairs v Perera (2001) FCA 1212 at [22] - [26]; and Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) HCA 10 per McHugh J at [37].

51. The various matters contended by the applicant to be the subject of speculation appear in paragraph 18 of the applicant's submissions filed 20 December 2002.

52. Paragraph 18 says:

"The Tribunal misdirected itself at law as to the proper test to apply to the assessment of the appellant's credibility by making an assessment that the appellants were not credible based upon speculation, without any evidentiary base, as to alternative hypotheses in relation to past events which the appellants provided evidence as follows."

There followed 10 instances in which it is asserted that there was speculation by the Tribunal.

53. I do not agree that the matters set out by the appellants in their submissions were all the subject of speculation by the Tribunal. The Tribunal speculated that it was possible that the applicant's father simply went missing in conflict but noted that was not what the applicant claimed and that the Tribunal made no finding that this occurred. The Tribunal said, correctly in my view, that

"Even if it did, it is not a factor which puts the applicant at risk of persecution."

54. The Tribunal did not speculate at all on the basis for the disappearance of the applicant's brother and noted --

"The fate of his brother (even if the Tribunal were to accept that he has disappeared) is entirely unknown and therefore no conclusion can be drawn from it regarding the risk to the applicant."

This is clearly correct on the evidence given by the applicant.

55. The balance of matters asserted to be speculative are not in my view speculation. They are findings by the Tribunal that it did not accept the evidence of the applicant. As an example, the applicant asserts that the Tribunal speculated --

"That the applicant was not required by the LTTE to perform work in Vanni."

In fact, what the Tribunal said (at Court book, p176) was --

"The Tribunal does not accept that the applicant would have been made to perform manual work for a week and then simply allowed to leave."

56. The Tribunal's decision was based upon the fact that it did not accept the applicant as a credible witness, not that it speculated as to other matters against him.

57. A similar submission was put to the Court in WAGR v Minister for Immigration Multicultural and Indigenous Affairs. As the Court there pointed out (at par 17):

"Secondly, although the Tribunal speculated as to what might have occurred, this was speculation of the type that is commonplace in reasons for decisions. Were it the sole basis for a positive finding of fact for which there was no other evidence the finding might not be sustainable. However, that is not this case."

58. Similarly it is not the case in this matter.

59. In essence, the Tribunal conducted an enquiry into whether the condition precedent for the grant of a visa had been established. It did not accept the applicant's account of the events leading to his departure from Sri Lanka and concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and thus did not meet the criterion for a protection visa. The application must therefore fail.


I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 22 July 2003
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