1419940 (Refugee)

[2016] AATA 3378

1419940 (Refugee) [2016] AATA 3378 (12 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419940

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Christian Carney

DATE:12 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 12 February 2016 at 3:13pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

1. The applicant arrived in Australia [in] July 2013 as the holder of a [temporary] visa with a passport issued to him by the Islamic Republic of Pakistan (Pakistan).  He applied for the Protection visa [in] March 2014, claiming to fear persecution in Pakistan for reasons of his religious beliefs, practice and identity as an Ahmadi (or Ahmaddiya) Muslim.  He was interviewed by a delegate of the Minister for Immigration who accepted he was a practicing Ahmadi Muslim and had experienced discrimination and harassment as an Ahmadi, but, in light of his delay in applying for the Protection visa after his arrival, the delegate did not accept he had suffered actual physical harm as claimed, and did not accept he had a genuine fear of being persecuted, or that he was at risk of being persecuted in Pakistan in the reasonably foreseeable future.   

2. The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.  In considering these issues, the Tribunal has applied the law set out in Appendix 1.

3. For the reasons set out below, in light of the generally accepted situation that the Ahmadi Muslim community faces in Pakistan, in the Tribunal’s view, the only issue for determination in this matter is whether or not the applicant is in fact a genuine, practicing Ahmadi Muslim, and if so, whether he would wish to continue to practice his faith in the future. 

4. He has consistently maintained since his arrival that he was born [in] the Punjab province on [date] and that he is a practicing Ahmadi Muslim.  He provided detailed and persuasive evidence to the Department about his past and current practice, and, importantly, he has provided written confirmation from [two organisations] that is he is an active member of the Ahmadi community in Australia and a practicing Ahmadiyya Muslim.  [In] February 2016 a Tribunal officer contacted the office of [one organisation] and spoke with a representative of the organisation who confirmed the authenticity of the letters the applicant had provided to the Tribunal and confirmed that the applicant was known to the organisation and is a practicing Ahmadi Muslim.  The Tribunal also notes that his passport lists his religion as ‘Ahmadiya’. 

5. For these reasons, on the evidence before it, the Tribunal accepts that the applicant is a national of Pakistan and is a practicing Ahmadi Muslim.  It accepts that, in the event he returned to Pakistan, he would wish to continue his practice as an Ahmadi Muslim and that he would continue to identify as an Ahmadi Muslim. 

6. In light of these findings, the Tribunal must consider whether the applicant’s fears of being persecuted on return are ‘well-founded’.  The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[1]

   … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

   The High Court’s decision in Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring, however, the chance of it occurring must be more than “far-fetched” or “remote”,[2]  and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”; a fear “is not well-founded if it is merely assumed or if it is mere speculation”.[3]  

   [1]     Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

   [2]     Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.

   [3]     Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.

7. The courts have made it clear that “proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution.”[4]  What the Tribunal must determine is whether, on the basis of the circumstances that exist now, his fears of future harm are well-founded, as understood in the terms set out above.  The applicant claims he would be subjected to serious harm by Islamic extremists and that he would be at risk of prosecution for blasphemy and harassment and mistreatment by the police and government because of his religious beliefs, practice and identity as an Ahmadi Muslim. 

   [4]     See Abebe v The Commonwealth (1999) 197 CLR 510 at [192] per Gummow and Hayne JJ.

8. In considering whether his fears are well-founded, the Tribunal has had regard to a range of independent information about a number of different matters relating to the issues raised by the applicant, including the DFAT ‘Country Information Report: Pakistan’ dated 15 January 2016 and reports from the US State Department, the UK Home Office and the Canadian Immigration and Refugee Board of Canada, as well as reports from UNHCR, Amnesty International, Human Rights Watch and other relevant media reports. 

9. According to DFAT, the Ahmadi community in Pakistan has an estimated population of between 400,000 and 500,000 who live mostly in the Punjab.[5]  DFAT advises that Ahmadis are not recognised as Muslims under Pakistan’s constitution and there are a number of discriminatory laws which inhibit their right to practice their religion openly:

   3.15 A number of discriminatory laws inhibit Ahmadis’ rights to practise their religion openly. Although Ahmadis identify as Muslim, the Constitution describes them as non-Muslim. Under Ordinance XX – upheld by the Supreme Court – Ahmadis may not identify, or ‘pose,’ as Muslims. They are also barred from worshipping in non-Ahmadi mosques or public prayer rooms; performing the Muslim call to prayer; using the traditional Islamic greeting in public; publicly quoting from the Quran; preaching in public; seeking converts; or producing, publishing and disseminating religious materials. These acts are punishable by imprisonment for up to three years. Ahmadis also have no representation in Pakistan’s Council of Islamic Ideology. Ahmadis are exempt from the otherwise mandatory 2.5 per cent zakat deductions on personal income.

   3.16      Ahmadis continue to experience political discrimination. Changes to the electoral system in 1985 established a separate registration list for non-Muslims.  While electoral reforms in 2002 removed the distinction between Muslims and non-Muslims, Ahmadis must still register on a separate, Ahmadi-specific list. In the 2013 general elections, many Ahmadis refused to register on this list and were therefore unable to vote.

   3.17      The Ahmadi community has told DFAT that Pakistani authorities have demolished, restricted access to, or forcibly occupied Ahmadi places of worship.  Mobs have also reportedly set fire to some Ahmadi places of worship, and Ahmadi graves have been desecrated and their dead disinterred.  The Ahmadi community has also reported the closure of Ahmadi publications, removal of Ahmadi students from schools and universities, and reporting of Ahmadi communities en masse to local police forces for unspecified crimes.

   3.18      Since the promulgation of Ordinance XX, there has been an increase in the number of physical attacks against the Ahmadi community in Pakistan.  According to the Human Rights Commission Pakistan (HRCP), 11 Ahmadis died in sectarian violence in 2014. On 17 July 2014, for example, an Ahmadi grandmother and her two granddaughters died when a mob set fire to their house in Gujranwala, Punjab.

   3.19      According to the Ahmadi community, authorities have colluded and participated in some of these attacks.  The leaked Abbottabad Commission report also suggests that police in Lahore protected perpetrators of violence against Ahmadis in 2010.  DFAT is unable to verify these claims.

   3.20      DFAT assesses that Pakistan’s Ahmadi community is subject to a high level of official discrimination, which impacts their ability to freely practice religion and limits the extent of their political engagement.  Ahmadis are also subject to a moderate level of societal discrimination and a low level of violence, although this violence is generally mitigated by Ahamadis’ relatively high socio-economic status.

   [5]     ‘Country Information Report: Pakistan’, DFAT, 15 January 2016 at 3.13. 

10. In addition, information indicates that the victims of the misuse of blasphemy laws in Pakistan are, disproportionately, religious minorities.  Given that Ahmadis are forbidden to even refer to themselves as Muslims, it would be reasonable to consider that the risk of an Ahmadi being the victim of a misuse of blasphemy laws is greater than for other minority groups.  In its most recent ‘Eligibility Guidelines’, the United Nations High Commissioner for Refugees observed that Ahmadis were subject to the most severe legal restrictions and officially sanctioned discrimination of all religious minorities in Pakistan and that there had been an increase in violence against them for which the State did not provide protection.[6]

    [6]     ‘Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan’, United Nations High Commissioner for Refugees, May 2012, available at

11. In February 2015, the UK Home Office provided the following summary findings and recommendations in its ‘Country Information and Guidance – Pakistan: Ahmadis’:[7]

    2.2.6       There is clear evidence that the legislation is used by non-state actors to threaten and harass Ahmadis. This includes the filing of First Information Reports (FIRs) (the first step in any criminal proceedings), which can result in detention whilst prosecution is being pursued. Ahmadis are also subject to attacks by non-state actors from sectors of the majority Sunni Muslim population.

    2.2.11      If an Ahmadi is able to demonstrate that it is of particular importance to their religious identity to practise and manifest their faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code, they are likely to be in need of protection … Members of religious minorities accused of blasphemy, including Ahmadis, are likely to be in need of protection.

    2.3.1     Pakistani legislation, commonly known as the ‘anti-Ahmadi laws’, restricts the way in which Ahmadis can openly practise their faith.

    2.3.2     Where a person is at risk from the authorities because they would openly practice their faith on return in defiance of the restrictions in the Pakistan Penal Code, they would be unable to avail themselves to those authorities for protection.

    3.2.1     Ahmadis are prevented by law from calling themselves Muslims, or referring to their faith as Islam, preaching or propagating their religious beliefs, inviting others to accept Ahmadiyya teachings, or insulting the religious feelings of Muslims, calling their places of worship “mosques,” worshipping in non-Ahmadi mosques or public prayer rooms, performing the Muslim call to prayer, using the traditional Islamic greeting in public, publicly quoting from the Qur'an, or displaying the basic affirmation of the Muslim faith. The punishment for violation of these provisions is imprisonment for up to three years and a fine.  Ahmadis are restricted in building new houses of worship, holding public conferences or other gatherings, and travelling to Saudi Arabia for religious purposes, including the hajj.

    3.2.2     … “anti-Ahmadi laws” were used to target and harass Ahmadis, and ‘frequently accusing Ahmadis of blasphemy, violations of “anti-Ahmadi laws,” or other crimes. 

12. In the Tribunal’s view, this information supports the adoption of a sceptical view towards the proposition that the risk of harm to a person in the applicant’s circumstances, in returning to Pakistan and practicing his faith as an Ahmadi Muslim, which it accepts he would wish to do, is remote.  The Tribunal acknowledges the delegate’s concern that, considered in the context of the size of the Ahmadi population in Pakistan, the numbers who are seriously harmed could be said to be relatively low.  However, even if it is accepted that the applicant did not suffer serious harm in the past, the information before the Tribunal indicates that Ahmadi Muslims in Pakistan continue to face official and formal discrimination and that members of the faith are liable to prosecution for blasphemy, including being subject to arrest, detention and mistreatment if they come to the adverse attention of the authorities.  In addition, in the event they come to the adverse attention of one of the numerous Sunni extremist groups that operate throughout the country, which the information indicates is not an uncommon occurrence, they face a real chance of being subjected to significant physical mistreatment for reasons of their religious beliefs, practice and identity as Ahmadi Muslims. 

    [7]     Available at

13. Accordingly, having accepted that the applicant is a genuine and committed member of the Ahmadi Muslim faith, the Tribunal accepts that, in the event he returned to Pakistan, he would wish to continue to practice his faith in a community consistently with his past and current practice of his faith.  For these reasons, on the evidence and information before it, the Tribunal finds that, were he to do so, there is a small but nonetheless real chance that he would come to the adverse attention of the authorities or non-state actors who would view him as infidel.  In those circumstances, the Tribunal is unable to dismiss as remote the chance that he would be subjected to significant physical mistreatment.  Accordingly, the Tribunal accepts there is a real chance he would suffer serious harm for reasons of his religious beliefs, practice and identity as an Ahmadi Muslim if he returned to Pakistan now or in the reasonably foreseeable future.  As the agents of persecution feared by the applicant includes the Pakistani authorities, the Tribunal finds that he would not be able to obtain protection from the harm he fears.  Further, the Tribunal considers that the harm he fears is present throughout the country and, having carefully considered the available independent evidence, finds that there is no part of Pakistan to which he could reasonably be expected to relocate where he would be safe from the persecution he fears.

    CONCLUSION

14. For the above reasons, the Tribunal is satisfied that the applicant has a well-founded fear of being persecuted if he returned to Pakistan now or in the foreseeable future, and that, in the circumstances, it would not be safe or reasonable for him to relocate to another part of the country.  The Tribunal considers that the persecution which he is at risk of suffering involves ‘serious harm’ as required by s.91R(1)(b) of the Act, in that it involves significant physical harassment or ill-treatment.  The Tribunal finds that his religious beliefs, practice and identity as an Ahmadi Muslim are the essential and significant reasons for his fear of persecution as required by s.91R(1)(a).  The Tribunal is satisfied that the persecution he is at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason.  

15. Accordingly, for all of the above reasons, the Tribunal finds that the applicant has a well-founded fear of Convention-related persecution if he returns to Pakistan now or in the foreseeable future. The Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations and that he satisfies the criterion set out in s.36(2)(a) for a Protection visa. There is nothing in the evidence to suggest he has a right to enter and reside in any country other than his country of nationality, Pakistan, and the Tribunal finds that he is not excluded from Australia’s protection by s.36(3) of the Act.

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Christian Carney

    
    

    Member

    APPENDIX 1 - RELEVANT LAW

17. Section 65(1) of the Act provides that a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a Protection visa are set out in s.36 of the Act. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a Protection visa of the same class.

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration, ‘PAM3 Refugee and Humanitarian - Complementary Protection Guidelines’ and ‘PAM3 Refugee and Humanitarian - Refugee Law Guidelines’, and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Refugee criterion

19. Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention. Generally speaking, as a party to the Refugees Convention, Australia has protection obligations in respect of people who are ‘refugees’ as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

1. The High Court of Australia has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51. Sections 91R and 91S of the Act qualify certain aspects of Article 1A(2) for the purposes of the application of the Act and Regulations to a particular person.

2. There are four key elements to the Convention definition.  Firstly, an applicant must be outside his or her country.  Secondly, the applicant must fear persecution, which, according to s.91R(1) of the Act, must involve ‘serious harm’ and ‘systematic and discriminatory conduct’.  The expression ‘serious harm’ includes, for example, a threat to life or liberty; significant physical harassment or ill-treatment; or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2).  The High Court has said that persecution may be directed against a person as an individual or as a member of a group.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or condoned or be incapable of being controlled by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.  Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

3. Thirdly, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition: race, religion, nationality, membership of a particular social group or political opinion.  The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution.  The persecution feared need not be solely attributable to a Convention reason.  However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a).

4. Fourthly, an applicant’s fear of persecution for a Convention reason must be ‘well-founded’.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

5. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.  The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad.  Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

   Complementary protection criterion

6. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

7. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

8. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B).

   Credibility

9. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions including Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

10. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Foster J stated at 482 that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

11. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed at [25]:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

12. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”  Nevertheless, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

13. Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998) “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”  On this point, the Tribunal also takes into account the comments of Professor Hathaway in The Law of Refugee Status" (1991, Butterworths) at pages 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true: see MIMA v Rajalingam (1999) 93 FCR 220. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191]:

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.