M100 of 2004 & Anor v Minister for Immigration & Anor
[2007] FMCA 829
•1 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M100 OF 2004 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 829 |
| MIGRATION – Refugee Review Tribunal – whether evidence considered – illogicality – fact finding – whether gender and credibility guidelines are relevant considerations. |
| Migration Act 1958, ss.48B, 424A, 499 |
| Algama v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 253 Department of Immigration and Multicultural Affairs, Refugee and Humanitarian Visa Applicants – Guidelines on Gender Issues for Decision Makers |
| First Applicant: | M100 OF 2004 |
| Second Applicant: | MZXNH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG1475 of 2006 |
| Judgment of: | Riley FM |
| Hearing dates: | 8 & 9 May 2007 |
| Date of last submission: | 29 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 1 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | D S Mortimer & J McKenna |
| Solicitors for the Applicant: | Allens Arthur Robinson |
| Counsel for the First Respondent: | Chris Horan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application to amend the application by adding proposed ground 5 is refused.
The application filed on 21 November 2006 and amended on
28 February 2007 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1475 of 2006
| M100 OF 2004 |
First Applicant
| MZXNH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This proceeding is an application filed on 21 November 2006 and amended on 28 February 2007 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 13 October 2006 and delivered on 24 October 2006. That decision affirmed a decision of the first respondent’s delegate refusing to grant protection visas to the applicants.
The first applicant is a 34 year old female citizen of Sri Lanka. She arrived in Australia on 15 July 2000 and applied for a protection visa on 18 July 2000. That application was refused and the refusal was affirmed by the Tribunal on review. On 5 December 2005, the first applicant was permitted pursuant to s.48B of the Migration Act 1958 (“the Act”) to make a further protection visa application. On
19 December 2005, the first applicant lodged a further protection visa application in which her son, who was born in Australia in 2002, was included as the second applicant. The second applicant does not make any claims of his own and the first applicant is referred to below as the applicant. The applicant’s husband, who arrived in Australia in 1995, made a separate application for a protection visa. The husband’s application is not the subject of this proceeding.
On 12 April 2006, a delegate of the Minister refused the applicants’ further application for protection visas. On 24 April 2006, the applicant applied to the Tribunal for review of the decision of the delegate. On 24 October 2006, the Tribunal handed down its decision dated 13 October 2006 affirming the delegate’s decision.
On 21 November 2006, an application for judicial review of the Tribunal’s decision and a supporting affidavit was filed in this court. On 28 February 2007, the applicant filed an amended application and further affidavit. On 21 March 2007, the applicant filed contentions of fact and law and on 12 April 2007, the first respondent filed contentions of fact and law. The matter was heard in this court on
8 and 9 May 2007, at which time the applicant sought leave to file a further amended application, including a proposed ground 5. The question of whether such leave should be granted is dealt with below.
Initial claims
The applicant set out her claims in a statutory declaration attached to her protection visa application lodged on 19 December 2005. She said that she is a Tamil Muslim and that she experienced discrimination as a Tamil Muslim when she was growing up. She said that on 18 July 1995, she married her husband but that he “…fled to Australia two days later to avoid persecution because of his race and because the authorities thought [he] … was a supporter of the Liberation Tigers of Tamil Eelam (LTTE) because his boss was a member.”
The applicant said that in 1999, she commenced teaching at a Hindu Ladies College in Colombo. She lived with two other female teachers from the school who were both Tamils from Jaffna. The applicant claimed that one of them often printed Tamil news from the internet. The applicant said that she donated money to Tamil charities through her housemate.
The applicant said that on 26 August 1999, her house was searched by police. She said she was found reading Tamil news. She said the three women were taken to the Terrorist Prevention Camp in Colombo. The applicant claimed that she was detained at the camp for about 20 days, during which time she was accused of living with terrorists, being married to a man with terrorist links and giving money to the LTTE. She said that after 10 days, she began to be tortured and then she was raped. She said she was detained again in November 1999 when she was again sexually assaulted and detained again in January 2000.
The applicant said that after her arrival in Australia she was depressed and after the birth of her son in January 2002 she was very depressed. She was referred to a psychiatrist, Dr Schwartz, who has been treating her since March 2003.
Submissions made to the delegate
By letter dated 3 April 2006, the applicant’s legal adviser wrote to the delegate and submitted that the applicant had a well founded fear of persecution by reason of:
a)her actual political opinion, including her opposition to the Sri Lankan Government and Army and the LTTE;
b)her imputed political opinion as a perceived supporter of the LTTE;
c)her Tamil race or ethnicity; and
d)her membership of a particular social group comprised of young Tamil women vulnerable to sexual assault by the Sri Lankan Army.
Psychiatric assessments
The applicant submitted assessments by Dr Schwartz dated 3 April 2003 and 23 February 2005 to the then Ministers for Immigration and two others dated 3 April 2006 and 24 July 2006 to the department. In the assessment dated 23 February 2005, Dr Schwartz said of the applicant that “I have no doubt that she was the victim of sexual violence.”
Dr Schwartz also gave oral evidence at the Tribunal hearing, summarised in the Tribunal’s decision as follows:
The applicant’s psychiatrist Dr Schwartz said she had worked as a senior psychiatrist at the Women’s Hospital for over 20 years and had developed an interest in refugees because 40% of the patients there are from non-English speaking background. She was also a consulting psychologist at the Victorian Foundation for the Survivors of Torture (the Foundation). The applicant presented with all the recognised signs of having been in a situation of chronic terror. She was withdrawn, unable to think clearly, was suicidal, and had many physical complaints. She was not able to give a clear picture of her experiences at first and could not speak of the sexual assault. Her sheltered life had not prepared her at all for such an experience. Dr Schwartz had seen the applicant every two weeks and she had always been 100% consistent. Her normal response to trauma is to put things out of her mind.
The Tribunal said it took it that Dr Schwartz believed the applicant’s claims. Dr Schwartz said that the applicant was truthful and consistent but had problems with her memory. The Tribunal asked whether it was possible that the applicant’s symptoms had been caused in any other way than claimed. Dr Schwartz said she could not conceived (sic) of how this could happen. The applicant’s dissociative behaviour was not the usual manifestation of depression. Her sense of her self had been profoundly altered. This occurred in a situation of chronic abuse and having no power. She experienced a numbing and constricting of the mind and puts Sri Lanka out of her mind as much as possible. As far as Dr Schwartz knew these symptoms did not exist before the applicant’s claimed experiences.
The Tribunal’s reasons for decision
The Tribunal’s central conclusion was that:
The Tribunal does not accept that the applicant was detained by the Sri Lankan authorities on any occasion, and consequently does not accept that the applicant was mistreated by the authorities in any of the ways that she claimed.
The Tribunal gave a number of reasons for that conclusion, described by the applicant’s counsel as the where, when, why and what of the decision. The Tribunal said that:
[Where] First, there is the matter of where the applicant was detained. The Tribunal considers it implausible that a person could be detained and mistreated in the way that the applicant has, without any concrete evidence being able to be led about where these events occurred. This is the case, even taking into to (sic) account the resulting trauma, and the poor visibility because it was claimed to have been dark, and acknowledging that places of interrogation and torture are not usually advertised by the authorities. The “where” is not a mere detail in any true account of events; it is fundamental. Human nature indicates that if not the applicant herself, then at least one of her relatives would have at least asked themselves and either guessed or speculated, where the applicant is likely to have been held and mistreated as badly as she claimed, with the mental and physical damage it is claimed resulted. It was not sufficient for the applicant to say that she was taken to a Terrorist Prevention Camp, somewhere in the suburbs of Colombo. The applicant at one point said she was always taken to the same place, and elsewhere said it might have been a different place on one occasion. The ability to answer that question at all (was it the same place, or not), suggests a degree of knowledge about where she was taken to, that was not supported in the hearing of the present review.
[When] Then there is the issue of when the applicant was detained. In her initial written statement it is claimed with some precision that she was detained, interrogated and accused about a number of matters, and assaulted. She was later released. Later she claimed that she was detained and released on three separate occasions. The Tribunal did not find the applicant’s explanation for this contradiction persuasive. The statement is reasonably precise, and not on its face affected by forgetfulness or confusion. The applicant claims that she was mentally unwell at the point when it was written, however none of the evidence as to her mental state is contemporaneous with that time. (The issue of the applicant’s mental health is discussed further below.)
[This reason appears to refer back to the statement provided in support of the applicant’s first protection visa application in which she said she was detained on 26 August 1999 and released on 4 February, presumably, in 2000. The statement for the first protection visa application did not refer to any subsequent periods of detention, unlike the statement for the second protection visa application.]
[Why] If a person is detained by the authorities there is usually a reason why. Of course, someone may be detained opportunistically for the purpose of being abused. However, this is not what is claimed by the applicant. She claimed she was detained because she was house-sharing with two Tamil women associated with the LTTE. However, this claim is not supported by independent information about ethnicity in Sri Lanka or about the way counter-terrorism measures operate there.
It can be concluded, from the country information, that Muslims and Tamils are, and see themselves to be, and are seen by Sri Lankan society as, two distinct groups, notwithstanding they share the same language. Indeed, Muslims see Tamil separatism as against their interests (this is also the theme of the article referred by the applicant as CX43122). They have often been persecuted by the LTTE in the North and East. The article cited by the adviser, urging Muslims to unite with the LTTE, is nothing more than a threat. Examples of Muslims helping the LTTE appear to be very rare. Such few reports as there are of Muslims being caught up in counter-terrorism activity of the authorities involve instances of them being in the wrong place at a bad time (e.g. the village on the A-9 where a claymore exploded). Further, there is information over a long period of time about the sort of profile a person would have if they risked being arrested and mistreated during a cordon and search operation in Colombo. They would be Tamil (not Muslim), they would be from the North and the East, and they would not be able to explain their presence in Colombo. The applicant dresses as a Muslim and has a Muslim (not a Tamil) name. It is simply not plausible that the authorities would perceive the applicant to be an LTTE sympathiser.
[What] There is the issue of what occurred during the applicant’s detention. She claimed that the authorities learned of her connection to her husband, and this aggravated their interest in her. However, the applicant’s husband’s claims were not credible. He did not apply for a protection visa until he had been in Australia for more than two years, even though he claimed that he came under suspicion (of both the authorities and the Tigers) in connection with his boss’s terrorist activities a few months after his arrival. Also, because he was a Muslim, his claim to have been implicated in activities of the LTTE (through employment), and to have been suspected by the authorities, suffered from the same deficiency as the applicant’s. Such evidence as he provided was not sufficient to overcome these credibility concerns. Furthermore, the applicant was unable to credibly explain why, if the authorities had an adverse interest in her in connection with her husband, it did not become apparent, even though she was her husband’s registered wife, until 1999. Finally, the applicant had a lack of interest in the details of her husband’s claims or the reasons why his application had failed, that sat very uneasily with her claim to have been tortured partly due to her connection with him. When she was still in Sri Lanka she seemed to have little interest in what enquiries the authorities were making about her husband or what charges might be laid, and how his family were handling this.
In relation to the psychological and psychiatric evidence, the Tribunal said:
In support of the applicant’s claims, evidence was submitted in the form of psychological and psychiatric assessments by professionals who worked with the applicant in recent years. In summary, their conclusion was that the applicant had suffered a trauma, that this was of a sexual nature, that it occurred before the applicant came to Australia, and that she was telling the truth. The Tribunal has given very careful consideration to these assessments. However, they are outweighed, in the Tribunal’s view, by the critical flaws in the applicant’s account as discussed above.
Given the problems in the credibility of the account of the events prior to the applicant leaving Sri Lanka, and the state of the evidence overall, the Tribunal does not accept that her two housemates were arrested, or that the police ever came to her house.
Furthermore, the Tribunal did not accept that the applicant is a “Tamil”, saying that:
As for the reasonably foreseeable future, since the applicant is not “Tamil” the Tribunal does not accept that she faces any kind of persecution as a “Tamil” or any variation on that group. She is a Muslim.
The country information cited above indicates that ethnically-motivated violence against Muslims in areas away from Tiger territory does happen, but rarely. All the human rights commentary concerning Muslims is about their treatment by the LTTE in areas of conflict. Such other inter-ethnic hostility or discrimination as exists, clearly does not generally manifest itself in harm serious enough to amount to persecution. The applicant herself did not indicate that she had ever, apart from the claims rejected above, been harmed on the basis of being Muslim. The applicant does not face a real chance of persecution (either by Tamils or Sinhala) due to her ethnicity or religion. The Tribunal also is not satisfied that as a “young Muslim woman” she faces persecution, no matter how that claim is formulated in terms of a Convention ground. There is no evidence before the Tribunal that Muslim women, young or not, are persecuted in Sri Lanka.
Ground 1: failure to consider the evidence of Dr Schwartz
Ground 1 in the amended application filed with the court on
28 February 2007 is as follows:
The Tribunal acted without or in excess of jurisdiction, by failing to take into account relevant material.
Particulars
i)The Tribunal had before it reports from the First Applicant’s treating psychiatrist, Dr Schwartz dated 3 April 2003,
23 February 2005, 3 April 2006.
ii)The Tribunal heard oral evidence from Dr Schwartz.
iii)In the circumstances where neither Dr Schwartz’s expertise nor her credibility were questioned by the Tribunal, the Tribunal failed to take her opinions and evidence about the First Applicant’s psychiatric condition into account in assessing the credibility of the applicant’s evidence.
iv)In circumstances where neither Dr Schwartz’s expertise nor her credibility were questioned by the Tribunal, there was no rational basis for the Tribunal’s refusal to accept Dr Schwartz’s opinions and about the reason for the First Applicant’s present and immediately past psychiatric conditions being her suffering rape and sexual assault in Sri Lanka.
The applicant’s written submissions on this ground were as follows:
[34] Whilst the Tribunal did note some of the evidence of Dr Schwarz (CB 101, 105) the only finding made by the Tribunal was (CB 116):
In support of the applicant’s claims, evidence was submitted in the form of psychological and psychiatric assessments by professionals who worked with the applicant in recent years. In summary, their conclusions was that the applicant had suffered a trauma, that this was of a sexual nature, that it occurred before the applicant came to Australia, and that she was telling the truth. The Tribunal has given very careful consideration to these assessments. However, they are outweighed, in the Tribunal’s view, by the critical flaws in the applicant’s account discussed above.
[35] Dr Schwarz’s evidence, and that of the other medical, psychological practitioners, was critical to the applicant’s claim in that it provided the Tribunal with independent, direct evidence about how the applicant presented and behaved over a period of more than 5 years. That evidence provided only one explanation for the applicant’s behaviour: that she had been subjected to rape and severe sexual assault. In circumstances where neither the expertise, nor the credibility of these witnesses were questioned by the Tribunal (especially Dr Schwarz, who gave evidence to the Tribunal), the Tribunal’s reasons disclose a complete failure to take that evidence into account.
[36] The failure is not avoided by a covering statement such as “The Tribunal has given very careful consideration to these assessments” when the remainder of the reasons disclose no such consideration at all. The reasons disclose no competing hypothesis or explanation which might explain how the Tribunal took this material into account and elected to reject it all.
The first respondent’s written submissions on this ground were as follows:
Ground 1 (failure to take into account evidence of Dr Schwarz) and Ground 1A (irrationality and illogicality)
Previous authority
[9] Similar arguments to those raised by the applicant in the present case have been considered and rejected in previous cases.
[10] In Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476, the Tribunal had rejected the applicants’ claims, including claims made by the applicant wife that she had been raped by police while in detention, notwithstanding evidence from a psychologist that the applicant was suffering from post-traumatic stress disorder (PTSD) and other psychological difficulties. In her report, the psychologist went so far as to state that she had “absolutely no doubt” that the applicant’s case was genuine (at [124]).
[10.1] However, North J dismissed arguments that the Tribunal had failed to give reasons for rejecting the psychologist’s opinion “in support of the credibility of the applicant’s claim”, and that there was no evidence or other material to support a finding by the Tribunal that there were a range of other matters which cause such psychological conditions.
[10.2] North J held that the Tribunal had given reasons for rejecting the psychologist’s opinion, even though his Honour described that rejection as “bold, and perhaps even startling in light of the symptoms observed by the psychologist” (at [127]). Further, even if the Tribunal had failed to give reasons, “[t]he psychologist’s opinion as to the existence of the background facts was simply material inconsistent with the view which the Tribunal formed that the applicants had not suffered persecution” and the Tribunal was not required to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine its findings (at [130]). North J continued (at [132]):
[i]n any event, it was not necessary for the Tribunal’s reasoning to establish a specific cause for the PTSD. It was sufficient for the Tribunal to be satisfied that the applicants suffered PTSD and the alleged conduct had not occurred but that some other cause, even if unidentified, may have been responsible for the disorders. This final step in the reasoning is no more than the logical consequence of the taking of the first two steps, namely, that the applicants did suffer PTSD, but they did not experience the particular events which they claimed.
[10.3] North J also rejected an argument that the Tribunal did not adequately address the issues raised in the psychologist’s report (at [140]).
[11] Similar issues were considered by the Full Court of the Federal Court in Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 225 (Drummond, Cooper and Finkelstein JJ). [Footnote: See also, at first instance Subramaniam v Minister for Immigration and Multicultural Affairs [2001] FCA 891, where Ryan J concluded at [37] that “it cannot be said that the Tribunal ignored, as distinct from discounted, the psychological evidence” as bearing on the question of whether the applicant had been subjected to persecution.] In that case, the appellant argued that the Tribunal had failed to treat psychological and medical evidence as probative of the appellant’s claims that he had suffered ill-treatment amounting to persecution.
[11.1] Drummond J noted that it was apparent that the Tribunal had not placed any weight on the opinions expressed by the psychologists as to the appellant’s truthfulness in relation to what he told them he had experienced (at [28]). He noted that, according to the rules of evidence, such opinions were not properly the subject of expert opinion (and were therefore not admissible). Although the Tribunal was not bound by the rules of evidence, and could therefore choose to give weight to the psychologist’s assessments of the appellant’s truthfulness, no complaint could be made that it had chosen not to place any weight on those opinions.
[11.2] Although he held that the Tribunal had not ignored the psychologists’ reports, Drummond J accepted an argument by the appellant that the Tribunal had failed to appreciate that the psychologists’ diagnosis was consistent with, and corroborative of, the applicant’s claims (at [33]-[34]). However, he held that this amounted to “nothing more than a non-reviewable error by the Tribunal in finding the facts” (at [35]). [Footnote: Drummond J had earlier observed (at [12]) that, where the Tribunal had correctly understood the applicable legal principles, a failure by the Tribunal to appreciate that certain evidence was probative of an applicant’s claims (for example, “a piece of information in the nature of circumstantial evidence that tends to make the person’s account of having suffered persecution more believable”) would only constitute a non-reviewable error of fact.) Drummond J said:
The opinion evidence here in issue, if accepted, was incapable, by itself, of proving that the appellant had suffered Convention related persecution. It was but one piece of circumstantial evidence that supported his claim that he had been so persecuted. That it ignored this evidence provides no ground for inferring that the Tribunal must have misunderstood one or other of the legal principles that govern the establishment of refugee status.
[11.3] Cooper and Finkelstein JJ concluded that the Tribunal had regard to the psychological and medical reports. However, “the implicit opinions of the experts that the symptoms were also consistent with the additional claims to persecution, which we think the tribunal took into account, did not persuade the RRT of the truthfulness of the claimed assertions, because the tribunal was of the view that the evidence was not credible (at [47]).
[12] The Full Court reached the same conclusion in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 (Drummond, Cooper and Finkelstein JJ).
[12.1] It may be noted in passing that the appellant in Thirukkumar had made claims that she had been raped in detention, and that the Tribunal relied (among other things) on inconsistencies in the applicant’s evidence about the periods of the claimed detention, including the timing of her arrest and release (at [8], [27]).
[12.2] Drummond J held that, even assuming that the Tribunal had failed to take into account the expert opinion as to the consistency of the appellant’s symptoms with her claims, this did not disclose any reviewable error (at [6]-[13]).
[12.3] Cooper and Finkelstein JJ noted that the appellant’s real complaint was “that the tribunal failed to take into account, or failed to give sufficient weight to the practitioners’ assessment of the truthfulness of the appellant’s account of her prior history” (at [32]). Their Honours discussed the limits on the admissibility of expert testimony in relation to the credibility of a witness (at [33]-[36]). In exceptional cases, it may be permissible for a medical practitioner, psychiatrist or psychologist to give opinion evidence to the effect that a patient’s condition is consistent with the patient’s asserted facts about the past events which give rise to the condition, provided that the basis for that opinion is fully revealed and explained. On the other hand, indications of a psychologist’s own view of a patient’s credibility must be excluded. Their Honours concluded that the psychologist’s opinion in that case was “borderline” admissible in relation to consistency, but noted (at [37]):
[h]ow much weight the trier of fact would attribute to this opinion is, of course, another matter. The trier of fact must ensure that the case does not become a ‘trial by psychiatrists’: R v B (an accused) [[1987] 1 NZLR 362] at 368.
[12.4] Cooper and Finkelstein JJ acknowledged that the Tribunal was not bound by the rules of evidence, but nevertheless considered that it was unlikely that the tribunal would be much assisted by the psychologist’s conclusions about the appellant’s truthfulness (at [38]). Their Honours continued:
More importantly, if the evidence is ignored, or given insignificant weight, the tribunal will not fall into error. It is not for a court to dictate to the tribunal how much weight it must give to a particular piece of evidence.
[12.5] Finally, Cooper and Finkelstein JJ did not accept the premise upon which the appellant’s argument is founded, namely that the tribunal had failed to consider the psychologists’ opinions for the purpose of assessing the appellant’s claim that she had been raped while in detention (at [39]).
[13] Again, in VMAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 21 (Wilcox, French and Finkelstein JJ), the Full Court rejected an argument that the Tribunal had failed to consider and deal with a psychologist’s report when making findings about the applicant’s claims. [Footnote: It may be noted that the opinion of the psychologist in VMAJ was more conservatively expressed than that of Dr Schwarz in the present case, in that the psychologist acknowledged that the appellant’s symptoms (consisting of depression and anxiety symptoms associated with a post-traumatic condition) could emerge for a variety of reasons, but that “the events that [the appellant] describes, if true, would explain the presence of these symptoms”: [2005] FCAFC 21 at [10].] The Court stated (at [28]-[30]):
The argument advanced on behalf of the appellant involved a suggestion that the Tribunal should, in the conclusionary part of its reasons, have expressly referred to and dealt with the psychologist’s observations about the appellant’s manifestation of ‘fearfulness that bordered on terror’ in giving her account of having been detained and tortured. No doubt related to that is the psychologist’s proposition that if the events that she described were true that would explain the presence of her symptoms.
While it may have been desirable, in the interests of fully exposing the reasoning process, for the Tribunal to have made express reference to that aspect of the evidence in making its findings about detention and torture, its failure to do so does not amount to jurisdictional error vitiating the decision which it made. It is at worst an omission to deal with an aspect of the evidence before it which could logically have had a bearing on the question whether the appellant had been detained and tortured. The tribunal had sufficient basis in the evidence to support its conclusions about the unlikelihood of that occurrence. The psychologist’s observations were based upon the appellant’s demeanour at the time of her interviews with him. While they may have been informed by professional expertise, it is to be remembered that the Tribunal also had the opportunity of observing the appellant when she was speaking of these matters.
In order to succeed the appellant must show that there was a jurisdictional error on the part of the Tribunal. The appellant’s case of jurisdictional error relies solely upon the Tribunal’s omission to refer to the psychologist’s evidence in the conclusionary section of its reasons, this being characterised as a failure to take into account a mandatory relevant consideration. However, it is clear from the Tribunal’s reasons that it was very conscious of the terms of this evidence. Omission to discuss one aspect of it in making conclusions of fact is not enough.
While it may be that on an appeal de novo, against the Tribunal’s findings of fact, the omission of the Tribunal to make reference to the psychological evidence might constitute appealable error, it does not rise to the level of jurisdictional error for the purposes of the judicial review that is now available in relation to decisions taken under the MigrationAct.
[14] In VGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1607 (Gray J), the appellants contended that the Tribunal had failed to deal adequately with psychological evidence that the appellant husband was suffering from a major depressive disorder resulting from his experience of torture. The Tribunal made adverse credibility findings, rejecting the claims of mistreatment because of inconsistencies in the evidence. At first instance (VGAP v Minister for Immigration [2003] FMCA 327), Barnes FM noted that the tribunal held that the psychologist’s opinion went beyond “being simply an opinion that the applicant was suffering from certain disorders and that those disorders were consistent with the history he gave and the symptoms he described” (at [29]) [footnote: see also Gray J on appeal at [31]], but held that the Tribunal had not ignored or failed to have regard to the report (at [30]-[43]). On appeal, the appellants argued that the Tribunal had failed to treat the psychologist’s report as the independent expression of an expert opinion that the first appellant had experienced torture on many occasions, and had erred by not finding that the report was probative of the existence of a well-founded fear of persecution (at [29]). These arguments were rejected by Gray J, who affirmed the finding that the Tribunal had not ignored or failed to have regard to the psychologist’s report, which had been referred to by the Tribunal several times in its reasons for decision (at [33]-[34]). Further, Gray J agreed that, even if the Tribunal had failed to take account of the expert’s opinion, this would not have amounted to jurisdictional error (at [34]).
The Tribunal did not fail to take into account the opinion of Dr Schwarz
[15] It follows from the decisions set out above that the Tribunal did not fail to take into account the evidence of the opinion of Dr Schwarz (or the other practitioners).
[16] The Tribunal expressly referred to and summarised the evidence in its reasons for decision [CB96, 101, 105, 108], and expressly addressed that evidence in its ‘Findings and Reasons” [CB116.3].
[17] To the extent that Dr Schwarz or the other practitioners purported to express an opinion as to the truthfulness of the applicant or the genuineness of her claims, that evidence was not based on specialised knowledge, and usurped the function of the Tribunal as the trier of fact. [Footnote: See, for example, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85], [87], [89] (Heydon JA); see also at [59] (referring to Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, 42), [70] (referring to R v Fowler (1985) 39 SASR 440 at 442-443), [77] (referring to Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 350-351). See also ASIC v Vines [2003] NSWSC 1095 at [30] (Austin J); ASIC v Rich [2005] NSWSC 149 at [280], [287]-[291] (Austin J).] It was not the role of the expert witnesses to assess the applicant’s credibility, or to make findings of fact in relation to the claims recounted by the applicant. As Branson J noted in NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 at [36]:
The individuals who expressed the expert opinions relied upon had no special expertise in determining the truth or otherwise of the history recounted to them by the applicant. Nor would any other medically qualified expert who might have examined the applicant have had such expertise.
[Footnote: Branson J later observed at [48] that “... it is the Tribunal ... that the legislature intends should ordinarily make final decisions as to the veracity of an applicant’s claim to be entitled to a protection visa”.]
[18] The Tribunal was not required to accept the opinion of Dr Schwarz or the other practitioners, and was not obliged to refer to or rely on any expert evidence to the contrary. [Footnote: see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [87]; ASIC v Rich [2005] NSWSC 149 at [288]; compare Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014 at [35]-[36].]
[19] The opinions of Dr Schwarz and the other practitioners were not direct evidence of the occurrence of the past experiences claimed by the applicant. Those opinions were at best corroborative evidence which potentially supported the applicant’s claims. However, the expert opinions did not preclude the Tribunal from making adverse credibility findings against the applicant, nor from rejecting the applicant’s claims about her past experiences. In particular, any such rejection of the applicant’s claims did not necessarily involve the rejection of either the credibility or the expertise of Dr Schwarz or the other practitioners. [Footnote: In other words, it may be accepted that the (sic) each of the practitioners held the opinion stated, but nevertheless the Tribunal was not satisfied that the events took place as claimed by the applicant.]
[20] It may be doubted whether the evidence of Dr Schwarz and the other practitioners can be regarded as a relevant consideration or “relevant material” which the Tribunal was bound by law to take into account. [Footnote: See Abebe v The Commonwealth (1999) 197 CLR 510 at 579 (Gummow and Hayne JJ): Li Shi Ping v Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 (per Carr J, with whom Sheppard and Gummow JJ agreed); MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [14] (Middleton J).] In any event, the Tribunal’s reasons clearly demonstrate that it had regard to that evidence. Jurisdictional error is not established “merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed”. [Footnote: Rezaei v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1294 at [57] per Allsop J: see also Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255 at [12] (Drummond J) and the cases set out in paragraphs 10 to 14 above.]
In oral submissions, the applicant apparently accepted that the Tribunal was entitled to reject the opinion evidence of an expert witness. However, the applicant argued that, in addition to opinion evidence, Dr Schwartz also gave direct evidence about the applicant. In the applicant’s submission, that direct evidence came from a qualified psychiatrist the Tribunal did not seek to impugn and did not disbelieve. Rather, in the applicant's submission, the Tribunal ignored the direct evidence given by Dr Schwartz.
The direct evidence identified by the applicant's counsel included the following statements made by Dr Schwartz:
a)in the report dated 3 April 2003:
i)"it was very difficult to her to talk about this period. She began to cry and distractedly remove her head scarf. She would go silent and look as if she was not able to respond and would then say "what did I say, what did I say, I can't remember";
ii)“She became terrified as she discussed this prospect”, that is, returning to Sri Lanka; and
iii)the applicant "is a traumatised young woman who exhibits the signs and symptoms of Post Traumatic Stress Disorder with profound depression and anxiety which includes panic attacks and dissociation. Her condition has recently deteriorated to the point where there are concerns that she is not able to look after herself properly nor to look after her son. It should be noted that the level of her social withdrawal is such that her son has presented to the Children's Hospital with Rickets. This is an illness which causes bony deformities and results from insufficient vitamin D. This is usually unknown in Australian children and in this case is caused by lack of exposure to the sunlight. This indicates the degree of [the applicant's] fearfulness and social withdrawal. In her fearfulness her infant son has been insufficiently exposed to sunlight to allow sufficient synthesis of vitamin D. He therefore does not absorb calcium well."
b)in the report dated 23 February 2005:
i)“She had difficulty concentrating or thinking clearly. She was unable to make eye contact and grimaced frequently throughout our initial interview. She lost track of the conversation and engaged in repetitive stereotypic movements.”
ii)"However, when I asked her to think about what advise (sic) she would give to a young Sri Lankan woman who was in a similar situation and came to her for help, she simply looked perplexed. After some time reflecting she replied to me “that would never happen. You don't understand. That would never happen. No one would ever tell." Immediately following this very significant session, [the applicant] again deteriorated and had numerous physical complaints.”
iii)"the frightened, withdrawn, confused young woman I first met.”
iv)"Any episode ... which causes her to remember or think of sexual humiliation, causes a deterioration in her mental state."
c)in oral evidence:
i)at page 15 of the transcript, "when I first saw her … she grimaced, went into trance states when she couldn't think clearly and would do repetitive movements, and that's what we would call in psychiatry she had a dissociative state, and that isn’t a usual part of depression."
ii)at page 21 of the transcript, when the applicant is asked to think about what would happen if she returned to Sri Lanka, "she becomes distressed with physical symptoms and disassociates in front of my eyes."
The applicant sought to distinguish the cases relied upon by the first respondent by saying that those cases only dealt with the opinion of an expert but in the present case what was relied upon was the direct observations of the applicant made by a psychiatrist. The applicant argued that the Tribunal shut its eyes to the direct evidence before it, even though it had no evidence on the other side of the equation and, accordingly, failed to consider the direct evidence.
The first respondent submitted in oral argument that the authorities were of one voice in endorsing the approach of the Tribunal in this case to the psychiatric and psychological evidence. The first respondent referred to the decision of North J in Algama v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 253 and emphasised that there was no need for the Tribunal to identify an alternative cause of the applicant’s psychological state. The Tribunal, in the first respondent's submission, only needed reasons for the principal issue. That is, the first respondent argued, the Tribunal only needed to determine whether it accepted the applicant's account. The first respondent submitted that it was for the Tribunal to make that determination based upon the applicant's evidence, any independent evidence, and any psychiatric reports.
The first respondent submitted that the experts were able to express an opinion as to whether the applicant's physical symptoms and presentation were consistent with her recounted history but were unable to give an opinion about whether she was telling the truth. That was a matter for the Tribunal. In the first respondent's submission, it was not a part of the function of a psychiatrist to assess the truth of the statements made by a patient, except perhaps where he or she is perceived to be delusional.
The first respondent submitted that it is for the Tribunal to determine the weight to be given to psychological or psychiatric evidence. In so far as the psychiatrist provided direct evidence of the applicant's symptoms and an opinion that those symptoms were consistent with the applicant's account, the first respondent argued that it was open to the Tribunal to reject the psychiatrist’s corroborative evidence. The first respondent said that the Tribunal gave reasons for rejecting the applicant's primary account and did not need to provide additional reasons for rejecting a particular item of evidence, namely, the psychiatrist's evidence. The first respondent submitted that the Tribunal had clearly taken into account the psychiatric evidence but did not consider that it outweighed the flaws in the applicant’s own account.
Consideration of ground 1
In my view, it is clear that the Tribunal took into account the evidence of Dr Schwarz. The Tribunal summarised a good deal of Dr Schwarz’s evidence in its account of the evidence. Then, in its findings and reasons, the Tribunal expressly stated that it had "given very careful consideration to [the psychological and psychiatric] assessments.” The Tribunal went on to say that the psychological and psychiatric assessments were "outweighed ... by the critical flaws in the applicant's account."
In these circumstances, it cannot be said that the Tribunal did not take into account the evidence of Dr Schwarz. The Tribunal, of course, is empowered to reject a body of evidence entirely or to give it insignificant weight. As Cooper and Finkelstein JJ noted in the Full Federal Court decision in Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 268 at [38],
[i]f the evidence is ignored, or given insignificant weight, the tribunal will not fall into error. It is not for a court to dictate to the tribunal how much weight it must give to a particular piece of evidence.
The evidence of Dr Schwarz was simply evidence rather than the type of relevant consideration referred to in Minister for Aboriginal Affairs & Anor v Peko-Wallsend (1986) 162 CLR 24. Dr Schwarz's evidence was circumstantial and tended to support the account that the applicant had given. However, those facts do not make Dr Schwarz's evidence a relevant consideration in the Peko-Wallsend sense. Dr Schwarz's evidence in the present case does not come close to the line that is sometimes difficult to draw between evidence and an integer of the claim. The evidence given by Dr Schwarz did not consist of new or additional claims but merely tended to substantiate the claims already made by the applicant.
In any event, the evidence of Dr Schwarz was not ignored. It was considered and rejected. As such, this case is comparable to Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 2005, where Ryan J concluded at [37] at first instance that "it cannot be said that the Tribunal ignored, as distinct from discounted, the psychological evidence".
Contrary to the applicant's submission, there is no obligation on the Tribunal to identify and find evidence in support of an alternative explanation for the applicant's symptoms: Algama at [132] per North J. Nor is the Tribunal obliged to provide elaborate reasons for rejecting expert evidence. In the present case, the Tribunal's reasons for rejecting Dr Schwarz's evidence are clear. Those reasons were the where, what, why and when of the decision which are set out above. The Tribunal considered that those reasons outweighed the evidence of Dr Schwarz. The Tribunal was entitled, as the trier of fact, to form that view. This ground is not made out.
Ground 1A: illogicality
Ground 1A in the amended application filed with the court on
28 February 2007 is as follows:
The Tribunal acted without or in excess of jurisdiction by making a decision that was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
Particulars
i)A central finding by the Tribunal was that the First Applicant had not been detained by the Sri Lankan authorities on any occasion and that the First Applicant had not been mistreated by the authorities in the ways she claimed.
ii)The only basis expressed by the Tribunal for that finding was that the Tribunal found several “flaws” in the evidence of the First Applicant, each so called “flaw” relating to something in the First Applicant’s evidence which the Tribunal found inconsistent or implausible.
iii)The evidence of the First Applicant’s treating psychiatrist, Dr Schwartz, was that the Applicant suffered chronic, long term, intense terror and fear and that such symptoms could only result from being exposed to prolonged trauma of the type described by the Applicant.
iv)Dr Schwartz’s evidence was not contradicted, her credibility and expertise were not questioned and the basis for the observations of the First Applicant she described and opinions she gave, was not challenged.
v)There was no evidence or other material before the Tribunal capable of supporting a different or alternative explanation for the behaviours of the First Applicant to that given by Dr Schwartz.
vi)The Tribunal made no findings of a different or alternative explanation.
vii)In the circumstances, the Tribunal’s finding referred to in sub-paragraph (i) above, and the Tribunal’s expressed basis for that finding, was irrational and illogical.
The applicant’s written submissions on this ground were as follows:
[37] The relevant factual matter for the Tribunal to determine was whether the applicant was detained and mistreated by the Sri Lankan authorities in the way she claimed, because she was a Tamil, perceived to be supporting the LTTE. These facts were central to the determination by the Tribunal of whether it was satisfied that the Applicant had a well founded fear of persecution for a Convention reason.
[38] The psychiatric evidence of Dr Schwarz referred to above was consistent with the applicant’s claim to have been detained and mistreated by the Sri Lankan authorities. So was the evidence from the other persons who have treated the Applicant, or dealt with the applicant, since she arrived in Australia. When asked whether the symptoms she had observed could be caused in a completely different way, Dr. Schwarz told the Tribunal (Tribunal Hearing transcript p 15):
I can’t conceive of another way. I mean they’re completely consistent with the history that I have obtained. And they’re recognised as being the result of prolonged trauma, text book description.
[39] The Tribunal did not put to the applicant, or to Dr Schwarz, that it did not believe that Dr Schwarz had actually observed the symptoms upon which Dr Schwarz’s opinion was based. The Tribunal did not put to the applicant that she had fabricated the symptoms observed by Dr Schwarz. Nor did it put any alternative explanation for the symptoms to the applicant. It raised one possibility of an alternative explanation with Dr Schwarz [footnote: transcript of hearing at p.15], which Dr Schwarz completely rejected. The Tribunal did not suggest that all the treating health professionals (and those treating her son) were fabricating what they had observed in her, or that she had been fabricating her symptoms to them.
[40] However, the Tribunal said in its reasons that the psychological and psychiatric assessments (including that of Dr Schwarz) were ‘outweighed’ by perceived flaws in the applicant’s account if her detention, torture and rape by Sri Lankan security forces. In the absence of any evidence, or challenges, to the veracity of Dr Schwarz’s evidence or to her expertise, there was no “weighing” exercise to be undertaken because the two categories of evidence were quite different and the unchallenged category (from Dr Schwarz) supported rather than contradicted the applicant’s evidence.
[41] Dr Schwarz’s evidence was not simply corroborative evidence which the Tribunal was entitled to reject if it rejected the applicant’s evidence: cf Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (“Applicant S20”) at [12] per Gleeson CJ.
[42] It is irrational and illogical to discount and set at naught a large amount of evidence, expert and non-expert, including uncontroverted evidence about how the applicant physically presented, in circumstances where there is no alternative explanation proffered or even allowed as a possibility, and instead concentrate on alleged “flaws” in the applicant’s account which, when examined, are not flaws or inconsistencies at all, but rather explicable gaps in her evidence. Accepting that the threshold for irrationality and illogicality is set high (see Applicant S20 per McHugh and Gummow J at [29] for example), this Tribunal decision exceeds it.
The first respondent's written submissions on this ground were as follows:
The Tribunal’s decision was not irrational or illogical
[21] On current authority, it is clearly established that illogicality is not of itself sufficient to constitute an error of law or jurisdictional error. [Footnote: SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [14]; NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29]-[30]; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35]; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [25]; NBKG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 238 at [9].] In Bakhtyar v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 947, French J observed (at [38], [41]):
“The general requirement of basic or minimum rationality which informs the traditional grounds of judicial review and those which are permitted under Part 8 of the Migration Act does not provide any warrant for interfering with findings of fact made by the decision-maker where such findings are open on the evidence, even if it can be said that they have been arrived at illogically. They lie within the envelope of rationality. ...
There is a wider concept of illogicality which extends beyond the scope of the minimum rationality requirement. It is important to keep in mind that it also extends beyond the limits of permitted judicial intervention whether under the Act or under the traditional grounds of judicial review.”
[Footnote: affirmed Bakhtyar v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 49.]
[22] In particular, there is no want of logic in the non-acceptance of corroborative evidence in the light of the rejection of the applicant’s claims. [Footnote: Compare Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [11]-[14] (Gleeson CJ), [49] (McHugh and Guummow JJ). In para 41 of the applicant’s contentions, it is asserted that Dr Schwarz’s evidence was “not simply corroborative evidence”, but no explanation or justification of this bare assertion is given.] As discussed above, in this context, the expert opinions should be treated as no more than corroborative evidence in so far as they were directed to the truth of the applicant’s claims.
[23] The applicant’s contentions are based on a flawed premise that, in the absence of any “challenge” to the opinion evidence relied on by the applicant, the Tribunal was required to accept that the applicant was truthful and to find that the applicant had been detained and sexually assaulted as claimed. However, for the reasons set out above, this would be to usurp the fact-finding functions of the Tribunal. It was open to the Tribunal to reject the applicant’s claims, notwithstanding the evidence of the opinions of Dr Schwarz and the other practitioners. It was not necessary for the Tribunal to identify any “competing hypothesis or explanation” for the applicant’s symptoms. [Footnote: Cf. para 36 of the applicant’s contentions.] Even accepting that the applicant’s symptoms as observed by Dr Schwarz could be regarded as consistent with the history recounted by the applicant, this did not mean that there was “only one explanation” for the applicant’s behaviour. [Footnote: Cf. paras 35 and 38 of the applicant’s contentions. It may be noted that, although Dr Schwarz initially asserted in her oral evidence that she could not conceive of a different way in which the symptoms could be caused, she went on to concede that the symptoms could arise in other contexts including situations of chronic abuse, but dismissed those solely on the basis that as far as she was aware there was no evidence that the symptoms existed prior to the applicants (claimed) incarceration: see transcript, p.15.]
[24] On a fair reading of the Tribunal’s reasons [CB116.3] [footnote: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291], the Tribunal had regard to the psychological and psychiatric evidence in support of the applicant’s claims, but concluded that such evidence did not overcome the deficiencies and credibility concerns arising from the applicant’s evidence. In this sense, it was proper for the Tribunal to “weigh” the assessment of Dr Schwarz and the other practitioners against its assessment of all of the other evidence (including the flaws in that other evidence). [Footnote: Cf. para 40 of the applicant’s contentions.] The Tribunal did not accept that the applicant had been detained, and therefore did not accept that she had been mistreated in detention. [Footnote: Compare Abebe v The Commonwealth (1999) 197 CLR 510 at 544-545 (Gleeson CJ and McHugh J), 608 (Callinan J).] The applicant’s contentions amount to no more than an attempt to revisit the Tribunal’s fact-finding process on the merits. [Footnote: See for example para 42 of the applicant’s contentions, where it is sought to characterise the flaws and inconsistencies in the applicant’s evidence as merely “explicable gaps”.]
The applicant submitted in oral submissions that the Tribunal had made a completely irrational finding in that it had rejected the psychiatrist’s evidence that the cause of the applicant's psychiatric condition was her detention and mistreatment when no other cause of that psychiatric condition was identified. The applicant argued that there was no probative evidence on which the Tribunal rejected the psychiatrist's evidence. The applicant argued that the Tribunal was unable to make a negative finding without there being some probative evidence in support of an alternative proposition. The applicant argued that the Tribunal had said that certain matters outweigh the psychiatric evidence but there was no weighing process at all because there was nothing on the other side of the balance.
The first respondent submitted that the Tribunal made an entirely orthodox finding of fact in concluding that the applicant's account was not true and in rejecting the potentially corroborative evidence given by the psychiatrist. The first respondent noted that the Tribunal said that it had:
“given very careful consideration to [the psychiatric] assessments. However, they are outweighed, in the Tribunal's view, by the critical flaws in the applicant's account as discussed above.”
In the first respondent's submission, there was nothing irrational about the finding made by the Tribunal in relation to the psychiatric evidence.
Consideration of ground 1A
It is well established that irrationality or illogicality is not in itself a jurisdictional error provided that there is some probative basis for the decision. In the present case, there is, in my view, a probative basis for the decision consisting of the where, when, why and what reasons given by the Tribunal. The probative basis for the decision does not need to be one that the court finds particularly compelling. It simply needs to be a probative basis that was open on the evidence before the Tribunal.
In the present case, the Tribunal was clearly unable to accept, based on country information, that the applicant, as a woman who dressed as a Muslim and who had a Muslim name, as opposed to a Tamil name, would be suspected of supporting the LTTE. The Tribunal also identified certain inconsistencies and implausibilities in the applicant's account which led the Tribunal to disbelieve her claims. It was open to the Tribunal to form these views. In the circumstances, it cannot be said that there was no probative basis for the decision.
In any event, in my view, the Tribunal's decision cannot properly be described as irrational or illogical. The Tribunal clearly placed a great deal of weight on what it considered to be flaws in the applicant's account and relatively little weight on the psychiatric evidence. There was no error of logic in doing so. The weight to be attributed to evidence is a matter for the Tribunal. It is not open to an applicant to seek to undermine the Tribunal's power to attribute weight to particular items of evidence by alleging that the attribution of weight was illogical or irrational. Any other conclusion would lead to merits review.
The Tribunal, like a court, has the power to reject the evidence of an expert without being in possession of contradictory evidence: Makita(Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [87]. The Tribunal has the power to reject the causation put forward by an applicant for his or her physical or mental symptoms without having evidence in support of an alternative causation: Algama at [132]. Conclusions of fact drawn by the Tribunal within these powers cannot be transformed into jurisdictional error by alleging illogicality, provided always that there is some probative basis for the decision. As discussed above, there was a probative basis for the decision in this case.
In relation to the applicant's argument that the Tribunal mistakenly said that the psychological and psychiatric assessments were "outweighed" by the critical flaws in the applicant's account, it appears that the applicant is giving the Tribunal's choice of word an unduly narrow interpretation. The applicant argued that there was no weighing of the evidence on two sides of a scale because all the evidence was on one side. That is, all of the evidence was given by or on behalf of the applicant and it all supported her claims. However, the Tribunal's point was that there were flaws in the applicant's account which led it to disbelieve her, notwithstanding the psychological and psychiatric assessments. In these circumstances, the Tribunal's use of the word "outweighed" is not indicative of jurisdictional error. This ground is not made out.
Ground 2: wrong fact finding
This ground was not pressed and I take it no further.
Ground 3: wrong finding that the applicant was not a Tamil
Ground 3 in the amended application filed with the court on
28 February 2007 is as follows:
The Tribunal acted without or in excess of jurisdiction, by making a critical finding of fact which was wrong, and thereby misunderstanding the nature of the First Applicant’s claim.
Particulars
i)The First Applicant’s claim involved a claim of past persecution in that she had been arrested, detained and raped and assaulted because she was a Tamil, and she was perceived as sympathizing with the LTTE.
ii)The Tribunal found the First Applicant is not a Tamil.
iii)There was no evidence or other material on which the Tribunal could base that finding and it was plainly wrong.
iv)This wrong finding of fact caused the Tribunal to misunderstand the First Applicant’s claim, and to dismiss and fail to consider whether her Tamil race might give rise to a real chance of persecution.
The applicant's written submissions on this ground were as follows:
[30] The Tribunal found the applicant to be a Muslim and not a “Tamil”. The two terms are not interchangeable. One refers to a person’s religion – ie, an adherent to Islam. The other refers to a person’s race or ethnicity: ie Tamil. Both are independent, separate Convention grounds. The applicant never claimed to fear persecution because of her religion. Nor did she ever claim to fear persecution from the Sri Lankan authorities because she was Muslim, nor did she claim to fear persecution at the hands of the LTTE, or any other non-State actor because she was Muslim.
[31] The evidence wholly supported the applicant’s claim to be of Tamil ethnicity and race, and the accuracy of this evidence was never put in issue by the Tribunal:
a.On her protection visa application, the applicant:
i. listed her language as Tamil;
ii. listed her ethnic group as Tamil; and
iii. listed her religion as Islam. [Footnote: CB 13.]
b.In her statutory declaration, the applicant stated “I am a Tamil. My religion is Islam .... My family were all Tamil Muslims”. [Footnote CB 30.]
c.In her statutory declaration she characterised her fear as ‘I fear I will be targeted because I am a suspected supported (sic) of the LTTE. As a Tamil woman who is suspected of supporting the LTTE, I will be raped and abused by the Sri Lankan police and I will have no protection from such abuse .... There are many reports of fighting and killing of Tamils who are suspected of being LTTE supporters .... I do not believe the government has done anything to stop the rape of Tamil women in custody by security forces.” [Footnote: CB 30-31.] [emphasis added by the applicant]
d.The applicant’s migration agent squarely put her claim as one deriving from her Tamil ethnicity: see CB 38.
[32] It is impossible to understand how the Tribunal could, in the face of the evidence before it, make the finding it did at CB 116. The applicant plainly is a Tamil and a very significant part of her claim rested on her ethnicity. This wrong approach to the applicant’s claim, and wrong factual finding, caused the Tribunal to misunderstand or misstate the applicant’s claim, and to go off on the excursion apparent in the next paragraph of its reasons, about “ethnically-motivated violence against Muslims” which was never part of the applicant’s claim. The mistake led the Tribunal to erroneously conflate the applicant’s religious beliefs with her ethnicity and in so doing, to fail to consider the correct Convention ground and nexus in its deliberations.
[33] To make a finding of fact that the applicant was not a Tamil was in this circumstance a jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 at [5]. Likewise, an error of fact might, depending on its nature, indicate that the decision-maker did not give proper and genuine consideration to a matter he or she was bound to consider which is a jurisdictional error: see Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36].
The first respondent's written submissions on this ground were as follows:
[25] The applicant contends that the Tribunal’s made a “wrong” finding that the applicant was a Muslim and not a “Tamil”. However, the Tribunal’s findings of fact are not susceptible to review by this Court. There is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact. [Footnote: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [20].]
[26] The Tribunal made a finding, based on country information, “that Muslims and Tamils are, and see themselves to be, and are seen by Sri Lankan society as, two distinct groups, notwithstanding that they share the same language” [CB115.5]. It was implicit in this finding that Muslims and Tamils are mutually exclusive groups, and that Muslims are Tamil-speaking but otherwise ethnically distinct from Tamils. The country information on which this finding was based was set out in the Tribunal’s reasons at [CB112-114].
[26.1] The UK Home Office Country Report on Sri Lanka quoted from a UNHCR Background Paper which noted that “[t]he Muslims in Sri Lanka view themselves as an ethnic minority ...” [CB113.1].
[26.2] A cable from the Department of Foreign Affairs and Trade (“DFAT”) dated 14 December 1995 (CX12969) observed that the description “Muslim Tamil” was highly unusual, and stated “Muslims in Sri Lanka, although Tamil speaking, do not see themselves as Tamils. Muslims see themselves, and, importantly, are seen by others, as Muslims – their own separate ethnic group” [CB114.4].
[26.3] See also the country information set out in the delegate’s decision at [CB47], particularly the extract from a DFAT Country Information Report dated 11 October 1999 (Pleadings before the UN Committee Against Torture) (CX40936):
In Sri Lanka, in common perhaps only with the Balkans, Muslims are regarded as an ethnic group. Thus people are not regarded as being of ‘Tamil/Muslim’ ethnicity ... they are either Muslim or Tamil, or Sinhalese, Burgher, Malay etc.
[27] In the light of the above evidence, it was open to the Tribunal to find that the applicant was a Muslim, and belonged to an ethnic group that was relevantly separate and distinct from Tamils.
[28] Contrary to the applicant’s contentions [footnote: see para 32 of the applicant’s contentions], the Tribunal did not approach the applicant’s claims as being based on her religion rather than her ethnicity, nor did it erroneously conflate the applicant’s religious beliefs with her ethnicity. Rather, it made findings based on country information that the ethnic group to which the applicant belonged was that of (Tamil-speaking) Muslims. [emphasis in the original.]
The applicant said in oral submissions that the applicant's claim was made on the ground of race and not religion. Reference was made to a submission by the applicant's migration agent dated 22 August 2006 which said that:
We submit that whilst Tamil Muslims in Sri Lanka may be considered a separate branch of Tamil people from Tamil Hindus, and less closely associated with the LTTE, they may nevertheless be targeted for persecution by the Sinhalese authorities where imputed or actual evidence of their association with the LTTE is brought to light. We submit that were a Sinhalese woman in Colombo found to have Tamil housemates and/or of having given monetary donations to Tamil charities (which may, mistakenly, have been directed to the LTTE), her fate at the hands of the Sinhalese authorities, was most unlikely to equate to the devastating experience of the Review Applicant.
The applicant also referred to a second submission by the applicant's advisers dated 22 August 2006 where it was said that:
We note that on the pretext of investigating terrorism in Colombo (and elsewhere in Sri Lanka) the authorities have, in fact, perpetrated their own acts of terror, many of which were focused on Tamil women. In March 2003, the Asia-Pacific Human Rights Network reported:
… Human rights organisations have also reported allegations of rape by police, army and navy personnel of women suspected of being members of the LTTE and women relatives of LTTE members. … In 2001, the UN Committee on the Elimination of Discrimination Against Women in its Concluding Comments on Sri Lanka noted with alarm "the high and severe incidences of rape and other forms of violence targeted against Tamil women by the police and security forces in the conflict areas.
The applicant argued that the Tribunal had either made a wrong finding of fact on the most central issue in the applicant's claims or had misunderstood the applicant's claims as put. The applicant referred to the case of SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 94 ALD 298 where Greenwood J considered a case in which the Tribunal described a national of Pakistan as a national of Indonesia and went on to consider whether he faced a real chance of persecution should he return to the People's Republic of China. His Honour said at [16] and [33] that:
[16] It can be seen therefore that although the Tribunal has correctly described in parts of the Decision Record the Appellant as a national of Pakistan and has addressed the facts and circumstances of the claim of a well-founded fear of persecution contained in the material before the Tribunal reciting the events identified at [6], the Tribunal has described the Appellant as an Indonesian national in the section described as ‘Findings and Reasons’ and in reaching the ultimate conclusion, the Tribunal has concluded that the Appellant faces a real chance of persecution should he return to the People’s Republic of China now or in the foreseeable future.
...
[33] Central to the exercise of the jurisdiction is an analytical process that focuses upon a fair, just, economical, informal and quick assessment of the facts and contentions of the applicant so as to ensure that the applicant for a protection visa is afforded substantial justice in the context of the merits of his or her case. Errors which misdescribe an applicant as an Indonesian and reach conclusionary observations that the Tribunal cannot be satisfied that the applicant holds a well-founded fear of persecution should he return to a country which is identified as other than the country of nationality, suggest that the deliberative process going to the merits of the Appellant’s case was infused with notions which are erroneous and thus irrelevant to the Appellant’s case and suggest that the Tribunal member may have had in mind facts, circumstances and considerations referable to other cases. An inference is open either having regard to the workload before the Tribunal or perhaps because of the proximity of determination of other cases involving nationals from Indonesia and the People’s Republic of China that the required immediacy of focus and deliberation of the specific claims of the Appellant and the justice and merits of the case were influenced by erroneous considerations. As a result, the Tribunal failed to afford the Appellant the fairness required by s 420(1) and failed to act according to the substantial justice and merits of the Appellant’s case as required by s 420(2).
It was put to the applicant's counsel by the court that the Tribunal's use of quotation marks around the word Tamil might be taken as an indication that the Tribunal consciously made the finding that the applicant was not a Tamil and that this case was therefore unlike SZIFI. The applicant argued that the Tribunal had misunderstood the claim to be that the applicant feared persecution because she was a Muslim. That view was reinforced, in the applicant’s submission, by the fact that the Tribunal immediately went on to consider whether Muslims as such faced persecution in Sri Lanka. The applicant argued that the Tribunal had wrongly focused on religion rather than ethnicity.
In the alternative, the applicant argued that the Tribunal may have rejected the applicant's claim that she was a Tamil but, if it did so, it rejected that claim without alerting the applicant to the possibility that the Tribunal might do so. This argument is considered further in relation to proposed ground 5.
The first respondent argued in oral submissions that Muslim Tamils are a separate ethnic group. The first respondent argued that the group was not simply Tamils who were of the Muslim religion but were a separate group who were treated differently by the authorities by reason of their profile and the perception of them. The first respondent noted that the Tribunal, immediately after making the finding that the applicant is not a Tamil but is a Muslim, said that:
The country information cited above indicates that ethnically -motivated violence against Muslims in areas away from Tiger territory does happen, but rarely. … Such other inter-ethnic hostility or discrimination as exists clearly does not generally manifest itself in harm is serious enough to amount to persecution. … The applicant does not face a real chance of persecution (either by Tamils or Sinhala) due to her ethnicity or religion. (emphasis added)
The first respondent argued that these passages from the Tribunal's decision made it clear that the Tribunal was basing its finding on ethnicity or race albeit on the basis that Muslim Tamils are a distinct ethnic group. The first respondent sought to distinguish the case of SZIFI on the basis that, in that case, the Tribunal had mistaken the relevant country of reference and had accordingly completely failed to address the facts of the claim. In the present case, the first respondent argued, the Tribunal clearly had considered the matters raised in the applicant's claim. The first respondent argued that the Tribunal had not misunderstood the claim but had dealt with it by making the challenged finding. If the Tribunal had erred, in the first respondent’s submission, it had only made an unreviewable error of fact.
Consideration of ground 3
In my view, the Tribunal did not make a wrong finding of fact in concluding that the applicant was not a Tamil but a Muslim. The country information before the Tribunal included a DFAT report quoted in the delegate’s decision to the effect that:
In Sri Lanka, in common perhaps only with the Balkans, Muslims are regarded as an ethnic group. Thus people are not regarded as being of ‘Tamil/Muslim’ ethnicity ... they are either Muslim or Tamil, or Sinhalese, Burgher, Malay etc.
Additionally, the Tribunal set out in its reasons for decision a DFAT report as follows:
The applicant claims to be a “Muslim Tamil”. We find that description highly unusual. Our experience, confirmed by discussions with members of both the Tamil and Muslim communities, is that Muslims in Sri Lanka, although mainly Tamil-speaking, do not/not see themselves as Tamils. Muslims see themselves, and, importantly, are seen by others, as Muslims – their own separate ethnic group.
We are aware that there have been instances of Muslims co-operating with, and even joining, the LTTE, but we understand that these have been extremely rare. Our contacts suggest that it would be unlikely that the police would suspect that a Muslim who has illegally manufacturing (sic) explosives was doing so to supply them to the LTTE – they could have been intended for other illegal activities.
Although Islam is obviously a religion, it appears that in Sri Lanka, as in the Balkans, Muslims are regarded as an ethnic group. In the circumstances, it was open to the Tribunal to conclude that the applicant did not, from the point of view of possible persecutors rather than geneticists, belong to the ethnic group known in Sri Lanka as Tamils but rather belonged to the ethnic group known in Sri Lanka as Muslims. Accordingly, the Tribunal did not make an error of fact in this regard.
I reject the applicant's argument that the Tribunal misunderstood the applicant's claim by treating it as a claim of religious persecution rather than a claim of persecution based on ethnicity. The Tribunal clearly understood that the applicant claimed to be a Tamil. The Tribunal rejected that claim and found instead that she was a Muslim. It was open to the Tribunal to do so, subject to the procedural fairness considerations and the requirements of s.424A of the Act which are discussed in relation to proposed ground 5.
The Tribunal went on to consider whether Muslims in general suffered from persecution in Sri Lanka and concluded that they did not. In considering this matter, I take it that the Tribunal was simply examining any possible ground of persecution that arose on the materials. The Tribunal, in considering the position of Muslims in Sri Lanka, was not in any way misapprehending the applicant's claims. The Tribunal's use of quotation marks around the word Tamil shows that the Tribunal understood that the applicant claimed to be a Tamil but did not consider her to be a Tamil as that term is understood in Sri Lanka. This ground is not made out.
Ground 4: failure to consider guidelines
Ground 4 in the amended application filed with the court on
28 February 2007 is as follows:
The Tribunal acted without or in excess of jurisdiction, by misunderstanding the nature of its task.
Particulars
i)In deciding whether it was satisfied that the First Applicant had a well founded fear of persecution for a Convention reason, the Tribunal was required to consider all relevant probative material before it and to do so in a way which took into account the nature and circumstances of how people come to flee their countries of nationality and to make claims for asylum, as well as the experiences such people are likely to have had before and in fleeing their country of nationality.
ii)The Gender Guidelines promulgated by the First Respondent, and the Credibility Guidelines, promulgated by the Tribunal, reflect this part of the Tribunal’s task and the Tribunal is required to apply both sets of guidelines in its fact finding about Art 1A of the Refugees’ Convention.
iii)The First Applicant’s claim in relation to past persecution involved rape and sexual assault. The First Applicant claimed, with supporting evidence, to have suffered significant psychiatric injury as a result of these events.
iv)Despite referring to the Gender Guidelines, the Tribunal did not apply those guidelines to its decision making.
v)In rejecting the First Applicant’s claim to have been raped and sexually assaulted in the past, the Tribunal relied on four adverse findings based on four aspects of the First Applicant’s evidence.
vi)Taken singly or together, the Tribunal’s findings on each of these matters took no account of the Gender Guidelines, which it was bound to apply.
vii)Taken singly or together, the Tribunal’s findings on each of these matters took no account of the Tribunal’s Credibility Guidelines, which it was also bound to consider and apply.
The document headed “further examples of non-consideration of guidelines” handed up during the applicant's reply is somewhat difficult to follow. However, it refers to various parts of the gender guidelines including the establishment of confidence and trust, a supportive environment and good rapport. The applicant did not indicate specifically any failure of the Tribunal in these respects. In any event, I do not accept that a failure to establish a good rapport and such like would constitute a jurisdictional error, provided that the manner of the Tribunal was such that the applicant was not so inhibited from giving her evidence that she was denied procedural fairness. As noted above, there is no allegation of that sort in this matter.
The applicant also referred to paragraph 3.9 of the gender guidelines which says that an objective of an interview is to obtain further information and clarify any details that are uncertain or ambiguous. The applicant did not explain how it was said that the Tribunal had ignored or failed to comply with this guideline. It may be that after repeated enquiries, the applicant’s evidence remains uncertain or ambiguous. In any event, I consider that the well-established principle that it is not for the Tribunal to make out the applicant's case would prevail over the general statement in the guideline. The applicant also referred to paragraphs 3.12 to 3.13 of the gender guidelines which deal with a reluctance to divulge details. Again, it was not explained how it was said that the Tribunal had ignored or failed to comply with this guideline. All in all, I am not persuaded that the Tribunal ignored or failed to comply with any aspect of the gender guidelines.
I accept that the credibility guidelines were in force before the Tribunal handed down its decision in this matter. There is no reason to believe that the Tribunal had any regard to the credibility guidelines as such. It appears that the Tribunal member signed the decision on about the date when the credibility guidelines were published. There is no mention of them in the Tribunal's decision. Nevertheless, for the reasons given above, I do not accept that a failure to have regard to the credibility guidelines constitutes jurisdictional error. Having said that, a failure to apply the principles set out in the credibility guidelines might constitute jurisdictional error, depending on the nature of the particular guideline and the nature of the failure to apply it.
The particular aspects of the credibility guidelines that the applicant relied upon in her written submissions were the impact of trauma on a person's ability to give a detailed and consistent account and the Tribunal substituting its own lay opinion for an expert opinion. In relation to the impact of trauma, it is clear from the transcript of the Tribunal hearing that the Tribunal took this matter into account. The Tribunal said:
I'm certainly keeping that in mind. ... I'm keeping that in mind all the time...
In relation to the lay opinion, the applicant argues that the Tribunal substituted its own opinion of the cause of the applicant's symptoms for the opinion of Dr Schwarz. However, Dr Schwarz did not witness the events that caused the applicant’s symptoms and could say no more than that those symptoms were consistent with her account. It was entirely a matter for the Tribunal to decide whether the events which the applicant claimed had caused her symptoms had actually occurred. Such a decision did not involve the Tribunal substituting its lay opinion for the expert opinion of Dr Schwarz. The Tribunal was not obliged to find evidence of an alternative causation before it could disbelieve the applicant's account.
In the document headed "further examples of non-consideration of guidelines", the applicant said in addition that the Tribunal had failed to consider the whole of the evidence in context and had relied heavily on the subjective beliefs of the member contrary to the guidelines. I do not accept that the Tribunal failed to consider the whole of the evidence. The Tribunal set out in considerable detail the evidence given by the applicant and others on her behalf and said that it had considered the evidence as a whole. Such a statement is obviously not conclusive. However, an applicant is still required to demonstrate where the Tribunal considered the facts in isolation. In attempting to do so, it is not enough to say that the Tribunal in its reasons dealt with the issues one after the other. That is just a requirement of presenting reasons in an orderly manner. Rather, the applicant needs to show that the Tribunal disregarded a particular part of the material in coming to its conclusion on another part. The applicant has not demonstrated such a disregard in this case.
In relation to the subjective beliefs of the Tribunal member, the applicant referred to paragraph 2.4 of the credibility guidelines which states that:
Findings made by the Tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member's subjective belief or gut feeling about whether an applicant is telling the truth or not. The Member should focus on what is objectively reasonably believable in the circumstances.
It can be seen that the guideline does not prohibit the Tribunal from acting on its own knowledge in an appropriate case but prohibits the Tribunal from deciding whether a person is telling the truth on the basis of a subjective belief or gut feeling about whether the person is telling the truth. The applicant did not allege that the Tribunal decided that the applicant was not telling the truth on the basis of a subjective belief or gut feeling. Rather, the applicant alleges that during the course of the hearing the Tribunal said things that were based on its subjective beliefs. The Tribunal is empowered to rely on its own understanding of human nature and the ways of the world, subject, for example, to the requirements of procedural fairness. During the course of the hearing, the Tribunal might explore possibilities or be under a misapprehension. It might say things that are clearly incorrect but which do not ultimately form part of its reasons. These matters do not constitute jurisdictional error. The applicant did not point to anything that formed part of the Tribunal's reasons that impermissibly relied on the Tribunal's subjective beliefs. In all the circumstances, this ground is not made out.
Proposed Ground 5:
Proposed ground 5 in the proposed further amended application filed with the court on 9 May 2007 is as follows:
The Tribunal acted without or in excess of jurisdiction, by failing to comply with s 424A(1) of the Migration Act 1958.
Particulars
i)The First Applicant’s claim relied upon the Convention ground of her race/ethnicity, namely that she was a Tamil.
ii)The Tribunal found that the First Applicant was not a “Tamil” but was a Muslim.
iii)If, properly construed, the Tribunal’s finding meant that for the purposes of applying Art 1A of the Convention to her, the Applicant should be considered to be ethnically Muslim and not a Tamil in accordance with the claim she had made, then the Tribunal failed to comply with s424A.
iv)That the First Applicant was not a “Tamil” and, for the purposes of applying Art 1A of the Convention should, and could, be considered to have a race described as Muslim, was a reason or part of the for (sic) reason for the Tribunal’s decision to affirm the decision under review.
v)Information relied on by the tribunal for this reason was not given to the First Applicant.
vi)The Tribunal failed to ensure that the First Applicant and her advisor understood how the proposition that for the purposes of applying Art 1A of the Convention she could be considered to be of a race described as Muslim and not considered to be ethnically Tamil in accordance with the claim made by her was relevant to the review; and
vii)The Tribunal failed to invite the First Applicant to comment on the proposition, and information supporting the proposition, that for the purposes of applying Art 1A of the Convention she might be considered to have a race described as Muslim and should not be considered to be ethnically Tamil in accordance with the claim made by her.
The applicant’s written submissions on this ground were as follows:
Tribunal finding that the first applicant is not a “Tamil”
[3] The application for a protection visa made by the first applicant (“the applicant”) included the claim that, ‘I am a Tamil. My religion is Islam.” (CB30) and further that:
I fear that I will be targeted because I am a suspected supporter of the LTTE. As a Tamil woman who is suspected of supporting the LTTE, I will be raped and abused by the Sri Lankan police and I will have no protection from such abuse. (CB 34)
[4] The Delegate of the Minister accepted that that applicant was a Tamil in her decision record dated 12 April 2006 (CB43).
[5] Despite this, the Tribunal, under the heading “Findings and Reasons” concluded that
As for the reasonably foreseeable future, since the applicant is not “Tamil” the Tribunal does not accept that she faces any kind of persecution as a “Tamil” or any variation on that group. She is a Muslim. (CB 116)
[6] The Minister contends, in both his written contentions [footnote: respondent’s contentions at [26]] and orally before the Court, that it is implicit in this finding of the Tribunal that the Tribunal was making a finding that Muslim Tamils and Hindu Tamils in Sri Lanka are different ethnic groups, and that Muslim Tamils are Tamil-speaking but otherwise perceived to be ethnically distinct from Tamils, so that the risks of persecution to a Muslim Tamil from the Sinhala majority, and/or the authorities such as the police, needed to be differently assessed.
[7] The question is, if that is what the Tribunal meant [footnote, and the Applicants have contended it is not, in the sense that an ordinary reading of the finding suggests the Tribunal has rather mistakenly identified the applicant by reference to her religion, and has ignored, or wrongfully identified, her race], has the Tribunal acted in breach of s 424A or otherwise denied the applicant procedural fairness in the making of such a finding.
Section 424A: obligation to provide “information”
[8] If the respondent’s contention is correct, Tribunal (sic) may be taken to have determined that for the purposes of Art 1A of the Convention, the applicant should be considered to be ethnically Muslim and not ethnically Tamil in accordance with the claim she had made. In order to make such a finding, the Tribunal must necessarily have been apprised of information that it was not correct to characterize the applicant as ethnically Tamil. In the absence of any such information the Tribunal would have made a jurisdictional error in making a finding of fact without any supportive probative evidence. [Footnote: Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50.]
[9] Information that the applicant is not ethnically a “Tamil”, is ethnically a Muslim and for that reason faces different (and lesser) risks of persecution in Sri Lanka, is tangible knowledge and does not amount to a “subjective appraisal”, “thought process” or “determination” of the Tribunal. [Footnote: Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [95]]. To the extent that the Tribunal’s reasons reflect a subjective thought processes about the applicant’s ethnicity, it is submitted that these reveal the perceived importance of information that the applicant was not a “Tamil”. [Footnote: Ibid.]
[10] In SZEEU v MIMIA (2006) 150 FCR 214, Allsop J at 259-260 [204]-[205] described ‘information’ in the context of s 424A:
The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision.
Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd Ed 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3] approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].
[11] That the applicant is not ethnically a Tamil, is ethnically a Muslim and for that reason faces different (and lesser) risks of persecution in Sri Lanka is information within Allsop J’s statement in SZEEU.
[12] The Information is also an asserted fact which is contrary to the way the applicant put her claim. She consistently described herself as a Tamil, and made her claims on the basis she was ethnically Tamil. If there is any doubt whether these asserted facts could be information, it is as well to recall the statutory purpose of s 424A is to ensure that a person is fully informed about asserted facts or material adverse to her claim so that she may deal those (sic) asserted facts or material. In VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231, Young J stated at [52]:
In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s 424A is irrelevant to its proper construction and application. In SAAP, McHugh J at 181 [73] said that s 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66]. Hayne J emphasised the crucial role played by the language, scope and objects of s 424A in its construction and application: see SAAP at 211 [208]. In Paul, Allsop J construed and applied s 424A in the light of its purpose of “ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it”: see Paul at 429-430 [104]. In Al Shamry at 40 [39], Merkel J said that s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. Cases may arise in which it is appropriate to take account of the statutory purpose of s 424A in determining whether there is any information within the meaning of s 424A, or whether particular information is the reason, or a part of the reason, for the Tribunal’s decision. I do not consider that there is anything to the contrary in SZEEU.
[13] Information that the applicant was not ethnically a Tamil was ultimately the reason or part of the reason for the Tribunal affirming the decision under review. That is apparent from its findings. This finding was really the only finding which went directly to the Tribunal’s speculation about what might happen to the applicant on her return to Sri Lanka. There is no doubt the Tribunal did not comply with a 424A (sic) in respect of this information. Its decision can only avoid being affected by jurisdictional error on this ground if it was not required to comply with s 424A. In other words, this is not a case which turns on an examination of the nature of the Tribunal’s compliance with s 424A.
Exceptions for certain information do not apply
[14] The exemption to the obligation to provide information in s 424A(3)(a) does not apply to the information. Whilst the Tribunal states that “Muslims and Tamils are, and see themselves to be, and are seen by Sri Lankan society as, two distinct groups”, information (it being an assertion of fact) that the applicant is not a member of a particular ethnic group relates specifically to the applicant. It is certainly not the case that this applicant “saw herself to be” distinct from other Tamils – her claim is based around her ethnicity being Tamil.
[15] Country information might be said to provide some evidentiary support for the asserted fact that the applicant is not ethnically a Tamil, but it is not the country information which needed to be put to the applicant. It was the asserted fact – namely, that the applicant herself was ethnically Muslim, not ethnically Tamil and for that reason faced a lesser risk of persecution from those whom the tribunal were recognised might persecute a person of Tamil ethnicity. As such, information goes beyond being country information and beyond the parameters of the s 424A(3)(a) exclusion. [Footnote: Cf. Minister for Immigration and Indigenous Affairs v NAMW (2004) 140 FCR 572.]
[16] Similarly, information that the applicant was not ethnically a Tamil was not given by the applicant herself, nor is it non-disclosable information for the purposes of ss 424A(3)(b) and (c).
Procedural fairness
[17] Furthermore, the Tribunal failed to accord the applicant procedural fairness pursuant to s 425(1) in that it failed to invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review. That the applicant was not ethnically a Tamil was not a reason given by the Delegate of the Minister for refusing the application. Since the Tribunal Member failed to provide to the applicant information that she was not ethnically a Tamil, or in any way challenge the ethnicity she claimed to have, the applicant was entitled to assume that this aspect of her claim was not in issue before the Tribunal. By failing to put the applicant on issue that certain aspects of her claim were important issues, the Tribunal failed to afford her the opportunity to be heard on those issues. [Footnote: SZBEL v Minister for Immigration and Indigenous Affairs 231 ALR 592 at [35] – [36].]
The first respondent’s written submissions on this ground were as follows:
[1] These submissions are filed in response to the applicants’ “supplementary submissions on procedural fairness” dated 18 May 2007, and address the application for leave to amend the application for review to include proposed ground 5, namely:
The Tribunal acted without or in excess of jurisdiction, by failing to comply with s.424A(1) of the Migration Act 1958.
[2] Under this proposed ground of review, the applicant seeks to challenge the Tribunal’s finding that the applicant was a Muslim and not a “Tamil” [CB 116.6].
[3] As the Minister submitted in paragraphs 25-28 of his Contentions of Fact and Law dated 12 April 2007, this finding was directed to the ethnicity of the applicant. This is made clear from the next paragraph of the Tribunal’s reasons, in which the Tribunal referred to “ethnically-motivated violence against Muslims”, “inter-ethnic hostility or discrimination”, and found that the applicant did not face a real chance of persecution (either by Tamils or Sinhala) due to her ethnicity or religion [CB116.8].
[4] The finding that the applicant was a Muslim and not a Tamil was in turn based upon a finding “that Muslims and Tamils are, and see themselves to be, and are seen by Sri Lankan society as, two distinct groups, notwithstanding they share the same language”[CB115.5]. This finding was explicitly based on “country information” which was identified in the Tribunal’s reasons (see paragraph 26 of the Minister’s contentions dated 12 April 2007), and was described by the Tribunal as “independent information about ethnicity in Sri Lanka [and] about the way counter-terrorism measures operate there”.
[5] There is no doubt that the “independent information” about ethnic groups in Sri Lanka fell within the exception in s.424A(3)(a) of the Migration Act 1958, namely, information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. [Footnote: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [123]-[138] per Merkel and Hely JJ, see also at [66]-[71] per Beaumont J; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14] per Gyles and Conti JJ; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42]-[46]; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [15]-[16].] The applicant does not seek to contend to the contrary. [Footnote: Applicants’ contentions, paragraph 15.]
[6] Rather, the applicant contends that s.424A required the Tribunal to give particulars of its finding that the applicant was a Muslim and not a Tamil. The applicant attempts to characterise this finding as “information” for the purposes of s.424A. However, this reflects a basic confusion of the finding made by the Tribunal with the information on which that finding was based.
[7] Section 424A does not require the Tribunal to give to an application (sic) particulars of its proposed or preliminary findings. The term “information” in s.424A(1) refers to. “knowledge of relevant facts or circumstances communicated to or received by the Tribunal”. [Footnote: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]. [49]-[54]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 2 at [18] per Moore J; [205]-(207] per Allsop J.] It does not encompass the Tribunal’s subjective appraisals, thought processes or determinations. [Footnote: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 2 at [18] (Moore J); [207], [222]-[223] (Allsop J); NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [29]-[30]; see also SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 1195 at [29]. See generally Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [49]-[54]; Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 at [21] per Merkel J; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [95] per Allsop J; Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 277 at [16]-[20] per Emmett J.
[8] Nor does it assist the applicant to describe the Tribunal’s finding as an “asserted fact which is contrary to the way the applicant put her claim”. [Footnote: Paragraph 12 of the applicant’s supplementary submissions; see also paragraph 15.] This simply means that the Tribunal made a finding of fact in which it did not fully accept the claims made by the applicant. It does not mean that s.424A(1) is applicable in relation to that finding of fact.
[9] The correct analysis is that the Tribunal’s finding that the applicant’s ethnicity was Muslim and not Tamil was based on the following information:
[9.1] the identified country information relating to ethnic groups in Sri Lanka; and
[9.2] the information that the applicant was a Muslim.
[10] The country information fell within the exception in s.424A(3)(a). The information that the applicant was a Muslim was given by the applicant to the Tribunal and fell within the exception in s.424A(3)(b). [Footnote: See, for example, [CB30, 63.6, CB 65.8, 88.5, 97-98].
Procedural fairness
[11] Proposed ground 5 does not encompass any alleged failure to accord procedural fairness, and no additional leave to amend has been sought by the applicant.
[12] In any event, the Tribunal did not fail to give the applicant an opportunity to be heard on the issues relating to her ethnicity, including the question whether Muslim Tamils were considered to be a distinct group.
[12.1] The applicant wrongly contends “[t]hat the applicant was not ethnically a Tamil was not a reason given by the [delegate] for refusing the application. [Footnote: Applicants’ contentions, paragraph 17.]
[12.2] This contention completely overlooks the specific findings made by the delegate, including:
Country information indicates that the Sri Lankan authorities consider Muslims to be a separate ethnic group to Tamils. [CB47.4]
I am satisfied that the applicant is a Muslim, and would be identified as a Muslim if she returned to Sri Lanka. [CB47.6]
I have found, above, that the applicant would not be identified as a Tamil but as a Muslim in Sri Lanka. I am not satisfied that she will be targeted due to her ethnicity and I am not satisfied that as a Muslim she would be imputed with a political opinion as a LTTE supporter. [CB48.5]
[12.3] The issues relating to the applicant’s ethnicity were therefore “issues arising in relation to the decision under review.” [Footnote: Cf: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63.]
[12.4] Further, specific submissions were made by or on behalf of the applicant addressing these issues arising from the delegate’s findings in relation to Muslims and Tamils: see [CB97.1, 97.9, 102-103, 108.5].
[13] Similarly, the applicant’s contention that the delegate accepted that the applicant was a Tamil is misleading, if not plainly incorrect. [Footnote: Cf. paragraph 4 of the applicants’ supplementary submissions.] The delegate stated under the heading “Case History” that the applicant was “a 33 year old, Muslim, Tamil, married woman from Sri Lanka” [CB43.8]. However, as outlined above, the delegate went on to make specific findings in relation to race and ethnicity which were relevantly identical to the findings made by the Tribunal on that question – namely, that country information indicated that Muslims were considered to be a separate ethnic group to Tamils in Sri Lanka [CB47.5]; and that the applicant would be identified as a Muslim and not as a Tamil if she returned to Sri Lanka [CB47.6, 48.6].
Consideration of proposed ground 5
It is clear that the information the Tribunal relied upon to conclude that the applicant was a Muslim and not a Tamil was, firstly, information provided by the applicant herself directly to the Tribunal to the effect that she was a Muslim and, secondly, general country information that was not specifically about the applicant or another person but just about a class of persons, namely Muslims in Sri Lanka. Accordingly, the information that the Tribunal relied upon fell within the exceptions in s.424A of the Act and there was no obligation on the Tribunal to furnish the information to the applicant. As a result, the proposed ground 5 cannot succeed and leave to amend the application to include the proposed ground 5 is refused.
In the written submissions in support of the proposed ground 5, the applicant added an argument that she had been denied procedural fairness in relation to the issue of whether the applicant was a Tamil or a Muslim. The applicant has not at any stage sought leave to raise this ground. Nevertheless, for completeness, I will address it.
The procedural fairness ground relies on the High Court's decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 231 ALR 592. More particularly, it relies on the alleged absence from the delegate's reasons of any suggestion that the applicant was not a Tamil. However, as the first respondent’s submissions show, the delegate did in fact note that country information indicates that the Sri Lankan authorities consider Muslims to be a separate ethnic group to Tamils and did in fact conclude that the applicant is a Muslim who would be identified as such if she returned to Sri Lanka. Accordingly, the issue of the applicant being a Muslim as opposed to a Tamil was squarely on the table. No doubt, for that reason, the applicant's advisers had made submissions addressing the question of the applicant's Muslim as opposed to Tamil identity. In the circumstances, the applicant was not denied procedural fairness in relation to the conclusion that she was a Muslim rather than a Tamil.
Conclusion
As none of the grounds or proposed grounds has been made out, the application must be dismissed. As the application did not proceed in the usual way, I will hear counsel on the question of costs.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 1 August 2007
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