M150 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 273

FEDERAL COURT OF AUSTRALIA

M150 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 273

M150 OF 2002  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1 of 2005

RYAN J

22 MARCH 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1 of 2005

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	M150 OF 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	22 MARCH 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs, to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1 of 2005

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	M150 OF 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	22 MARCH 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1           This is an appeal from a decision of Phipps FM made on 17 December 2004 dismissing the appellant’s application for prerogative relief against a decision of the Refugee Review Tribunal (“the Tribunal”).  On 19 July 2002 the Tribunal decided not to grant the appellant a protection visa.

Background

2           The history of the appellant’s claim for a protection visa was set out by Phipps FM in his reasons for decision at [4]–[12] as follows;

‘4. The applicant claimed that while he was working for S he came into contact with a Tamil by the name of K and they became good friends. K left about two years after an incident in which he was taken into custody by security forces on suspicion that he was an LTTE [Liberation Tigers of Tamil Eelam] supporter.

5. The applicant claimed that in December 1997, K advised him that he wanted to start some sort of business and he had already established contacts. He said he had contacts with dealers abroad to export garments from Sri Lanka but what promised to be a lucrative enterprise was hamstrung by a lack of warehouse facilities. The applicant claimed that in the third week of February 1998, K asked the applicant if he could help him by storing some of his textiles in part of this warehouse. The applicant claimed that he acceded to the request as a personal favour.

6. The applicant claimed that in the second week of March 1998, K came to his residence with two Tamil youths and introduced them as his business partners. The applicant claimed that he gave his business card to one of them and asked them to contact him during the second week of April, by which time he believed he would be able to make the necessary arrangements for the goods to be stored.

7. The applicant claimed that he heard nothing and so he called at the boarding house where the business partners were staying. He claimed he was told by other inmates that the residence was cordoned off and searched and that one of the business partners was taken into custody along with explosives found in his possession.

8. The applicant claimed that on 15 April 1998, K, one of the business partners and another person met him and told him the goods were arriving on 20 May 1998 and asked him to make arrangements to store them. The applicant claimed that he refused. The applicant claimed that he was threatened. The applicant claimed that this incident showed that K and his friends were members of the LTTE.

9. The applicant claimed that on 7 May 1998, K contacted him and informed him that security officers had arrested his business partner and were searching for K himself. He claimed that K stated that because the business partner had the applicant's business card, the security forces would wish to interrogate the applicant and when they did so he should not disclose K's name and the arrangements regarding the warehouse.

10. The applicant claimed that he and his wife were frightened, left the house and went to stay at his wife's aunt's house. He claimed that on the same day, late at night, the security forces came to his house and questioned his in-laws about his whereabouts.

11. The applicant said that because his wife was employed by the airline department, she was able to bring their departures forward and they were able to leave Sri Lanka. The applicant claimed that after he arrived in Australia, he was informed by his in-laws that the security forces had come to his residence in search of him and they told his father-in-law they had gathered a substantial body of information about his involvement in the LTTE.

12. Submissions to the Tribunal, by the applicant's adviser, were that people believed to be sympathetic to LTTE were being systematically harassed and persecuted in Sri Lanka. The applicant's claim put by their adviser was that the applicants were perceived by the authorities as people with close links to the LTTE and therefore a challenge to the authorities. The adviser put that as far as the security situation in Colombo was concerned, even a remote suspicion was sufficient for the authorities to arrest, detain and torture a person.’

Grounds of appeal

3           The appellant filed a notice of appeal on 4 January 2005 alleging that the decision of the Federal Magistrates Court was affected by jurisdictional error, constituted primarily by alleged denial of natural justice.  The notice of appeal recites that the learned Federal Magistrate;

(a)did not give proper consideration to the appellant’s claim that there was a real chance of  persecution if he and his family returned to Sri Lanka

(b)erred by failing to consider how the police force in Sri Lanka might act, given the information provided and had been guilty of a complete lack of logic in his reasoning in this respect

(c)       erred by not giving proper consideration to the question ‘what if I am wrong?’

(d)took into account an irrelevant consideration, that is, that the appellant is a Muslim; and

(e)failed to find that the Tribunal should have put to the appellant its finding that he had fabricated his claim that police had visited the house of his parents-in-law.

The Tribunal’s decision

1. The Tribunal’s decision was summarised in these terms at [13]-[21] of the reasons below;

   ‘13.     The Tribunal accepted that the applicant had agreed to provide warehouse space to assist his friend K without realising at the time he had agreed to the request, that K had connections with the LTTE and that K may have intended to use the warehouse to store materials for the LTTE. The Tribunal accepted that when the applicant became suspicious of his friend, he did not inform the authorities because he was frightened that the authorities would believe he was intentionally assisting the LTTE.

   14.      The Tribunal accepted that the applicant left Sri Lanka because he believed this was the easiest and quickest way to get out of the difficult position he perceived himself to be in, and that he put forward his planned departure after he learned that his friend's associate, who had the applicant's business card in his possession, had been arrested. The Tribunal accepted that the security forces came to the applicant's parents-in-law’s house and asked about his whereabouts.

   15.      The Tribunal said that it recognised that at the time these events occurred, the Sri Lankan authorities did not always comply with international human rights standards or with the Sri Lankan law when dealing with suspected terrorists. The Tribunal referred to a report by the US State Department on Human Rights Practices in Sri Lanka and said it could understand why the applicant was afraid of being questioned by security forces at the time.

   16.      The Tribunal said that although it accepted the information about human rights practices in Sri Lanka, it was not satisfied that if the applicant was to return to Sri Lanka, now or in the foreseeable future, that there was a real chance he would be persecuted by the Sri Lankan authorities because they had imputed an adverse political opinion to him.

   17.      The Tribunal accepted that the authorities wanted to question the applicant in May 1998, presumably because they had discovered his business card when they arrested K's associate. The Tribunal accepted that that person and possibly others may have told the authorities at some point that they intended to use the warehouse space provided by the applicant.

   18.      The Tribunal accepted it would be reasonable for the police to want to question the applicant about these matters. The Tribunal said that the fact was that the applicant had done nothing more than agree to provide warehouse space for a consignment which, at the time he was asked, he was given to understand comprised textiles. The warehouse was never actually used by the LTTE. The Tribunal did not accept that the applicant would have been subjected to arbitrary arrest, detained and mistreated and that he would have been suspected for having knowingly supported the LTTE given the limited nature of his involvement with K's activities.

   19.      The Tribunal noted that, as a Muslim, the applicant would not be a person that the security forces would suspect of wanting to assist the LTTE. The Tribunal referred to reports that Muslims did not support the LTTE and that the LTTE was hostile to Muslims.

   20.      The Tribunal said that apart from the applicant's sudden departure, there was no reason why the Sri Lankan authorities would regard the applicant more adversely if he were to return to Sri Lanka than they did at the time of his problems with K.

   21.      The Tribunal found that the applicant had not been imputed with an adverse political opinion by the Sri Lankan authorities. It found that if he were to return to Sri Lanka now, or in the reasonably foreseeable future, there was not a real chance that the applicant would be imputed with an adverse political opinion and persecuted for that reason.’

   The Federal Magistrate’s decision

   5           Phipps FM found that the Tribunal had not erred in its application of the “real chance” test nor in its assessment of how the Sri Lankan police might conduct themselves.  At [23]-[27] of his judgment he observed;

   ‘22.     The applicant submitted that the Tribunal had not applied the proper test. It had not applied the test whether there was a “real chance” of persecution (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). It had not, it was submitted, asked the question “what if I am wrong”.

   23.      The submission had several limbs to it. First, it was submitted that the Tribunal had set out general considerations and principles about the law and considerations for Visa claims under the Refugees Convention in a generic way. It was then submitted that the Tribunal had looked at the way in which it considered a police force might act, and not the way a police force in Sri Lanka might act. It was then submitted that the Tribunal had not asked the question “what if I am wrong”, that is, not considered what the consequences for the applicants might be if the Tribunal's decision was wrong.

   24.      Either as part of this submission or as a separate submission, it was submitted that there was such illogicality in the Tribunal's approach that it had not considered the real issue and so there was jurisdictional error.

   25.      In the final paragraph of its reasons under the section “Findings And Reasons”, the Tribunal said:

   The Tribunal finds that if he were to return to Sri Lanka now or in the recently foreseeable future there is not a real chance that the applicant would be imputed with an adverse political opinion and persecuted for this reason.

   26.      Before making that statement, the Tribunal had made a detailed examination of the evidence and claims put forward on behalf of the applicants. The Tribunal has said that it has applied the “real chance” test. It has set out general principles and considerations in what might be described as a generic way, or a way in which it is done for many Tribunal decisions. That is not a criticism. The general principles and considerations contained at the commencement of the Tribunal's reasons are just that, general principles and considerations. They are the same for all refugee Visa applications. That does not mean that the Tribunal has not considered them. The Tribunal stated in its reasons that it has applied the “real chance” test. There is no reason to doubt that.

   27.      The submission that the Tribunal has applied its own understanding of the way a police force might act and not the way a Sri Lankan police force might act is a criticism, if at all, of the Tribunal's approach to the merits of the case. It is not a failure to take into account relevant matter or to consider an irrelevant matter.’

   6           His Honour also held that the Tribunal was not required to ask itself “what if I am wrong?”.  At [28]-[30] he stated;

   ‘28.     A Tribunal does not have to ask itself the question “what if I am wrong”. In Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, Sackville J (with whom North J. agreed) said at [63]:

   63 Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

   29.      Kenny J said at [140]:

   140 There is, however, nothing in the judgments of the majority in Guo or Wu Shan Liang to require the RRT to address the specific question “What if I am wrong?” after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution. Indeed, I doubt that Kirby J intended to be understood as requiring that: see Wu Shan Liang at 293. In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case. That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant's past may ground a fear of persecution for a Convention reason. In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.

   30.      The Tribunal was not required to ask itself the question “what if I am wrong”. It has stated the correct test to be applied. It has made findings of fact and it has considered whether in the future if the applicant returned to Sri Lanka he would face a real chance of persecution. There has been no error in the Tribunal's approach.’

   7           His Honour characterised that the Tribunal’s finding concerning the actions of the police as one of fact available to the Tribunal on the information before it and considered that a want of logic, even if established, did not amount to a jurisdictional error.  His Honour held, at [33];

   ‘The argument about lack of logic involved the same criticism as already described. That is, that the Tribunal had considered what it thought a police force would do, not what a police force in Sri Lanka would do. Even if there is a lack of logic, it does not amount to a failure to consider an issue and so a jurisdictional error. It does not involve a finding for which there was no information from which the Tribunal could realistically draw the conclusion it did As part of its fact finding process, the Tribunal has considered the question whether the authorities and the police force in Sri Lanka would have thought that the applicant was sympathetic to the LTTE. It concluded that it would not. That is a matter of fact for the Tribunal to determine. There was information before the Tribunal from which it could draw the conclusion.’

   8           At [34] his Honour held that it was not irrelevant that the appellant was a Muslim;

   ‘For the applicant, it was submitted that the Tribunal took into account an irrelevant consideration, that the applicant was a Muslim. The consideration was not irrelevant. The Tribunal had to consider whether the authorities would regard the applicant as an LTTE sympathiser. The relationship between the LTTE and a social and religious group, to which the applicant belonged, in this case the Muslim community, was relevant to that consideration. In any event, even if it was irrelevant, it was not so central to the Tribunal's decision as to tarnish the whole process.’

   9 His Honour concluded that the Tribunal had not contravened the rules of natural justice nor the requirements of s 424A of the Migration Act 1958 (Cth) (“the Act”), in failing to inform the appellant about certain adverse information and give him an opportunity to comment upon it. The reasoning is expressed as follows, at [35]-[39];

   ‘35. It was submitted that there were two instances where the Tribunal had failed to afford the applicant natural justice and had breached the requirements of s.424A of the Migration Act 1958 (Cth). That section requires the Tribunal to inform the applicant of certain types of information and give the applicant the opportunity to comment.

   36.       The Tribunal said that it considered that the applicant had fabricated the claim that, when the police visited his parents-in-law house in May 1998, they stated that they had evidence linking him to the LTTE. At another point, the Tribunal said that it considered that the applicant was being evasive on the question of whether the police would have been able to continue following up their interest in him after he left Sri Lanka because he had no contact with his own family and his wife's family had left Sri Lanka. The Tribunal said this was so because the applicant wife informed the Tribunal that they had not left Sri Lanka until September 2000 and she was not aware of the police making any further inquiries about the applicant's whereabouts after May 1998.

   37.      The breach of procedure which the applicant alleged, was that the Tribunal had not put either of these matters to the applicant and so the applicant had not been given the opportunity to comment on them. In Abebe v The Commonwealth; Re Minister for Immigration and Multicultural affairs [1999] HCA 14, Gummow and Hayne JJ said at [187]:

   The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

   38.      The applicant and his adviser must have been aware that the Tribunal might not accept some or all of the applicant's evidence. As their Honours said, it was for the applicant to put forward his case. It was not the Tribunal's role to contradict that case but to decide, including whether it accepted evidence given by the applicant. There has been no breach of procedural fairness.

   39.      Information which was said to attract the application of s.424A was that the wife informed the Tribunal that she had not left Sri Lanka until September 2000 and she was not aware of the police making any further inquiries about the applicant's whereabouts after May 1998. This is not the sort of information to which s.424A applies.’

   Appellant’s submissions

   10 The appellant’s case was contained in his notice of appeal dated 4 January 2005 which recited the grounds of appeal summarised at [3] above.

   Respondent’s submissions

   The Tribunal’s failure to give proper consideration to the claim that there was a real chance of persecution if the appellant and his family returned to Sri Lanka

   11          In relation to the appellant’s first ground of appeal that the Tribunal did not give proper consideration to the appellant’s claim of a real chance of persecution if he and his family returned to Sri Lanka, Mr Gilbert of Counsel for the respondent submitted that the Tribunal had referred early in its decision to the applicable law and that its reasons do not disclose any misstatement of those relevant principles or of the appellant’s claim.

   12          In the respondent’s submission, the Tribunal had given the appellant’s claims full and detailed consideration.  Reference was made to pp 4 to 13 of the Tribunal’s decision where it set out the claims each of which was said to have been addressed by the Tribunal.  The respondent further submitted that the Tribunal’s reasoning process was clear and well-articulated and, significantly, had involved the acceptance of the majority of the appellant’s claims.  Adverse findings had been made as to the appellant’s credit on two limited aspects which, to the extent that they had influenced the Tribunal’s ultimate decision, had been clearly open to it.  Reference was made in support of this submission to Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

   13          The respondent further submitted that even if there had been a failure to give “proper consideration” to the question, it did not amount to jurisdictional error.  SDAV v Minister for Immigration and Multicultural Affairs (2003) 199 ALR 43 was said to be authority for the proposition that failure to give proper consideration to a claim is not to be equated to a failure to deal with a claim which can constitute jurisdictional error.

   The Tribunal’s failure to consider how the police force in Sri Lanka might act given the information provided: the lack of logic argument

   14          Counsel for the respondent noted that, at [31] of his reasons, Phipps FM had referred to the judgment of a Full Court of this Court in NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 as authority for the proposition that want of logic does not amount to jurisdictional error. It was frankly acknowledged that two High Court judgments published after the decision in NACB cast some doubt on this proposition; see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] and [9] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38] per Gummow and Hayne JJ with Gleeson CJ agreeing at [1]. Reference was also made to NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [66].

   15          However, the respondent maintained that, regardless of the effect of these later authorities, this part of the Tribunal’s decision is not infected by jurisdictional error;  it always remains necessary to identify a particular principle or ground of review rather than simply assert illogicality because such an assertion is often no more than an expression of an applicant’s disagreement with a decision.

   16          In the present case, it was submitted on behalf of the respondent, the Tribunal had considered the appellant’s claims in light of the accepted police interest in the appellant and it was a matter of fact for the Tribunal to determine what flowed from that interest and the subsequent lack of interest which the Tribunal also imputed to the police.  The Tribunal’s reasoning in this regard was said to be entirely transparent and to betray no lack of logic.

   The Tribunal’s failure to ask ‘what if I am wrong?’

1. In the respondent’s submission the so-called “what if I am wrong?” test only arises when the Tribunal makes findings as to primary facts that are adverse to an applicant.  If such findings are attended by doubt, uncertainty or equivocation, so the submission proceeded, the Tribunal may be required to allow for the possibility that one or more of the findings are wrong when it considers the ultimate question of whether the applicant has a well-founded fear of persecution in the reasonably foreseeable future;  see the observations of Sackville J, with whom North J agreed, in Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 at [60] and [62]-[63]. In the present case, according to the respondent, there were very few adverse findings and such as there were had not been attended by doubt, uncertainty or equivocation.

   The Tribunal took into account an irrelevant consideration – that the appellant is a Muslim

2. Mr Gilbert submitted that a critical question for the Tribunal was whether the Sri Lankan police would perceive the appellant as a supporter of the LTTE.  The likelihood of such a perception was the foundation of the appellant’s claim that the authorities would impute to him a particular political opinion – that of an LTTE sympathiser.  Given that the appellant was a Muslim and his associates had been Tamils, it was inevitable, the respondent submitted, that the Tribunal would consider country information about the relationship between these two groups and, in particular, whether Muslims were generally perceived as supporters of the LTTE;  a similar consideration would have been appropriate had the appellant been of Sinhalese ethnicity.  In the respondent’s submission, the tenor of the country information referred to by the Tribunal was that support for the LTTE among Muslims was so rare as to make it unlikely that the police would impute to the appellant collaboration or sympathy with the LTTE.  Accordingly, it was submitted that Phipps FM had been correct to hold that the appellant’s Muslim faith was not irrelevant to the Tribunal’s determination of the application before it.

   The Tribunal’s failure to put to the appellant that he had fabricated his claim that police had visited the house of his parents-in-law

3. In written submissions, the respondent argued that the question of whether a claim had been fabricated was for the Tribunal and reflections on that question were part of the thought processes of the decision-maker and there was no obligation on the Tribunal to put them to the appellant;  see the observations by a Full Court of this Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 cited with approval by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 219.

4. However, at the hearing, Mr Gilbert, contended that the Tribunal had, in fact, accepted that appellant had not fabricated the claim that police had visited the house of his parents-in law.  He referred to a passage of the Tribunal’s decision under the heading “Findings and Reasons” where the Tribunal stated;

   ‘The Tribunal accepts that the security forces came to the applicant’s parents-in-law’s house on 7 and 11 May 1998 and asked about his whereabouts’

5. What the Tribunal had not accepted, according to Mr Gilbert, was the appellant’s evidence as to the content of the conversation between the police and the appellant’s parents-in-law.  At p 19 of the Tribunal’s decision, it was recited;

   ‘As the Tribunal noted to the applicant at the hearing, if the police did claim when they visited his parents-in-law’s house on 11 May 1998 that they had evidence linking him to the LTTE, the police were not being truthful and were simply trying to frighten his parents-in-law.  However, the Tribunal is of the view that the applicant fabricated the claim that the police stated that they have evidence linking him to the LTTE.’

   Resolution of Issues

6. I have carefully examined the reasons for decision of the Tribunal and have been unable to discern any jurisdictional error in its application of the “real chance” test.  As revealed by [23] of his Honour’s judgment, (see [5] above), the learned Federal Magistrate properly evaluated the Tribunal’s decision and correctly concluded that no jurisdictional error had been established..

7. Nor do I consider that the learned Federal Magistrate erred in holding that the Tribunal did not commit jurisdictional error in the reasoning which it applied in reaching a conclusion about the level of interest which the Sri Lankan police force may have had in the appellant.  That conclusion was arrived at after a consideration of the evidence as a whole and was open to the Tribunal on that evidence.

8. Moreover, as the learned Federal Magistrate held, the Tribunal was not obliged to ask itself “what if I am wrong?” in circumstances where the Tribunal had accepted most of the appellant’s assertions.  The Tribunal’s findings of fact led to its ultimate conclusion that the appellant would not face a real chance of persecution were he to return to Sri Lanka in the future.  There has been no error in the Tribunal’s approach.  The Tribunal’s rejection of some of the appellant’s claims was part of its reasoning process and its resolution of factual issues on the way to reaching its ultimate conclusion has not been attended by doubt, uncertainty or equivocation.  The Tribunal was therefore not required to consider the possibility that one or more of its intermediate findings of fact may have been wrong. 

9. I also consider that his Honour was correct in regarding the appellant’s Muslim faith as not irrelevant to the Tribunal’s determination of the application before it.

10. Finally, in relation to the appellant’s claim that the Tribunal failed to put to him that he had fabricated his claim, I observe, parenthetically, that the Tribunal did, in fact, accept that the appellant had not fabricated the claim that police had visited the house of his parents-in law.  Although the Tribunal did not accept the appellant’s evidence as to the content of the conversation between the police and the appellant’s parents-in-law, it was not obliged to put to the appellant that it regarded this aspect of his evidence as lacking credibility.  In the recent case of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, the High Court dealt primarily with the application of s 424A of the Act which requires the Tribunal to give to an applicant particulars in writing of any information that it considers would be the reason, or part of the reason, for affirming the decision under review, regardless of whether procedural fairness has been accorded. In that case, the question of whether the Tribunal is obliged to remind an applicant of information which he or she has provided did not arise. However, McHugh J said, at [50], that the statutory obligation does not apply to information given by the applicant, regardless of when that occurred; it applies only to information received from sources other than the applicant. On the other hand, in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27, a Full Court of this Court held that s 424A obliges the Tribunal to put to an applicant information of the relevant kind if it had been provided by the applicant antecedently to the application to the Tribunal, as, for example, in an interview by Departmental officers.

11. It is unnecessary to attempt in the present case to reconcile the observations of McHugh J in SAAP with those of the Full Court in Al-Shamry because, on any view, the information about the conversation between the police and the appellant’s parents-in-law was given as part of the appellant’s evidence to the Tribunal.  The Tribunal’s evaluation of that evidence and rejection of the assertion that the police had told the parents-in-law that they (the police) had evidence linking the appellant to the LTTE was simply part of the Tribunal’s fact-finding process.  It was not obliged to put to the appellant impressions formed or tentative conclusions reached in the course of that process.

    Conclusion

12. For the reasons which I have explained, the appellant has not established a contravention of s 424A of the Act or any jurisdictional error by the Tribunal. It follows that the learned Federal Magistrate was correct to dismiss the application at first instance. The appeal must be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             22 March 2006

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr G Gilbert
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 July 2005
Date of Judgment:	22 March 2006