MZWKU v Minister for Immigration - [2006] FMCA 255

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWKU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 255

MIGRATION – Protection visa – whether jurisdictional error – failure to take into account relevant material - whether irrelevant material taken into account – whether obligation of Tribunal to obtain translation of document – credibility findings determinative – not appropriate for Court to receive fresh evidence.

NAQV v Minister for Immigration [2004] FMCA 535
Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Ozberk and Others v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 322
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666
Applicant VEAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1545
Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381

Applicant:

MZWKU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 936 of 2004

Judgment of:

McInnis FM

Hearing date:

15 April 2005

Date of Last Submission:

2 May 2005

Delivered at:

Melbourne

Delivered on:

24 February 2006

REPRESENTATION

Pro Bono Counsel for the Applicant:

Ms N. Karapanagiotidis

Counsel for the Respondents:

Ms S.A. Burchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application as further amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $7,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 936 of 2004

MZWKU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant relies upon an amended application filed 17 September 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 April 2004. In the decision the Tribunal affirmed a decision of a delegate refusing to grant to the Applicant a protection visa.
The Applicant was born in 1952 and is a male citizen of Sri Lanka. He arrived in Australia on 1 July 2000, travelling on a subclass 676 tourist (short stay) visa. On 31 July 2000 he lodged an application for a subclass 866 visa with the then Department of Immigration and Multicultural Affairs. On 5 September 2000 a delegate of the First Respondent refused to grant a protection visa to the Applicant, who then immediately applied to the Tribunal to review the delegate's decision.
A different Tribunal subsequently affirmed the delegate's decision on 25 March 2002 (“the first decision”). The Applicant sought review of the first decision and by consent it was set aside on 18 December 2003.
Upon the matter being reheard by a differently constituted Tribunal, the decision was made which is now the subject of this application.

Background

In his statement in support of the application for a protection visa, the Applicant claimed that from 1977 he was employed as a Parliamentary Services Assistant. From 1985 until he departed Sri Lanka for Australia he worked as a Photographer for the Parliamentary Speaker of the Sri Lankan Parliament. He claimed that in the course of his employment he undertook official photography work whenever foreign dignitaries visited the Parliament. He was issued with an official security pass which permitted him to move around in all parts of the Parliamentary Complex and to be present during important sessions of Parliament.
He further claimed that during his period of employment in Parliament he undertook a first aid course organised by the Red Cross and then states the following:
“During this period of my employment in Parliament, I was offered to do a first aid course organised by the Red Cross in order to participate in emergency treatment for people in urgent need of first aid within the Parliamentary complex. I was called upon on several occasions to assist people when they are in need of an urgent first aid attention. There was a bomb blast in Parliament during which I gave first aid assistance to the injured people along with others who were qualified to provide first aid.
It was unfortunate that after six months of the bomb blast incident I was taken into custody by the officials of the Criminal Investigation Department of the Police Force. I was suspected for reasons not known to me and this made me to be in the Welisara Detention Camp for a period of seven months. At that time my wife was pregnant and I also had a scholarship to go to Norway. All this got spoilt and I missed the opportunity to go abroad.”
Upon his release the Applicant claimed to have resumed work as the official photographer to the speaker of the House of Representatives. He claimed that after resuming his duties at Parliament House he received anonymous threatening telephone calls. He stated that he lived "with a lot of fear" and then further states:
“I also used to get calls offering me large sums of money if I am prepared to provide the Security Information relating to the areas of Parliament which the group required for subversive actions.
I had been a sincere government servant for the past 23 years and I did not want to forgo my future benefits and did not also want to betray my employer. My wife and other family members were very scared and worried about my plight. I was also confused, not knowing what to do. A friend of mine took me to a person known to him who made all travel arrangements on my behalf.
In desperation and in order to save my life I took this step leaving my wife and four children. My situation in Sri Lanka was such that although under normal circumstances I would not leave my young wife and four children. I nevertheless did this in fear of the group of people in Sri Lanka who for political and other reasons would do anything to get information from vulnerable people like me.”
The Applicant relied further upon a statutory declaration declared on 24 March 2004 and filed with the Tribunal. He restated his claims but further stated that after he resumed work with Parliament he was never promoted and not credited for some of his photographs. He claimed that the threatening phone calls were made either by the Liberation Tamil Tigers of Eelam (“the LTTE”) or the United National Party (“the UNP”) authorities. In his declaration he said that his telephone operator friend had received similar phone calls prior to being kidnapped.
In his statutory declaration the Applicant states:
“44. In that political climate, it is likely that I will again be approached and threatened by rebel groups to provide inside information about the Parliament and MPs. Therefore, I have a genuine fear on two separate but interrelated grounds: Firstly, the UNP government is in opposition to the JVP, and this opposition has been entrenched because the UNP is the ruling party and is likely to continue being the ruling party in Sri Lanka. The UNP will most probably target all those people it suspects of having any involvement in the JVP.
45. I am suspected of not only supporting the JVP, but of actually committing an act of terrorism. Although I was released from detention because the UNP could not gather sufficient evidence, my claimed involvement in the bombing and my detention records still remain. The government’s suspicion would only be heightened by the fact that I left the country for four years seeking asylum on political grounds.”
It is relevant to note that in a statement in support of his application with attachments presented to the first Tribunal and dated 11 March 2002, the Applicant restated the original claims and attached a number of untranslated letters in the Sinhalese language which he claimed were letters he and his wife wrote to the authorities when he was in detention as well as responses received to these letters. He claimed that he would provide translations to the letters in due course. It is not in dispute that the Applicant did not provide translations and it is not noted that in his further statement dated 11 March 2002 the following paragraph appears:
“May I submit some of the letters that my wife and I wrote to the authorities when I was in detention and the replies received from them at the Interview as I propose to get them translated by someone who is conversant in the Sinhala and English languages. Due to financial difficulties I could not get these translated by a accredited Sinhalese translator.” [sic].
It is noted that at the first Tribunal hearing the Applicant apparently provided that Tribunal with newspaper accounts of tension and human rights abuses in Sri Lanka and referred to articles about harassment of journalists.
The second Tribunal received submissions from the Applicant's advisers dated 23 March 2004 (Court Book page 47) which included background and submissions comprising 21 pages, though with an introduction as follows:
“We act for the above applicant on a pro-bono basis. Due to the limited resources of our centre as a registered charity with no government funding we are limited in our ability to attend RRT hearings and will not be able to attend the RRT hearing on Friday, the applicant, however will be present. We will be forwarding tomorrow a supplementary statutory declaration from the applicant to the RRT.”
In fact the Applicant attended the hearing unrepresented and as foreshadowed a further statutory declaration, referred to earlier and dated 24 March 2004, was forwarded to the Tribunal.

The Tribunal decision

It is noted that in reaching its decision the Tribunal had the benefit of the material referred to earlier in this judgment together with the oral evidence of the Applicant, then assisted by an interpreter, though the Applicant's adviser was not present, no doubt for the reasons given by the adviser, though somewhat curiously the Tribunal only refers to the Applicant, stating that the adviser was "too busy to attend". In any event, nothing turns on that as the Tribunal then proceeded to make its findings, which included the following:
·It accepted the Applicant was a national of Sri Lanka.
·It found that at the time the Applicant claims to have been detained by police, accused of being in the JVP and accused of being involved of the bombing of the Parliamentary Buildings, the Sri Lankan Government was engaged in a systematic campaign to crackdown and eliminate the JVP.
·If the Applicant had ever been suspected of being involved in the bombing of the Parliament he would "definitely not have been released without charge by the police and it is possible that he would have been eliminated at the time".
·Given the strong campaign mounted by the Sri Lankan Government against the JVP at the time, it is inconceivable that any suspected member of the JVP, especially a member who had been suspected of being involved in bombing the Parliamentary Building, would have been employed at any level within the Sri Lankan public service, let alone be allowed to hold a position within the Parliament.
·It found that the Applicant was never a member of the JVP, that he was never suspected of being involved in the bombing of the Parliament in 1987, that he was never arrested, detained, tortured, threatened with death or otherwise harmed by the police in relation to the alleged incident.
·That the Applicant was never suspected of being involved in the JVP in any way and that he was never imputed with the political belief that he was a member or supporter of the JVP or any other political party.
·That the Applicant's wife was never harassed by the authorities in any way as part of this alleged suspicion and detention and that the Applicant did not have a break of 10 months in his employment at the Parliament of Sri Lanka in the 1987-1988 period.
Having regard to the grounds relied upon in this application, it is also important to note the following extract from the Tribunal's decision in its findings:
“The applicant has tendered untranslated documents in Sinhalese purporting to be correspondence that he and his wife had engaged in with the Sri Lankan authorities during the period of his alleged detention in 1987/1988. Despite being given the opportunity to do so the applicant did not provide any translation of these documents. However the problems in the applicant's evidence that make it inherently impossible that he was ever suspected of any involvement in the bombing of the Parliament or that he was ever detained or otherwise harmed by the authorities in this period far outweigh the documents as presented by the applicant. I therefore find that these documents do not attest to the actual facts as claimed by the applicant.”
In its findings the Tribunal then analysed the various claims of the Applicant in relation to political activities, claimed threats in telephone calls and discrimination based upon a failure to receive a promotion in his 23 years of employment in the Parliament. After considering those matters the following key findings were made:
·The Tribunal found the Applicant's evidence in relation to the Applicant's claimed attendance at political meetings to be not credible and that the Applicant was not a witness of truth. The Tribunal therefore found the Applicant never attended any political meetings as alleged and that he was never threatened by members of any political party either for attending such meetings or to warn him not to attend such meetings.
·The Tribunal found that the explanation provided by the Applicant concerning threatening telephone calls was not satisfactory and appeared to have been created on the spot by the Applicant in an attempt to hide contradictions in his evidence.
·The Tribunal found the Applicant's evidence in relation to the telephone calls and the disappearance of the person who he claimed was his friend to be lacking in any credibility and further found that in relation to that part of the evidence of the Applicant, the Applicant was not a witness of truth.
·The Tribunal found the Applicant never received any of the claimed telephone calls at any time and was not targeted by any group to provide them with information about the Parliament as claimed and that he did not know the Parliament telephone operator, who disappeared in 2000, in any way that could be described as being his best mate.
·The Tribunal found the disappearance of this person (the telephone operator) is not connected in any way with the claims of the Applicant.
·In relation to submissions that the Applicant had received death threats from unnamed persons who he believed were associated to senior politicians whilst on the bus on his way to work, the Tribunal referred to the Applicant's evidence as being general rather than specific, highly ambiguous and confused, giving the impression that he was making a series of comments simply to justify what the adviser had put in his submission.
·It found that the Applicant's evidence in this regard was not credible and that the Applicant was not a witness of truth, and therefore found the Applicant had never received any death threats of any kind at any time in Sri Lanka.
·In relation to the failure to obtain promotion, the Tribunal noted the Applicant had maintained his responsible position for 23 years and received some recognition for his work as a photographer and further found that even if there was an element of discrimination in him not receiving an official promotion such discrimination does not constitute serious harm that would amount to persecution for the purposes of the convention.
Based on its significant adverse finding, the Tribunal ultimately concluded that if the Applicant were to return to Sri Lanka in the reasonably foreseeable future, he would not face a real chance of persecution because of his alleged support of the JVP or any imputed political opinion that he was involved in the JVP in any way or any other convention-related reason.
Having found the Applicant never received threatening phone calls in the past in Sri Lanka and was not targeted by rebel groups to provide information about the Parliamentary precinct in Sri Lanka, the Tribunal further found that if the Applicant were to return to Sri Lanka he would not face a real chance of persecution because of any targeting by any group. It further found that he would not face a real chance of persecution because of any unstable political situation prevailing in Sri Lanka.

The further amended application

Prior to the hearing the Applicant had sought to rely upon an amended application filed 17 November 2004. During the course of submissions, however, it became evident that the amended application did not necessarily address some of the issues precisely raised for and on behalf of the Applicant, and accordingly the Applicant was granted leave to file a "further amended application" dated 19 April 2005. That document then generated further submissions filed for and on behalf of the First Respondent.
It is appropriate to note that the Applicant effectively raised five grounds of claim in the further amended application as follows:
“1. The Tribunal failed to take into account relevant material.
Particulars
(a)The applicant submitted material in support of his claim, namely untranslated correspondence between his wife, himself and the authorities at the time of his claimed detention in 1987.
(b)The Tribunal was under a duty to consider the material, as it was relevant and capable of corroborating and advancing the applicant’s claims.
(c)The Tribunal purported to take into account the material however, in effect, it failed to do so.
(d)In their untranslated form, the correspondence necessarily could not have been properly considered, or taken into account, by the Tribunal.
2. Further, or in the alternative to paragraph 4, the Tribunal took into account an irrelevant consideration.
Particulars
(a)In their untranslated form, the correspondence had no probative or evidentiary value or relevance.
(b)The untranslated correspondence was unable to support, or provide a foundation for, a positive finding by the Tribunal that the material did “not attest to the actual facts as claimed by the applicant”.
(c)The positive finding of the Tribunal was adverse to the applicant and worked to further undermine his particular claim.
(d)The positive finding of the Tribunal was an irrelevant consideration, unsupported by the material before it.
3. Further, or in the alternative to paragraphs 4 and 5, the Tribunal denied the applicant natural justice/procedural fairness.
Particulars
(a)The Tribunal denied the applicant procedural fairness in it’s failure to have the untranslated correspondence translated.
(b)In the particular circumstances of this case, the Tribunal was obliged to have the mater translated;-
(i) The Tribunal relied on the correspondence and made a positive finding of fact in respect of the material;
(ii) The correspondence was personal to the applicant;
(iii)The correspondence was not voluminous;
(iv)The applicant had, in broad terms, alerted the Tribunal to the content of the correspondence and it’s relevance to his claim;
(v)The applicant had alerted the Tribunal of his inability to have the correspondence translated;
(vi)The correspondence was tendered to the first Tribunal (2002 hearing) in support of a claim that the first Tribunal accepted. The correspondence was not specifically raised or referred to at the second hearing.
(vii)The applicant was of the belief that the Tribunal would have, or had already, translated the correspondence.
4. The Tribunal failed to speculate as to the possibility of persecution against the applicant.

Particulars
(a)The Tribunal failed to consider the possibility that the applicant had been detained as claimed in 1987.

5. The Tribunal failed to apply a reasonable margin of appreciation to any perceived flaws in the applicant’s testimony and relied upon minor inconsistencies to reject the applicant’s claims.”

It would be clear that Grounds 1, 2 and 3 all relate to the issue of the untranslated correspondence and it is appropriate that I deal with those grounds together. I shall deal with the other grounds separately.

Submissions and reasoning

Grounds 1, 2 and 3

A key finding which emerges from the extract where the Tribunal refers to its findings concerning the Applicant's claim to have been a suspect or otherwise involved in the bombing of Parliament and that he was detained outweighs the documents as presented, includes the specific finding as follows:
“I therefore find that these documents do not attest to the actual facts as claimed by the applicant.”
In support of the grounds that the Tribunal failed to take into account relevant material or took into account irrelevant considerations and/or denied the Applicant natural justice or procedural fairness, criticism was made of the Tribunal's finding in relation to the untranslated correspondence. That criticism is largely set out in the particulars subjoined to Grounds 1, 2 and 3 and does not need to be restated.
The Applicant accepted through counsel that it is incumbent upon him to put his case to the Tribunal, though in this instance it was submitted the Tribunal was obliged to ensure that untranslated correspondence critical to the Applicant's case should be taken into account (see NAQV v Minister for Immigration [2004] FMCA 535). It was submitted the untranslated correspondence was important to the Applicant's case and that the Tribunal did not raise or discuss the documents with the Applicant at the hearing. Reference was made to the first Tribunal hearing and decision where it accepted the applicant was detained for seven months under emergency regulations without ever being told the reason for his detention. (Court book page 152)
It was submitted that in this case the Tribunal had made a positive finding that the untranslated correspondence did not "attest to the actual facts as claimed by the applicant" without knowing or seeking to inform itself of the contents of the correspondence.
It was further submitted that there was some support for the contention that a Tribunal may be under an obligation to obtain a translation of documents in another language and failure to do so may result in jurisdictional error. Reference was made to the decision of the Full Court of the Federal Court in Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 where the Court states the following:
“25 There may be occasions in which the RRT is under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained to the RRT. However, the primary judge was correct when he said, as a general proposition, at [48] that the RRT "is not required to translate material in a foreign language" or "consider large volumes of material whose evidence is not explained". Its failure to do so will not mean that it failed to consider or review an application in accordance with s414(1) of the Act or s54 of the Act, if applicable, when it has otherwise dealt with all material considered by it to be germane to its task of reviewing the decision of the delegate. In the present case the additional material was voluminous (including 19 textbooks in Spanish) and its relevance unexplained.”
Whilst it was conceded in the present case the documents may not be voluminous, the Tribunal should nevertheless have ensured that the documents were translated given the importance of the material to the Applicant's claim and its relevance.
Reliance was placed upon the Applicant and the Applicant's adviser's notification to the Tribunal that due to financial circumstances, the Applicant could not afford to translate the correspondence and nor could he afford to be represented at the hearing.
The First Respondent submitted that any failure to take into a relevant consideration can only be made out if the Tribunal fails to take into account a consideration that it is bound to take into account in making its decision and that that material would include an "essential integer" or claim made by the Applicant's case (see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [78] - [79]).
It was submitted that in this instance a key issue and relevant claim of the Applicant which the Tribunal was obliged to take into account was that the Applicant had been detained for seven months. The Tribunal considered that claim but did not accept it because of the assessment of the Applicant's credibility. Any failure by the Tribunal to then deal with a piece of evidence concerning that issue could not amount to a failure to take into account a relevant consideration or a failure to deal with the claim.
It was submitted specifically that the Tribunal is not bound to refer to every item of material relied upon by the Applicant, nor must the Tribunal give a subset of reasons why it accepted or rejected individual pieces of evidence (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J).
The way in which the Tribunal dealt with the untranslated correspondence does not in the present case, according to the First Respondent's submission, reveal a failure to complete a jurisdictional task. The Tribunal had regard to the untranslated letters but did not give them any weight in the light of the problem with the Applicant's evidence in relation to his claim and his overall lack of credibility. It was entitled to form the view that the untranslated letters do not support the Applicant's claims.
The First Respondent relied upon the decision of Allsop J in VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 at [56] where the Court states the following:
“56 There can be, in some circumstances, a distinction sometimes not easily drawn, between failing to deal with the claims of the applicant, on the one hand, and failing to give what the Court thinks should be appropriate weight or consideration to probative and logically relevant material before the Tribunal. The former may well reveal a failure to complete the jurisdictional task, the latter may not: see generally Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, 422-23 at [76] to [79]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [1] and [42]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40]; Abebe v Commonwealth (1999) 197 CLR 510, 576 at [187]; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [1], [33] to [38] and [68] to [69].”
It was submitted in the present case that there is no error of law if the Tribunal fails to give adequate weight to certain evidence.
If the Court were to find that the untranslated letters could properly be regarded as a relevant consideration, then it was further submitted that the Court should not exercise its discretion to set aside the Tribunal decision as the breach is insignificant as it could not affect the outcome of the Tribunal's decision.
In this case it was submitted the Tribunal made significant findings on the basis of the Applicant's credit and had already separately determined that the Applicant had not been detained for seven months as claimed. It reached that conclusion after analysing a range of information including the material provided by the Applicant together with country information. The untranslated letters, it was submitted, were just a small piece in the overall scheme of the case put before the Tribunal.
In my view, the submissions for and on behalf of the First Respondent are correct. The claim that was clearly before the Tribunal, supported by a range of material perhaps including the untranslated correspondence, nevertheless led the Tribunal to make an assessment of the Applicant who not only gave evidence but otherwise made submissions through his representative and relied upon statements and declarations. It is the process of assessing credibility which in my view, on a proper reading of the Tribunal's decisions, led it to reject this fundamental claim concerning the Applicant's detention.
I do not regard it as relevant that a Tribunal on another occasion made a finding in favour of the Applicant on this issue. The second Tribunal must make its decision independent of any findings made by an earlier Tribunal. The second Tribunal has the opportunity to make an assessment of the Applicant's credit, which in this instance substantially involved an assessment not only of the oral evidence but also consideration of other material provided by the Applicant in support of the claim.
Whilst the untranslated correspondence may have potentially formed a piece of the evidence relevant to the claim of detention, the failure to arrange for its translation does not of itself in this instance, given the material was not voluminous, lead to a conclusion that there has been jurisdictional error.
Although the Tribunal made the unfortunate comment in its findings that "these documents do not attest to the actual facts as claimed by the applicant", I am satisfied that that should properly be interpreted as simply an unfortunate use of language given that the sentence preceding it refers to the issue of weight and that the Tribunal was entitled, specifically in its findings of credibility and what it describes as the "problems in the applicant's evidence", to draw the conclusion that it was "inherently impossible" that the Applicant was a suspect or involved in the bombing of Parliament or ever detained or harmed by authorities.
It is obvious, and of some concern, that whilst the correspondence remained untranslated, it could not form any or any proper basis for a positive finding that the documents would not "attest to the actual facts" in support of the Applicant's claim.
However, I accept that that unfortunate use of language does not detract from what I regard as substantial adverse findings of credibility reasonably open to the Tribunal on the material before it based upon specific findings and an analysis of the available evidence including country information.
I am satisfied that the findings and the reasoning process of the Tribunal accordingly do not constitute jurisdictional error despite the concerns I had during the hearing in relation to the somewhat illogical conclusion concerning the untranslated correspondence.
Accordingly it follows that Grounds 1, 2 and 3 should fail. I am otherwise satisfied that apart from providing some clarification of the contents of the untranslated documents, it would be inappropriate for this Court to receive fresh evidence in this application.
It is my conclusion that the Tribunal, in the circumstances of this claim, is not bound to make arrangements for translation of the brief documents referred to by the Applicant. In any event, for this Court to receive fresh evidence would effectively result in the Applicant being able to then proceed to demonstrate the Tribunal made an error in its treatment of the claim before it, which I do not regard as permissible (see Ozberk and Others v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 322).

Ground 4

The Applicant in support of this ground referred to the adverse findings by the Tribunal in relation to the Applicant's claim of being suspected of involvement in the Parliament bombing and noted that the finding relied in part upon country information. It was suggested that the Tribunal was required to ask itself, "What if I am wrong?" in accordance with the test laid down in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It was submitted the Tribunal was required to take into account the chance that the Applicant was detained in 1987 when determining whether he faced a well-founded fear of future persecution.
The First Respondent submitted that a proper reading of the Tribunal's reasons would lead to a conclusion that it had no real doubt that the Applicant had not been detained and was not suspected of involvement in the Parliament bombing. It was submitted the Tribunal is only required to consider the "What if I am wrong?" test where there is a doubt expressed in the Tribunal's critical finding adverse to the Applicant (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 where Sackville J at 241 (with whom North J agreed) states the following:
“[67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”
It was submitted by the First Respondent that the Tribunal in its reasons did not suggest that it had any real doubt as to its findings of fact and accordingly there is no basis upon which it should embark upon the "What if I am wrong?" test.
In my view, the First Respondent's submissions are correct. As set out earlier in this judgment in both the summary of the Tribunal's adverse findings and other extracts, it is clear to me that the Tribunal made quite significant adverse credibility findings on critical issues raised by the Applicant in support of his claim. Specifically, the claimed suspicion of involvement in the Parliamentary bombing together with the detention were analysed and, largely as a result of the adverse credibility findings, rejected by the Tribunal. I can see nothing in the Tribunal's reasoning which would suggest that at any time it had any doubt in making its adverse findings in relation to these claims made by the Applicant. Accordingly, I am satisfied as a matter of law that the "What if I am wrong?" test does not apply. I should add that in any event I am satisfied that the Tribunal properly addressed the question it was required to address in dealing with the Applicant’s claims. It should further be noted that the “What if I am wrong” test argument does not now appear to be the test which applies. I apply and accept the reasoning of the Federal Court in Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [18] – [28] which I note was referred to by Selway J in Applicant VEAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1545 where His Honour states the following at [15]:-
“Finally, mention also needs to be made of the argument by the appellant that the Tribunal failed to apply the ‘what if I’m wrong’ test. This argument is put from time to time. At one period it enjoyed some success but not now. I dealt with this argument at some length in Applicant A233 of 2003 v Refugee Review Tribuna [2004] FCA 666 at [18]-[28]. As I there pointed at, the only current significance of this argument is that it points attention to the question of whether the Tribunal has addressed the real issue before it; that is, whether or not the Tribunal is satisfied that the applicant has a well founded fear of persecution for a Convention reason if he is returned to his country of residence.”
Accordingly for the reasons given this ground should fail.

Ground 5

In support of this ground a detailed analysis was undertaken of the evidence of the Applicant and the adverse credibility finding of the Tribunal.
Reference was specifically made to the Applicant's claim to have been discriminated against in his employment and the finding by the Tribunal that even if there had been an element of discrimination, then that was not sufficient to constitute persecution for the purpose of the convention. It was submitted that a failure to consider the Applicant's claim of discrimination in employment had occurred. It was a significant part of the Applicant's claim, and by failing to consider it, it was submitted that the Tribunal failed to therefore consider a relevant matter and fallen into jurisdictional error.
The First Respondent submitted that in this instance the Applicant effectively seeks to challenge the finding about credibility, which is impermissible (see Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 at 383-384).
In my view, the submissions made for and on behalf of the First Respondent are correct in relation to this ground. It is clear from the summary of the Tribunal's findings set out earlier in this judgment together with relevant extracts that it made strong and significant adverse credibility findings reasonably open to it on the evidence. Those findings, in my view, as a matter of law cannot be challenged by simply asserting a failure to apply what is described as a reasonable margin of appreciation to any perceived flaws in the Applicant's testimony or reliance upon what the Applicant describes as "minor inconsistencies" used to reject the Applicant's claims.
The inconsistencies are a matter for the Tribunal to assess in reaching its decision concerning credibility, and the weight it places on those inconsistencies when taken together or separately is a matter entirely for the Tribunal in its fact-finding mission. In this case I cannot see any error in the approach of the Tribunal in its findings concerning the Applicant's credibility, and accordingly this ground should fail.

Conclusion

It follows, therefore, that the application as further amended should be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 24 February 2006