Rajalingam, Aravinthan v The Minister for Immigration & Multicultural Affairs

[1998] FCA 1140

ARAVINTHAN RAJALINGAM v. THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. VG 306 of 1997
FED No. 1140/98
Number of pages - 17

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

RYAN J

MELBOURNE, 16 December 1997 (hearing), 14 September 1998 (decision)

#DATE 14:9:1998

Counsel for the Applicant: Mr R Appudurai

Solicitors for the Applicant: Wisewoulds

Counsel for the Respondent: Mr W Moseley

Solicitors for the Respondent: Australian Government Solicitor

THE COURT ORDERS:

1. That the decision of the Refugee Review Tribunal of 16 June 1997 be set aside.

2. That the matter to which the decision relates be referred to the member of the Tribunal who made the decision for further consideration according to law.

3. That liberty be reserved to either party to apply on not less than seven days' notice in writing to the other party.

4. That the respondent pay the applicant's taxed costs of the application, including any reserved costs.

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

RYAN J

The applicant is a Sri Lankan citizen who arrived in Australia on 25 March 1997. He had no entry visa and, shortly after his arrival, applied to the Department of Immigration and Multicultural Affairs ("the Department") for a protection visa. That application was refused, and, on 26 September 1997, he applied to the Refugee Review Tribunal ("the Tribunal") for a review of that refusal. In support of his case to the Tribunal, he claimed that he was a Tamil and had associations with members of the Liberation Tigers of Tamil Eelam ("LTTE"). He further claimed to have been born in the same town on the Jaffna Peninsula as the leader of the LTTE. It appears that, in his youth, he had lived about 20 kilometres from Jaffna near a large army base. He claimed that he had been a frequent target for scrutiny and harassment by army personnel. After an attack on that army base in 1990, presumably by Tamil insurgents, he and his family were forced to move from house to house before relocating themselves in Colombo.

The applicant completed his secondary schooling and was admitted to the University of Colombo after passing a second set of examinations in 1995. The applicant's version of events from that time until he arrived in Australia were summarised by the Tribunal in these terms at pp 3-4 of its reasons:

Prior to sitting the exams a second time, he had been picked up during a security sweep around the time of the breakdown of the Peace Accord between the LTTE and the new People's Alliance (PA) government. He was detained for three days and then released after his landlord, a police inspector, intervened on his behalf. This experience of being arrested and questioned lead him to hating the Sri Lankan Security Forces (SLSF) and to start sympathising with the LTTE. Soon afterwards, he met a former school friend - Kopan - whom he believes was a member of the LTTE and who recruited him as a helper of that organisation. The Applicant was introduced to two other men he believes were also members of the LTTE and they collected donations from designated people and on one occasion the Applicant stored a large sum of money for them at his house. In November 1995, the Applicant's uncle passed away. He had been a long-term Member of Parliament for a pro-Tamil party and his son became a known member of an LTTE suicide squad, the Black Tigers. After his uncle's death the police and some members of anti-LTTE paramilitary group severely questioned the Applicant about him and other LTTE members, although he was not detained or mistreated. Nevertheless, he continued to work for the LTTE. In November 1996, the Applicant was detained at his home, taken to the local police station and then transferred to CID headquarters, where he was seriously mistreated. After a few days, Kopan was brought in, having been obviously beaten, and he identified the Applicant. The latter then admitted he had raised money for the LTTE and was detained for a further two months, during which he was mistreated. He was only released when his landlord - the police inspector - paid bribes to four people. Even then, he was required to report to the police station every week. He was advised to leave the country, so he arranged a passage out through an agent. He had already obtained a passport some time in 1994 and was able to leave through the normal channels, although he was accompanied by the police inspector and the agent. The latter accompanied him to Singapore and on to Hong Kong, where he took the Applicant's passport and gave him a boarding pass for a plane to Australia. The Applicant fears that he will be questioned at the airport on his return and his past will be investigated and his links with the LTTE discovered. He believes he will then be detained tortured and killed. While his name was not on an alert list when he left, the fact that he has since breached his reporting conditions will have caused his name to be added to lists of wanted people. In addition, he fears that the policemen who took bribes for his release will harm him to avoid the possibility that he will disclose that they took bribes. In support of his claims, the Applicant's adviser submitted various materials regarding the treatment of Tamils in Sri Lanka and referred to other Tribunal decisions where young Tamil men were found to be refugees.

The Tribunal accepted that, as a condition for the grant of a probation visa, the Minister had to be satisfied that the applicant at the time of the Minister's decision was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees ("the Convention") as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. Protection obligations under the Convention are owed, so far as is relevant, to a person who:

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

The Tribunal then noted that the concept of well-founded fear of persecution required both a subjective fear on the part of the applicant and an objective justification or foundation for that fear giving rise to a "real chance" of persecution on return to his country of nationality. It also recognised that the assessment whether there was such a real chance involved an element of prediction of likely occurrences in the foreseeable future.

After accepting that the applicant is a Tamil who was born on the Jaffna Peninsula and went to Colombo with his family in 1991 to avoid the continuing fighting in his home region and had, in 1995, achieved the rare distinction for a Tamil of admission to the University of Colombo, the Tribunal continued at pp 6-7 of its reasons:

While it is plausible that the Applicant may have been picked up during security sweeps in April 1995 (when the Peace Accord broke down) and in November 1996 (after a massive explosion at a Colombo oil refinery), his story about how those incidents will lead to persecution, in the context of other information, does not really ring true. He claimed that being detained in April 1995, not long before he re-sat his A level exams, resulted in developing an antithesis to the SLSF [Sri Lankan Security Forces] as a consequence of that detention. He had previously claimed he was constantly harassed near his home town, that he was forced to move and live as a refugee for a long period and was then impelled to move to Colombo, where he was in constant fear of being the subject of house to house and street security checks, yet none of this seemed to raise his ire at the SLSF. On the other hand, if the Applicant was the subject of SLSF harassment, he was in possession of a passport which he could have used to escape the country, yet he did not do so. Nor is the Tribunal convinced by his account of meeting up with Kopan, becoming an active supporter of the LTTE and then being identified by Kopan and detained and mistreated for two months. In the meantime, he says he was questioned a year previously about a relative who was a known LTTE suicide bomber yet despite being a close relative of a pro-LTTE politician and his suicide-bomber son, as well as consorting with current members of the LTTE, he was not further harassed nor was he apparently kept under surveillance in a city which is in a constant state of high alert for LTTE operatives. Further, he says that he admitted he was an active supporter of the LTTE after being identified by Kopan but was later released. He said that anything can be done with bribes, although the Tribunal does not accept that he would have been released from prison if he was suspected as an active LTTE supporter who directly associated with members of that group in Colombo. On the other hand, it is implausible that he would bribe officers for his release but still have to report every week, thereby drawing attention to the corrupt officers who had let go a known LTTE financial supporter and associate of active members of that group. At most, the Tribunal accepts that the Applicant was detained for a short period during a security sweep after a terrorist attack and that he was released without suffering serious harm.

The Tribunal then went on to note advice from the Department of Foreign Affairs and Trade ("DFAT") to the effect that Sri Lankan citizens can obtain passports only on presentation of a national birth certificate and national identity card which are checked against a list of those barred by police, courts and other authorities from being issued with passports or allowed to leave the country. Presentation of a passport is required at the point of departure when the same list is utilised so that "it is unlikely that anyone sought by the government would be able to leave". The Tribunal's reasons continued, at the foot of p 7:

The Applicant claims that it was possible to leave because he would not have been put onto an alert list until he breached his reporting conditions. The Tribunal concludes, however, that if he was known to be an active LTTE supporter, it is likely that he would have been included on an alert list and he would not have been able to freely leave. He disclosed that he has a sister in Australia and that he was included on his mother's application for permanent residence in Australia which was rejected in 1995. In the same year, his mother also had a visitor visa application refused. In the circumstances, his chances of obtaining a genuine visa to come to Australia appeared to be very slight and it is understandable that he resorted to an agent to help him arrive here. However, the Tribunal does not accept that he resorted to the agent because he was on the run from the authorities or was in fear of being persecuted by them for the reasons he described. He already had a passport which he used to leave the country and it is apparent that he resorted to the agent to find a way to Australia because he was otherwise unable to get here. In light of other circumstances, the uncanny timing of his claim that he was identified as, and admitted to being, an active LTTE supporter - after his mother's applications were refused and just before his departure - support a conclusion that he has invented or at least exaggerated that aspect of his claim to help reinforce his efforts to be recognised as a refugee.

The Tribunal then summarised its findings by accepting that the applicant had been detained for short periods in security sweeps but rejecting his assertion that he had been detained for a longer period and on account of his association with LTTE members and his activity in collecting money for the LTTE. It also rejected his claim to have been released on reporting conditions and did not accept that he was of any interest to the authorities when he left Sri Lanka. This part of the Tribunal's reasons concluded, at p 8:

If, as he claimed, he had been a known supporter and active assistant of the LTTE, was identified as such by an LTTE member and was the subject of pursuit by anti-LTTE groups who supported the government, it is only a very remote possibility that he would have bee released from prison and been able to leave the country unhindered, using his own passport. To conclude, the Tribunal does not accept that the Applicant has ever been suspected of LTTE support or activities other than being picked up and then released in security sweeps.

Reference was then made to further advice from DFAT dated 15 December 1995 noting an increase in security activities in Colombo after LTTE attacks on oil and gas storage installations and two LTTE suicide bomb attacks. DFAT's advice continued:

These activities have included the establishment of "vigilance committees" (like neighbourhood watches), the introduction of registration requirements for Tamils residing in other people's homes and an increased use of sweep and search patrols and detentions. There is no question that, while these activities are aimed at catching LTTE operatives, they do have an impact upon the lives of innocent people as well. Of the security measures taken by the government, it is the sweep and search (or rounding up) patrols and the resulting detentions which have raised some concern among members of the Tamil community. Most Tamils and human rights observers to whom we have spoken acknowledge that the government's response to the very serious LTTE security threat is understandable. But they claim that such operations can cause hardship to innocent Tamil people. They claim that the round up operations do not discriminate sufficiently between likely suspects and obviously innocent persons and that many innocent people are taken in and detained. However, they also acknowledge that the vast majority of persons are only held for a couple of days and then only so long as it takes for identification and bona fides to be established. We have heard almost no recent allegations of ill treatment while in detention, and this is supported by anecdotal evidence. The overall assessment of local and international human rights observers is that while these operations cause inconvenience, and possibly anxiety or even a degree of humiliation, provided they are properly conducted, they do not amount to harassment.

The same cable from DFAT expressed opinions about the typical profile of persons who would fall under scrutiny by security forces, the use of national identity cards in the conduct of sweeps and the short period of detention under the Prevention of Terrorism Act ("pta") to which most suspects are subjected. As well, DFAT opined that the security services had been made aware that the government would not tolerate the use of torture or unlawful force on Tamils in the name of security. It was acknowledged that there was still potential for excesses by local vigilante committees or private security guards but the cable went on to note:

However, our sources accept that these are cases of individuals exceeding their authority rather than any state-sanctioned systematic discrimination or harassment. The Sri Lankan government has been at pains to emphasise the distinction between the LTTE and the ordinary Tamil members of the community. In several recent public statements, senior government spokespersons, including the president, have urged the Sinhalese community not to harass Tamils. They have also stressed that anyone found trying to instigate communal violence will be prosecuted. Among the other security measures having a direct impact on Tamils in Colombo are the various registration requirements for Tamils who are temporarily resident in Colombo. These requirements are confusing, even to lawyers and police sources. It appears that various police districts may be interpreting the requirements differently. For example, there is a requirement for householders to register any Tamils who are temporarily residing with them. However, it is not clear whether this also applies to Tamil home-owners and long term residents so they must register themselves and their families as well. There was also recently a directive given by the police in one district of Colombo for all boarding houses, or "lodges", hosting Tamils to be closed. When lodge owners inquired as to the source of authority for this directive, they were advised that it was an oral "order" from the ministry of defence. To date, though, none of the lodge owners has taken the matter to court. In conclusion, our assessment, based on our discussions, is that while Tamils may be more affected than non-Tamils by the security measures in Colombo designed to counter the LTTE security threat, this does not amount to officially-sanctioned discrimination or harassment of Tamil people as a group. Tamil people, like anyone else continue to have the protection of the law against unlawful activities by security services. The government's demonstrated willingness to prosecute members of the security services who breach the law is important here, as is the access detained persons and their families have to the government's own human rights task force (HRTF) and to the international committee of the red cross (ICRC).

In the light of that "country information" the Tribunal concluded:

While there is no doubt that some Tamils are subjected to severe abuse of their human rights, particularly young men from the north and east with little explanation for their presence in the capital city, those who live in Colombo with legitimate reason and have family contacts or friends who can assist them, do not face a real chance of persecution provided that they are not associated with the LTTE. It may be the case that the Applicant could not safely return to the Jaffna peninsula, but his family lives in Colombo, his residence is registered there, he has completed his secondary education and he has been accepted into the University of Colombo. His landlord is an inspector of police, is close enough to the Applicant to be called "uncle" and has previously assisted the Applicant. The Applicant has previously been caught up in two security sweeps during his six or seven years in Colombo and has been released relatively quickly without suffering serious harm. He had the opportunity to flee after the first incident in April 1995 but chose not to utilise his passport, indicating that he did not fear persecution. He is not affiliated with the LTTE nor is he suspected of such affiliation and if he has the misfortune of being caught up in any future security sweeps, there is no more than a remote chance that he will be persecuted. On the basis of the acceptable evidence, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution because there is not a real chance being persecuted for a Convention reason should he return to Sri Lanka. Therefore he is not a person to whom Australia has protection obligations under the Convention and Protocol and is not entitled to a protection visa.

It was first submitted on behalf of the applicant that the Tribunal had failed to determine his application in accordance with substantial justice and the merits of the case which was held by Davies and Burchett JJ in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 to be an error of law. In particular, it was urged that the Tribunal had failed to follow the course which Finkelstein J indicated to be appropriate in Epeabaka v Minister for Immigration and Multicultural Affairs (VG 39 of 1997, unreported, 10 December 1997). In that case it was observed at p 4, after noting that the Privy Council had held in Mahon v Air New Zealand Ltd [1984] AC 808 that one rule governing administrative decision-making was that the decision must be based "upon evidence that has some probative value" and that "what is required is that the decision to make a finding must be based on some material that tends logically to show the existence of facts consistent with the finding and that the reasons supportive of the finding, if it be disclosed, is not logically self-contradictory." From that premise that a Tribunal is required to base its findings on probative evidence, Finkelstein J considered that it must follow that the Tribunal is also under an obligation rationally to consider that evidence.

The refusal of the Tribunal to accept the applicant's assertions that he had been detained because of his LTTE associations and on account of his collecting money for the LTTE and that he had been released subject to reporting conditions has been criticised by Mr Appudurai of Counsel for the applicant as not based on any perceived untruthful demeanour of the applicant or any inconsistency in his story. The only ground advanced as damaging the applicant's credibility was the coincidence in time between his being identified as, and admitting that he was, an LTTE supporter, the failure of his mother's application for a visa and his own departure for Australia. That coincidence, it was said, was never put to the applicant. I was taken to p 29 of the transcript of the hearing before the Tribunal where this exchange occurred between Mr Vrachnas constituting the Tribunal and the applicant through an interpreter:

MR VRACHNAS: Did you ever apply to come and visit your sister? INTERPRETER: My mother had made an application so my name must have been included in that. MR VRACHNAS: When was that? INTERPRETER: Maybe in 1995 sir, I cannot tell you the month or the date. MR VRACHNAS: Was that rejected? INTERPRETER: Yes sir. MR VRACHNAS: Was that just after you got your passport? INTERPRETER: It was after my obtaining the passport. MR VRACHNAS: Because your father visited here before? INTERPRETER: Yes he had come here. MR VRACHNAS: When was the last time he came? INTERPRETER: It was in 1990 sir. MR VRACHNAS: And your brother? INTERPRETER: No he has not come. MR VRACHNAS: So, you think you were on your mother's application to visit? INTERPRETER: It was in my mother's application that my name was included. MR VRACHNAS: See I can get hold of the records. If she made an application in 1995 I can get hold of the records. Is that her name? Subramanian Susheela.

After an intervention by Mr Suppiah, the migration agent for the applicant, this exchange is recorded at p 31:

MR VRACHNAS: You didn't do this application? MR SUPPIAH: No. I don't know at the time but I came to know because his sister told me. MR VRACHNAS: Can I just ask one other thing, because all I want to do is cross check facts, because when people arrive without identification I need to cross check to make sure, I need to make sure I identify you properly. So just for me it's a double check, I'm not saying that I don't believe you but I like to double check. What's your sister's full name? INTERPRETER: Thamayanthi Rajkumar. MR VRACHNAS: Do you know the name she made her spouse application in? INTERPRETER: When she came to Australia she came as Thamayanthi Rajalingam. MR VRACHNAS: Yes, you better, could you write it please. Is this her birth date? 31 July 1968? Sorry.

Those passages were indicated as illustrating that the applicant had been given no opportunity to deny that the refusal of his mother's visa application had prompted him to invent a closer connection with the LTTE than he actually had and, on the basis of that invention, had claimed to have attracted a greater degree of attention from the security forces and authorities than they had, in fact, accorded him. Indeed, Counsel pointed out, the applicant himself had volunteered the fact that his mother had been refused a visa.

The Tribunal's approach to this issue was contrasted with its careful testing of other claims made by the applicant, including the assertion that he had been detained for a lengthy period in 1996. That is recorded at pp 25-26 of the transcript of the hearing before the Tribunal in these terms:

MR VRACHNAS: How did you arrange to get out of the jail? INTERPRETER: Until I got out of jail, I didn't know why they were releasing me, or even after coming out that my mother told me that she applied the services of my uncle Chellappah to bribe four officers of the CID. MR VRACHNAS: So why didn't they do it earlier? INTERPRETER: In the beginning they couldn't do such a thing sir, or they would have agreed to release me, but later they were able to somehow get around the police officers to get me out of the jail. My mother was not in the know of how I was trying to help the movement. My mother was under the impression that her innocent son had been arrested sir. My mother was trying for services of lawyers to get me out sir, but they had said that will take a very long time and that was a year and then my mother resorted to bribing. MR VRACHNAS: Everyone in Sri Lanka knows that the first thing you do is bribe. Why do you leave that for so long when you're in jail? INTERPRETER: We were not used to that, my mother was alone and she did not think of it at the beginning because she thought I was innocent and I would be released. It was only after my uncle Chellappah came to know about my helping the Tigers with collection of funds and all that, that my mother resorted to the bribing. MR VRACHNAS: Did he get you out in April 1995? INTERPRETER: Yes sir. MR VRACHNAS: Did he pay a bribe then? INTERPRETER: No, not at that time sir. MR VRACHNAS: Apart from that last bit, your story sounds alright, but the last bit sounds a bit made up. INTERPRETER: Beg your pardon sir? MR VRACHNAS: The whole story about being picked up and kept for two or three months, because you've got some relationship with Kopan, doesn't seem to fit in with the rest of your life. INTERPRETER: Sir, I, in fact those four officers that were bribed, they did not like me staying in Sri Lanka because suppose the Department comes to know that they have been bribed, they will also lose their jobs sir, therefore I am quite confident that if I am there, they themselves will resort to arrest me again sir. The first time when I went to sign itself, I found that my life was in danger because the remarks that they made there was not really acceptable sir. It is how it happened sir, they just ask you to come to the police station to sign then later that particular person will be missing and they'll deny the fact that they finished with the person concerned sir, and finally the youth is lost. MR VRACHNAS: That whole episode doesn't fit in with the rest of your life; it looks to me like you could have invented that particular episode about Kopan collecting money for the LTTE and going to jail.

In that passage, the Tribunal seems to be asking the applicant why he endured detention for two to three months before securing his release by resort to bribery. The applicant provided an answer to that enquiry by indicating that his mother at first had been unaware of the seriousness of the suspicions held about her son and had been unaware of the corruptibility of the relevant officials until enlightened about it by the "uncle", Chellapah.

In a related way, it was claimed on behalf of the applicant that the Tribunal's approach to finding facts was flawed because of the inconsistency between its acceptance that bribery was rife among Sri Lankan officials and its incredulity that the applicant's release from detention had been procured by bribery. As well, it was contended that the Tribunal's reference to the applicant's need for resort to a migration agent "to find a way to Australia" was misconceived because, as the Tribunal acknowledged, the applicant already had a passport which would enable him to leave Sri Lanka and he obtained no assistance from an agent to come to this country because he arrived here without a visa.

It was put at the forefront of the case for the applicant that the Tribunal had formed an adverse view of his credibility as a witness without pointing to any aspect of his demeanour and without identifying any inconsistency in his testimony. However, it is the province of the Tribunal to make findings of fact and this Court should not examine minutely the language in which those findings have been made to determine whether, left to itself, it would have found the same way. Kirby J's caveat in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 is of general application in this area:

The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

The credibility of a witness is often influenced by observations of demeanour made by the Tribunal of fact. As Tamberlin J said in Dev Anan Navaratne v Minister for Immigration and Multicultural Affairs (unreported, 1 August 1997) at p 7:

The credibility of an applicant is largely a matter of impression. There is no reason, in principle, why the observations of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review applications to this Court under s 476 of the Act. The oft-cited remarks of the Court as to the "subtle influence of demeanour" are especially important in migration cases where many of an applicant's assertions must be accepted at face value in the absence of any evidence to the contrary. Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified. For these reasons it will often be difficult to persuade this Court on a review application to set aside findings by an administrative decision-maker on credibility questions. Abalos v Australian Postal Commission was also cited in a similar context by Hill J at first instance in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 at 486 where his Honour said: It is true that there is nowhere to be found in the tribunal's reasons a finding as to the applicant's credit. For the applicant it is said that, absent a finding as to credit, it would not be open to the tribunal to disbelieve the applicant. For the respondent it is submitted that a finding contrary to the applicant's credit is to be inferred. There is no doubt that it would be desirable, where the tribunal does not believe a witness and prefers to find to the contrary of the evidence of that witness, that it make a finding as to the witness' credit. But a failure to enunciate such a finding does not, in my view, involve an error of law vitiating a decision. It may be recalled that in Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354 the trial judge had made findings contrary to the evidence of a witness, but had made no reference to that evidence. It was held, nevertheless, that an appellate court was bound to accept the trial judge's findings if credibility could have played a part. McHugh J (at CLR 179; ALR 363), with whose judgment the Chief Justice, Deane, Dawson and Gaudron JJ all agreed, said: ... when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue [emphasis added]. Likewise, it does not follow that because the tribunal made no express reference to the applicant's credibility, the tribunal's view of the applicant's credibility played no part in its finding with respect to the December 1991 incident.

The general application of those remarks may be conceded but the absence of an express finding as to an applicant's credit may have a bearing, in an appropriate case, on whether the Tribunal has correctly asked itself "What if I am wrong?" as required by the final principle enunciated by Kirby J in Wu Shan Liang (supra) which is discussed below. If, for example, an applicant has been caught out telling barefaced lies, that would enable the Tribunal with more confidence to reject his or her evidence on other alleged facts which were not extrinsically demonstrated to have been true or false. On the other hand, the Tribunal could not reasonably be as adamant about the correctness of a view of credibility formed wholly on something as evanescent as "the subtle influence of demeanour".

The considerations which militate against a confident finding of fact being based solely on the credibility of a witness were eloquently articulated by Foster J in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194:

I would also make the observation that even the most experienced decision-maker can encounter considerable difficulty in assessing the credibility of a witness especially where that witness is disadvantaged by problems of language and lack of familiarity with the situation in which he or she is placed. It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony. Where proof beyond reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence. However, in cases where only a real possibility need be shown, care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

In the present case, the Tribunal set out in an unexceptionable way in its reasons the authorities governing what is required for a finding of a "well-founded fear of persecution" as illuminated by the "real chance" test propounded by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 where Mason CJ after referring to the exegesis of "well-founded" in various overseas authorities, said at 389:

I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen (1986) 161 CLR 10 at p 21, per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

The Tribunal also acknowledged, after reference to Mok Gek Bouy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1, that a finding that there is such a real chance involves an element of what the Tribunal called "prospectivity". However, there is no reference in the Tribunal's reasons to the possible need to ask "What if I am wrong?". As already indicated, the circumstances in which the Tribunal has to pose that question have been outlined as follows by Kirby J in Wu at 293:

1. Because the test propounded by this Court in Chan involves the necessity of a measure of speculation about what the chances held in store for an applicant, and whether there was a "real chance" that made an established fear of persecution "well founded", an indication that the delegates had put all speculation out of account would certainly show legal error. So would an indication that the evaluation of the "chance" and its "reality" had been made by a test of weighing the probabilities. Two points must be made here. First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan. Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: "What if I am wrong"? (Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441, per Einfeld J.) Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight", the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution.

Of course, the Tribunal may have such confidence in each of its conclusions of fact that there is no occasion for it, at the end of the fact-finding process, to go back and ask "What if I am wrong?". The effect of attaining that degree of confidence is indicated in these passages from the judgment of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 578-580:

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason". Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC. ... If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution. In the present case, however, the tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the tribunal was not then bound to consider whether its findings might be wrong.

My understanding of the combined operation of Kirby J's principle 8 in Wu and the passages just quoted seems to have been shared by a Full Court of this Court (von Doussa, Moore and Sackville JJ) in Uma Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997) where it was said, at p 11:

The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another: see Wu at 281-282. If the RRT, in its evaluation of the evidence, finds that a fact alleged by a claimant in support of his or her case did not happen, that rejected allegation of fact can provide no substantial basis for speculating that a well founded fear exists. This statement of general principle requires qualification where, although the RRT considers that past fact asserted in support of the claim for refugee status probably did not happen, a finding to that effect cannot be made with the degree of confidence which justifies putting aside the allegation as being without substance. The need for this qualification is recognised in the passage last cited above from Guo at 579, and in the judgment of Kirby J in Wu at 293:

A similar approach seems to have been taken by Drummond J in Tranh Phat Ma v Billings (1996) 142 ALR 158 where his Honour, after referring to Kirby J's exposition of the "What if I am wrong?" test in Wu, observed at 160:

I do not think that Kirby J, in the last part of the passage in his reasons in Wu which I have set out, suggests that the decision-maker must refrain from reaching conclusions on the factual issues before him, but must instead proceed immediately to speculation on whether, on the whole of the material before him which he has not attempted to assess for probative cogency, the particular applicant for refugee status has a well-founded fear of persecution. ... All I think Kirby J was concerned to explain was that, unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.

In the present case, the past matters on which the Tribunal was invited to base its prediction as to the future in assessing whether there was a real chance of persecution included the fact that Mr Rajalingam had been held in detention for about two months and had been released subject to reporting conditions. A related issue was whether the applicant had come under the notice of the authorities as being an LTTE sympathiser and supporter. The Tribunal reached a conclusion adverse to the applicant on each of those issues. However, it is not possible to infer from its reasons, or from anything said in the course of the Tribunal hearing, with what degree of confidence it did so.

The reasons advanced for the rejection of the applicant's assertions are not objectively cogent enough to impute to the Tribunal a view that the probability of error in the rejection of each of them was insignificant. As I have already noted there are no adverse comments about the applicant's demeanour and no demonstrated inconsistencies or untruths in his story. What was relied on, in rejecting the assertion that the applicant had come under notice as an LTTE supporter, was a perceived unlikely coincidence between the failure by the applicant's mother to obtain a visa, his claim to links with the LTTE and his departure for Australia. The refusal to find that the applicant had been detained for about two months in November 1996 seems to have been based solely on the Tribunal's perception that it was inherently unlikely that he would have allowed a period of that length to elapse before bribing his way out and would then have been placed on reporting conditions. Moreover, the Tribunal did not convey the impression that it regarded that perception as particularly cogent when it put it to the applicant, saying only:

Apart from that last bit, your story sounds alright, but the last bit sounds a bit made up.

As I have already indicated, the applicant advanced reasons why the Tribunal's perception in that respect was unfounded. However, the Tribunal did not subsequently indicate, in its reasons or elsewhere, why, or with what degree of confidence, it rejected the applicant's explanation. I do not regard the reference to the applicant's resort to a migration agent as supplying a basis from which to infer that the Tribunal had the requisite degree of confidence in rejecting each of the facts which I have identified. Moreover, I do not consider that the Tribunal's hypothesis that the applicant, after bribing his way out of detention, would have been placed on an "alert list" and thereby have been prevented from leaving Sri Lanka, to be sufficiently compelling to sustain the degree of confidence that it could not have been wrong which is mandated by the principles enunciated in Guo and Wu. As Counsel for the applicant submitted, his freedom to leave was equally consistent with the hypothesis that he was regarded by the authorities as a low level LTTE supporter who had not been implicated in violence and who, having bribed his way out of detention, was on reporting conditions. Why, it was rhetorically asked, would presumptively corrupt officials take the risk of having attention drawn to their corruption by placing the applicant's name on an "alert list"?

In the result, particularly having regard to the absence from its reasons of any reference to that test, I am not persuaded that the Tribunal asked itself "What if I am wrong?" or that it was so confident in its rejection of each of the facts critically relied on by the applicant that it considered it unnecessary to ask that question. The failure which I have imputed to the Tribunal amounts to an error of law in the sense in which that expression is used in s 476(1)(e) of the Migration Act. It is therefore unnecessary for me to consider whether the Tribunal failed to act in accordance with substantial justice and the merits of the case as ordained by s 420(2)(b). An affirmative finding on that question would have required consideration of the conflict of authority as to the availability of such a finding as a ground of review under s 476(1)(a) which was considered by a Full Court of this Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 from which the High Court has granted leave to appeal.

I should indicate, however, that I reject the claim on behalf of the applicant that the Tribunal had failed properly to assess what might happen to him if he were returned to Sri Lanka. Reference was made to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 where Black CJ said, at 270:

If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded. I should add that this seems to me to be a better way of looking at the matter than to say, as the first and last sentences of para 91 of the Handbooksuggest, that the fear of persecution need not extend to the whole territory of the refugee's country of nationality if under all the circumstances it would not have been reasonable to expect a person to relocate.

However, it will be recalled that the Tribunal acknowledged that "it may be the case that the Applicant could not safely return to the Jaffna Peninsula" but went on to indicate that, before his departure, the applicant and his family had successfully relocated themselves in Colombo. In those circumstances, it was appropriate for the Tribunal to assess the reality of the applicant's chance of being persecuted on the assumption that he would continue to live in or near Colombo on his return to Sri Lanka without according any significance to the prospect of his returning to the Jaffna Peninsula.

I also agree with the submission of Counsel for the respondent that this is not one of the very limited class of migration cases in which a review can be made out on the ground afforded by s 476(1)(g). In my view, the applicant's submissions on this aspect must be rejected for the reasons explained by Goldberg J in Ratnayake v Minister for Immigration and Ethnic Affairs (VG 721 of 1995, unreported 6 May 1997) at p 22:

In any event, these submissions founder on the proposition that the ground asserted can only be made out if the Tribunal was required by law to reach the decision only if a particular matter was established and there was no evidence from which the Tribunal could reasonably be satisfied that the matter was established. As Olney J pointed out in Tho Xuan Doan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 9 April 1997) the ground referred to in s 476(1)(g) will rarely if ever, be available to an unsuccessful applicant before the Tribunal. Although one can identify particular matters which are to be established in order to find that a person is a refugee (Article 1A(2) of the Convention), it is rare that one can identify any particular matter required by law to be established in order to conclude that a person is not a refugee. One such matter may be found in Article 1E of the Convention but such a situation is not relevant in this case.

However, because of the error of law which I have identified in the Tribunal's approach to the question of whether the applicant had a well-founded fear of persecution, the Tribunal's decision must be set aside. Because I share the doubts expressed by Gray J in Kathiresan v Minister for Immigration and Multicultural Affairs (VG 305 of 1997, unreported 4 March 1998) at pp 13-14 as to whether the Court has power to remit the matter to be heard by a differently constituted tribunal, I shall order only that the matter to which the decision relates be referred to the member of the Tribunal who made that decision to be further considered according to law. I have not thought it appropriate to give specific directions to that member of the kind given by Gray J in Kathiresan but I shall reserve liberty to apply. The respondent must pay the applicant's costs.