SZDYI v Minister for Immigration - [2005] FMCA 971

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDYI v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 971

MIGRATION – RRT decision – Cambodian couple fearing political retribution – claims not accepted by Tribunal – no failure to consider relevant evidence – no error in failure to speculate.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.483A, Pt 8

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152
WAEE v Minister for Immigration (2003) 75 ALD 630
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568

Applicant:

SZDYI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1984 of 2004

Judgment of:

Smith FM

Hearing date:

22 June 2005

Delivered at:

Sydney

Delivered on:

22 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr B M Zipser

Solicitors for the Applicant:

Eric Hong & Associates

Counsel for the First Respondent:

Miss R M Henderson

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1984 of 2004

SZDYI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 May 2004 and handed down on 3 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.
The claims made by the present applicant to satisfy the Convention definition are not easily summarised. In the material before the Tribunal they emerged as a confused and contradictory series of narratives provided by the applicant’s husband in support of his own protection visa application and as a witness in the present application, and by the applicant herself in documents and oral evidence. The Tribunal has identified their claims in 8 closely typed pages of its statement of reasons, which provide what I consider to be a careful description of all the material before it. In my opinion, it has then performed a balanced assessment of the evidence, and made a genuine attempt to distil the truth and to apply its findings of fact to relevant elements of the Convention definition of “refugee”.
Counsel for the applicant did not attempt to summarise his client’s claims, and conceded at the forefront of his written submissions that “there appear to be inconsistencies in the applicant’s claims to the Department and Tribunal”. He made no submission that it was not open to the Tribunal to be dissatisfied with the general credibility of the applicant and to disbelieve key elements in her claims. However, as will appear below, there were some aspects of the applicant’s history which were accepted by the Tribunal, and counsel sought to build grounds of jurisdictional error upon these findings and upon an absence of discussion by the Tribunal in relation to two pieces of the evidence before the Tribunal.
The factual background is that the applicant and her husband are nationals of Cambodia now aged in their 50’s. The husband arrived in Australia in May 1997. In his protection visa application made in May 1998, he claimed to fear persecution after receiving threats from the CPP party which had seized power in a coup in July 1997 after his departure from Cambodia. He said that, before his departure, he had been a member of the rival FUNCINPEC party and had campaigned for that party for elections which were due to be held later in 1997. Elections finally did take place in July 1998, in which the CPP failed to win enough seats to form government in its own right and formed a coalition government with the FUNCINPEC.
The husband’s application was refused by a delegate on 4 June 1998, and this decision was affirmed by the Tribunal on 30 November 1999. The Tribunal accepted that he had been a FUNCINPEC member when he left Cambodia and had received threats, but found, on DFAT advice, that persons of his claimed background would be able to return to Cambodia without hindrance or harassment.
The husband’s account of his political activities and experience which was presented to the present Tribunal differed markedly from his evidence. He and the present applicant claimed that he had been active in FUNCINPEC in 1993, and had been seriously injured at that time in an assault by “Hun Sen men”. In 1996, he had become a spy for FUNCINPEC, and had obtained information from a neighbour who was an “agent for Hun Sen” and thereby learned of the intended coup. In early 1996 he was again ambushed and severely injured. He decided to flee Cambodia because he had knowledge of the plan by the Hun Sen administration to oust FUNCINPEC as a coalition partner.
The present applicant joined her husband in Australia in April 1998, on a passport showing a false identity. She said that she had left their son and three daughters in Cambodia. Her own application for a protection visa was not lodged until 26 September 2003, after she had been taken into immigration detention.
In her application, which was prepared with the assistance of Mrs Marion Le, OAM, she claimed that she left Cambodia because:
It became very unsafe for me especially after my husband fled to Australia in 1998. His enemies threatened to kill me and take revenge on me if he did not return. My husband was tortured for political reasons. As a result he is now almost deaf. I could not leave with him so afterwards when I became so afraid of his persecutors I obtained a passport in a false name and also fled to Australia.
I fear that I will be killed by agents of political enemies of my husband who are targetting all my family now.
My eldest daughter disappeared just after I came to Australia in 1998.
Then there were threats that if my husband and I did not return, all our children would be killed one by one.
We did not really believe that people would kill our innocent children.
I kept hoping that the threats would cease and I could return to Cambodia. That is why I did not seek to apply for a visa to stay here. I also did not want other Cambodians to know I was here.
Then in June, 2003 our only son was stabbed and killed – we were told it was politically motivated – he was killed because of my husband’s problems politically.
I fear returning because I am sure I will be killed also.
I am now very afraid for the lives of my two daughters.
An affidavit, death certificate and photographs were presented as corroboration of the death of the applicant’s son.
The delegate refused the application on 23 October 2003. In his reasons, he said that “the applicant has neither detailed nor substantiated her claims of her husband’s political involvement against the CPP”. He noted that she had not claimed any political involvement of her own, and was not satisfied that the applicant had been persecuted in the past or would be persecuted if she returned by reason of her husband’s political activities in Cambodia.
Still assisted by Mrs Le, the applicant lodged an application for review by the Tribunal on 27 November 2003. It was supported by a brief statement referring to her claims made in her visa application. No further material was given to the Tribunal until shortly before a hearing on 28 April 2004. The applicant then appointed a new migration agent, a firm of solicitors, and they lodged much material and a submission in support of the application.
These documents put forward the different history of the husband’s political activities to which I referred above, involving his being assaulted in 1993 and 1996 and having advance knowledge of the 1997 coup. The material attempted to explain why these claims had not previously been made. A solicitor’s affidavit also claimed to have witnessed the applicant receiving news by telephone of an attack on her youngest daughter in which “a group of unidentified men riding motor bikes attempted to run her off the road, as she was walking from home”.A report by a psychiatrist was also presented, which concluded that the applicant suffered from “adjustment disorder with depressed mood”.
The applicant and her husband attended a hearing on 28 April 2004.

A transcript of the hearing is not in evidence, but the Tribunal gives a description which is not criticised by the applicant’s counsel. It is clear that the Tribunal explored the applicant’s claims thoroughly, and no complaint is made that the Tribunal’s proceedings were attended by any unfairness.
Following the hearing, the applicant’s solicitors presented further material. This included an affidavit by the applicant’s husband, and information “on the state of Cambodian politics”. It also included a document entitled “Summary of psychological assessment” on the letterhead of the “Service for the Treatment and Rehabilitation of Torture and Trauma Survivors”. This contained opinions of someone described as a “bicultural counsellor”, but whose professional qualifications were not disclosed. Its conclusion included an opinion that the applicant “is a 55 years old from Cambodia who is suffering from symptoms consistent with posttraumatic stress disorder, anxiety and depression. She, clearly, indicated that symptoms related to her traumatic experiences have continued during her plight to applying for refugee status to stay in Australia”. This report is referred to by the Tribunal as the “STARTTS report”.
The Tribunal’s “Findings and Reasons” followed this path:
a)The Tribunal first referred to inconsistencies identified in the applicant’s evidence, and made general findings on the applicant’s credibility:
However, the Tribunal has very serious concerns about the Applicant’s credibility because her oral evidence about key issues did not make sense at times, and the Tribunal found it implausible, and because as can be seen from the detail set out above, the Applicant’s current claims, and her husband’s current account of his activities and treatment as a result of those activities, on which the Applicant relies heavily, have changed and expanded.
The Tribunal has taken into account that the Applicant is suffering from PTSD, anxiety and depression, and that as a result she has difficulty focusing on her past or discussing her current situation, however, the Tribunal is not satisfied that these difficulties explain the major changes to her claims, and to her husband’s claims, especially as she stated that her husband’s claims changed because she told him to tell the truth. Furthermore, the Tribunal is satisfied that despite these difficulties, the Applicant has presented her case and answered the Tribunal’s questions, as in addition to plenty of time and opportunity to provide both written and oral evidence, including after the hearing, the Applicant has been assisted since the start of her case, by registered migration agents, and has had plenty of opportunity to make her case and clarify various issues of concern. The Tribunal is satisfied that where her oral evidence did not make sense and was highly confused, that this was because she was making things up as she responded to the matters raised by the Tribunal as the story unfolded.
b)The Tribunal then identified elements in the evidence of the applicant and her husband which justified the above conclusions. It rejected their explanations for not presenting information earlier, and explained why it thought them “totally unsatisfactory”.
c)The Tribunal accepted that the applicant’s husband had joined FUNCINPEC and been assaulted in 1993, and that he might have rejoined that party a few years later and remained a member until he came to Australia. However, it did not accept that he was a spy for FUNCINPEC, nor that he obtained information on the coup, nor that he was assaulted in 1996, nor that his neighbour “Charra wanted to harm the Applicant’s husband or his family to get him to return or in revenge”. The Tribunal gave specific reasons for these conclusions.
d)The Tribunal rejected the applicant’s original claim that her husband was “tortured”, noting that it was not asserted anywhere in the husband’s evidence.
e)It rejected “the claim that appeared in the STARTTS report” that the applicant feared arrest and prosecution for helping her husband escape, since this had not been made by the applicant in her evidence to the Tribunal nor earlier, and was inconsistent with the husband’s evidence that he departed legally. It similarly rejected another claim in the history taken by the STARTTS reporter that the husband experienced physical violence many times in 1997.
f)The Tribunal was not satisfied that the applicant had a well‑founded fear of persecution for reason of her own actual or imputed political opinions, since this was inconsistent with her own evidence.
g)It found that, even if the husband’s claim of spying for FUNCINPEC in 1997 were true, it was not satisfied that “there is a real chance that the Applicant will be harmed by Charra, or those acting on his behalf, or by the CPP more generally, for reason of her membership of her husband’s family, or for reason of her own or her husband’s actual or imputed political opinion, or for any other Convention reason, if she returns to Cambodia”. It explained this finding by reference to country information concerning FUNCINPEC’s continued involvement in the government. It said that recent independent information “does not indicate that ordinary FUNCINPEC members and supporters, or former ordinary members and supporters, are persecuted within the meaning of the Convention”.
h)The Tribunal then dealt with the applicant’s claims which sought to explain misfortunes happening to her children after she had left Cambodia:
The Tribunal accepts that the Applicant’s eldest daughter disappeared, or at least lost contact, with the family some months after the Applicant left Cambodia. However, the Tribunal is not satisfied that she was killed or captured by Charra, or his people or by the CPP, or that her disappearance had anything to do with the Applicant’s husband’s political activities or membership of his family. This is because the little available information does not suggest that this was the case. Furthermore the Tribunal does not find the claim plausible given that her father had not been politically active for about 18 months before she disappeared and she had lived near Charra for years, including for 18 months after her father left, without incident. Similarly the Tribunal accepts, despite the various contradictory dates in evidence about when he was killed, that the Applicant’s son was killed in mid 2003, but for similar reasons, the Tribunal is not satisfied that his death had anything to do with the Applicant’s husband’s political activities which ceased some six years earlier, or membership of his family. The evidence is also contradictory about where he was killed as the death certificate states that it was in (district) of (place) yet the affidavit from a Phnom Penh Quarter Chief, and the Applicant’s oral and written evidence, is that it was in Phnom Penh. Similarly the Tribunal accepts that the Applicant heard, on 17 February 2004, that her daughter had broken her wrist when she was run off the road, but it is clear from the Applicant’s contradictory evidence that she does not know who was responsible, and for similar reasons to those set out above, the Tribunal is not satisfied that this incident had anything to do with the Applicant’s husband’s former political activities or membership of his family.
i)The Tribunal concluded:
In sum, the Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution for reason of her membership of her husband’s family, for reason of his former political activities, for reason of her actual or imputed political opinion, or for any other Convention reason.
The applicant’s application to this Court was brought by her present solicitors. Counsel for the applicant was given leave at the hearing to amend the previously filed applications by substituting a further amended application in the form attached to his written submissions. He then addressed only the three grounds set out in that document, which I shall consider below. It is therefore unnecessary for me to consider the grounds previously put forward.

Ground 1. The Tribunal ignored or failed to take into account the significance of the fact that the applicant obtained a false passport in order to leave Cambodia, giving rise to jurisdictional error.

Counsel for the applicant submitted that the Tribunal had not, in the section of its reasons under the heading “Findings and Reasons”, made a finding as to why the applicant left Cambodia on a false passport. He submitted that I should find that it had, therefore, not considered this issue and that its failure established a jurisdictional error. The error was either:
i)A failure to take into account a relevant matter (citing Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] (“Yusuf”), and Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at [58‑59]); or
ii)A failure to follow a “principle” stated by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [191] (“Abebe”), that it is “hardly surprising” that a refugee claimant might embroider her account of her history, and that “it is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom”; or
iii)A failure to address an element of the Convention definition, being the requirement that the applicant subjectively has a genuine fear of persecution.
I consider that this submission fails at its foundation, since I am not persuaded to infer from the omission to refer to this factual question in this section of the Tribunal’s reasons, that it failed to consider the factual significance of the applicant leaving of Cambodia under a false passport (c.f. Yusuf at [10], [35], [69], and [75], and WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]).
Indeed, I consider that it is likely that the Tribunal gave this point a full consideration to such extent as it deserved. This is clear from its earlier description of its questioning of the applicant on the topic:
The Tribunal asked the Applicant about her application for a passport; she replied that she was told by the person helping her that it had been refused because she was being looked for by the authorities and even if she got a passport she would not have been allowed to leave the airport. Asked why the authorities were looking for her the Applicant claimed that even though she was not in FUNCINPEC “they” wanted her husband. The Tribunal noted that the Government does not generally restrict international travel and even the ban on international travel by FUNCINPEC leaders imposed in September 1998 was soon lifted (“Cambodia” United States Department of State Country Reports on Human Rights Practices for 1998 26 February 1999 section 2d). The Tribunal also noted that the Applicant’s husband travelled on his own passport which he got without difficulty and he left Cambodia legally. The Applicant replied that he paid for his passport. The Tribunal noted that payment for passport issue was usual but he had no problem and left legally. The Applicant said that she didn’t know about legal matters and when she wanted to leave she was scared.

It is therefore not necessary for me to explore the three ways in which counsel sought to turn into a factual issue going to jurisdiction what was, essentially, a relatively minor factual area which might or might not have been taken as supportive of the applicant’s claims.
My short opinions on these arguments are, as to the first argument, I do not consider that the point was a “relevant consideration” going to jurisdiction as is referred to in Yusuf. As to the second argument, I do not consider that their Honours in Abebe contemplated that their wise observations should be applied as a principle of jurisdiction. Furthermore, I would not infer that their observations have been overlooked by this Tribunal in its careful assessment of the applicant’s evidence. As to the third argument, I do not consider that the Tribunal has failed to address an element of the Convention definition which it was required to address. Its reasoning accepted or assumed that the applicant had a subjective fear of return, and decided the matter by reference to whether her fear was a well‑founded fear of persecution for a Convention reason.
I therefore reject the first ground.

Ground 2. The Tribunal ignored or failed to take into account an aspect of the report of STARTTS dated 4 May 2004 which corroborated the applicant’s claims, giving rise to jurisdictional error.

Counsel for the applicant submitted that the Tribunal had failed to take into account an opinion given by the author of this report in the following passage:
3.4 – Clinical Observation and Findings.
Mrs. KONG reported symptoms of post‑traumatic stress disorder and severe depression are clearly indicated by standardised self‑report (HSC‑25 and HTQ) and as displayed and described in counselling sessions. Furthermore, Mrs. KONG’s spontaneous and comprehensive description of symptoms of depression and post‑traumatic stress disorder are suggestive of someone who has suffered the events described and consistent with the finding that her psychiatric symptomatology became manifest in response to her traumatic events in her plight.
Counsel argued that this opinion provided corroborative evidence that the events had in fact happened, upon which the diagnosis of post‑traumatic stress disorder (“PTSD”) had been made. He argued that I should infer that this evidence was not taken into account by the Tribunal, and that this omission gave rise to the jurisdictional error identified by a majority in the Full Court in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 (“WAIJ”).
WAIJ was a case where a Tribunal received letters corroborating the applicant’s claims. After noting that it “would have been” easy for the applicant to have manufactured the letters, the Tribunal said “these letters do not overcome the problems I have with the applicant’s evidence and I place no weight on them as proof of the credibility of the applicant’s claims”. Lee and Moore JJ held at [25‑27]:
In the instant matter it was not in issue that if events had occurred as claimed by the appellant, the appellant had a well‑founded fear of persecution.
The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
and at [52‑54]:
The reasons provided by the Tribunal in relation to its rejection of the documents revealed that the Tribunal failed to act judicially in respect of that material. The Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to a tribunal acting judicially. There was no material before the Tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account.
It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
It follows that the Tribunal did not accord to the appellant practical fairness and justice in the Tribunal’s conduct of the review. Accordingly, the decision of the Tribunal involved jurisdictional error and was not a decision authorised by the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 per Gummow, Callinan JJ at [24], [32]). The appeal must be allowed and the application for relief by issue of prerogative or constitutional writs must be granted.
As I understand their Honours’ reasoning, they found that the error of the Tribunal was to disregard the letters without making any assessment of their authenticity and thereby to exclude them from the evidentiary “balancing process” involved when determining a refugee claim, in circumstances where such an assessment was an essential part of the Tribunal’s duty to conduct a review procedure according to law (see also [22], [43‑44], [48‑49]).
I do not consider that the present Tribunal has made this error in relation to any part of the STARTTS report.
The applicant’s submission has the initial difficulty of persuading me that the Tribunal did put out of its consideration the evidence provided by this opinion. Unlike WAIJ, the Tribunal says nothing which suggests this, and I am unable to make this inference from the absence of discussion about it. This is because it is clear from the Tribunal’s references to the STARTTS report in the parts of its reasons which I have set out above, that it was fully aware of the report and gave its contents careful consideration and evidentiary weight. This is indicated since, although the qualifications of the author were obscure, and although the author’s diagnosis of PTSD was far from definite, the Tribunal was prepared to take it into account by accepting that “the Applicant is suffering from PTSD, anxiety and depression” (see above at [16(a)]).
The Tribunal also specifically noted parts of the traumatic history given to the “bicultural counsellor” which it refused to accept (see above at [16(e)]). Taking into account the rejection of significant parts of the history taken from the applicant, and that the psychiatric opinion which is argued to have corroborated that history was expressed without any specific reference to any particular event or events within that history, the evidentiary weight which could be drawn from the passage identified by the applicant’s counsel was minimal, if any. In this situation, I can see no obligation on the Tribunal to have discussed the point now raised under this ground, and can draw no inference of jurisdictional error from the absence of such discussion.
I therefore reject this ground.

Ground 3. The Tribunal failed to undertake the required reasonable speculation in considering whether the misadventures which befell three of the applicant’s children were for a Convention reason, giving rise to jurisdictional error.

This ground challenged the Tribunal’s reasoning which I have extracted above at [16(h)] in relation to the events which the Tribunal accepted had happened to the applicant’s children. Counsel for the applicant argued that the Tribunal had applied a balance of probabilities test in finding that the misadventure which befell each of the children was not for a Convention reason. He submitted that “in light of the coincidence of misadventures” the Tribunal had failed to “undertake the required reasonable speculation” explained by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”).
Sackville J used this phrase at [62]:
In this context, it is not always possible for the decision‑maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non‑occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision‑maker even though the latter considers the disputed event probably did occur. (emphasis added)
In my opinion, assuming that a principle of law can be extracted from the above paragraph upon which jurisdictional error can be identified, Sackville J considered that the duty to engage in “reasonable speculation” arose if “the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred”. His Honour referred to the converse situation at [56], where he said that if “it appears that the RRT had no “real doubt” that its findings were correct, it is not bound to consider whether those findings might be wrong”.
Counsel for the Minister submitted that the occasion to engage into speculation about less than probable possibilities, which is suggested by Sackville J, did not arise in the present case since the Tribunal made clear findings – favourable to the applicant – that the events constituting the misadventures to the children did occur. She submitted that its adverse conclusion about these events arose from its assessment that they were not Convention related, not that they did not happen.
I do not consider that the discussion in Rajalingam can be put to one side in the present situation so easily. The Tribunal’s adverse findings as to the absence of a Convention reason for each of the misadventures, were as much findings going to the basis of the applicant’s claim for protection as were its findings about the happening of these events.
However, on my reading of the Tribunal’s reasons, it did not reach a situation where it was “uncertain” about its findings or had “real doubt” about them. It is important in this respect, when reading the challenged passage in the Tribunal’s reasons, to recall that the discussion came after the Tribunal had firmly concluded that it did not accept the truth of the claimed basis for the applicant’s fears of persecution for political reasons. She had also claimed the same basis for explaining her children’s misadventures. Read in the light of its earlier findings, the Tribunal’s characterisation as “implausible” of her explanations which sought to point to motives of political retribution years after her husband’s departure from Cambodia, should not be read as revealing uncertainty or doubt.
I am not persuaded that there was any “coincidence of misadventures” which should have caused the Tribunal to have entertained doubts such as to give rise to a duty to engage in the speculation suggested by Sackville J. I am not persuaded that the Tribunal failed to perform a proper assessment of this aspect of the applicant’s claims.
I therefore do not accept this ground.
In his written submissions, counsel sought to “make this Court more sensitive to the other errors explained above”, by identifying a mistake of fact by the Tribunal as to the location of the death of the applicant’s son. I do not understand the legal foundations of an argument which addresses a Court’s “sensitivity”. In any event, as counsel appeared to concede in his oral submissions, this error was immaterial to the Tribunal’s conclusion concerning the son’s death, and was entirely immaterial to its other conclusions. I do not consider that this point advanced the grounds of jurisdictional error which were relied upon.
For the above reasons, I have not found any of the argued jurisdictional errors, and therefore dismiss the application. The consequential costs order has been agreed.

I certify that the preceding forty‑one (41) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 22 July 2005