VGAO of 2002 v MIMIA

[2003] HCATrans 522

[2003] HCATrans 522

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M121 of 2003

B e t w e e n -

VGAO OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2003, AT 9.58 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE:   If the Court pleases, I appear for the applicant in this matter.  (instructed by Mallesons Stephen Jaques)

MR C. GUNST, QC:  If the Court pleases, I appear with my learned friend, MR W.S. MOSLEY, on behalf of the respondent.  (instructed by Clayton Utz)

GLEESON CJ:   Mr Donaghue.

MR DONAGHUE:   Your Honours, in the court below all three members of the Full Federal Court agreed that the decision of the Refugee Review Tribunal that lies at the centre of this proceeding was a very poor decision.  Their Honours found that the reasons of the Tribunal were “neither cogent nor persuasive” and Justice Wilcox, in the course of giving his judgment, expressed concern at the possibility that the applicant faces a real risk to his life if he is returned to Sri Lanka.

Notwithstanding those criticisms, however, the Full Federal Court rejected the application because it took the view that when the Tribunal states a view that particular evidence is implausible, what it does is make a finding of fact that is not susceptible to judicial review.  Your Honours, the main question that arises in this case that, in my submission, warrants the grant of special leave is whether that approach is right.  In essence, the submission that is made is that when the Tribunal finds that evidence is implausible that is the outcome of a reasoning process by which the Tribunal balances on the one hand the particular evidence, the particular claim, against on the other hand what it views as the ordinary state of affairs in the country in question.

Now, that exercise of comparison, which is inherent within the word “implausible”, in my submission, will lead to jurisdictional error unless two conditions are satisfied.  The first is that there is some foundation in the evidence for the conclusion about what is normal, what is usual; some foundation for the comparison.  The second is that that foundation is disclosed to the applicant, so that they have some opportunity to respond to it.  In this case the applicant’s primary submission is that the error was at the first stage.  There was just no foundation for the comparison that the Tribunal undertook, but if the Court is against me on that proposition then the second proposition would be established because there was plainly no disclosure.

This case, in my submission, warrants the grant of special leave because the mode of reasoning that the Tribunal adopted, this comparison of a particular claim against what is usual or ordinary, is extremely common.  About 20 per cent of the claims that the Refugee Review Tribunal rejects are rejected through an analysis that involves reasoning of that type.  Now, not all of those decisions would involve error because the two conditions I just mentioned might be satisfied.  There might be the evidential foundation needed, but in this case there plainly was not.

Your Honours, if I could take you very briefly to the factual context in which this question arises.  I am starting at the bottom of page 11 of the application book at line 35.  There your Honours will see that the Tribunal found that:

The applicant presented as an intelligent and articulate witness at the Tribunal hearing.  He provided detailed, consistent evidence in his protection visa application about the political activities and positions of members of his family.

So there was no demeanour criticism of this application.  Over the course of the next page the Tribunal accepted many of the claims that had been made; accepted that he had been active in politics for five years, that he had worked for two different members of Parliament, that his family was a very high profile political family, that he was known to be associated with one of his uncles who was a Minister in the Sri Lankan Government.  He was known and popular for his charity work in the region in which he lived.  All of that was accepted, but the critical finding, the critical claim, was not.  That claim appears at about line 23 – I am sorry, line 30 of page 12 of the application book and this is really the finding that lies at the centre of this proceeding.  The Tribunal said:

However, I do not accept the applicant’s claims that Dasanayake –

who is a member of Parliament with the rival political party, the People’s Alliance –

threatened him in March 1996.  I find that the evidence in support of that claim was inconsistent, implausible and unconvincing.

And the reasons for that then appear in the next few sentences.  The Tribunal refers to two pieces of evidence:

I refer to his evidence, which I have accepted, in relation to his commitment to and public support of the UNP in the Puttalam area.  I also refer to the involvement of members of his family in leadership positions in the UNP.  In light of this evidence –

in my submission, that can only be the two pieces of evidence just mentioned –

I find it implausible that Dasanayake, a PA parliamentary member representing Puttalam . . . would ask the applicant to betray his family and political allegiance to the UNP for money or for any other reason.

Now, all of the other findings – there are then a series of findings that the respondent places some weights on – they are all introduced by “Furthermore”; they are additional reasons.

GLEESON CJ:   Yes, and they extend over a couple of pages apparently.

MR DONAGHUE:   The “Furthermores”?

GLEESON CJ:   Yes.

MR DONAGHUE:   They do, your Honour.  In my submission, the structure of the finding is – the claim is said to be inconsistent, implausible or unconvincing.  The reasons it is said to be implausible are dealt with in the paragraph I just read and the next two, and then there is a paragraph about inconsistent and a paragraph about unconvincing, and I will deal with all of them quickly.  In my submission, the substance of the reasoning here is that it is just not plausible that someone who is a well‑known supporter of one political party would be asked to change sides, and because that is not plausible this applicant, whose evidence was otherwise accepted because he was intelligent and consistent and articulate, will be rejected on a critical point that determines the claim.

Now, there was not any evidence at all to suggest that politicians in Sri Lanka are not asked to change sides – do not change sides with any regularity, but the Tribunal’s assumption that that is the case, that as a factual matter people do not shift parties in Sri Lanka, critically determined this application.

GLEESON CJ:   Well, what about the reasoning commencing at line 25 on page 13?

MR DONAGHUE:   The claim of the inconsistency, yes, your Honour.  What is said to be inconsistent is – it is said that the applicant gave inconsistent evidence because on the one hand he claimed when Dasanayake came and made the threat he was accompanied by police.  It is said that that is inconsistent with Dasanayake threatening him and telling him not to report the threat to the police.  Now, in my submission, there is just no inconsistency.  So it is not that the applicant gave different versions of events.  There is no inconsistency of that type.  It is said that the content of the claim is inconsistent, because if the police were protecting Dasanayake then he would not have been worried that the applicant might report the claim to the police.

You only have to state that to see it does not make sense.  It assumes that one or two police officers who are accompanying Dasanayake completely represent the views and position of the entire Sri Lankan police force.  It could easily be the case, that Mr Dasanayake had some police protection, but that nevertheless had the threat that was made, the death threat, been reported to other police authorities that might have been a concern to Dasanayake, and that is what the applicant says.  He says, “Well, look there were police with him.  I was scared if I went to the other police it might get back to Dasanayake that I’d done so and he would carry out the death threat that I had made”.

GLEESON CJ:   I think you lost in the Federal Court because the view was taken, both at first instance and on appeal to the Federal Court, that regardless of the view one takes as to the merits of the factual reasoning of the Tribunal – or elaborate reasons - made a decision of fact adverse to your client.

MR DONAGHUE:   Yes.  That is why we lost.  The case here is not that the Tribunal’s reasoning was deficient in some – that the way it expressed its reasons was deficient.  It is that the reasoning concealed an evidential foundation that – that the reasoning proceeded upon a line of logic that required evidential foundation, that just was not there, that on analysis this finding – if this finding had been supported by a country information document that said, “Political loyalties are very strong.  Politicians don’t change sides” then we would not have a case.  But the fact is this was never disclosed.  Had it been disclosed the applicant could have shown that that is nonsense.  The government of Sri Lanka fell in the year 2000 because five politicians changed from the People’s Alliance to the United National Party so that the government lost its majority and it was changed.

It was a claim that could easily have been refuted by evidence had the applicant been given that chance, or had the Tribunal made some attempt to check whether its assumption about the way politics works in Sri Lanka was right or not.  But it did not disclose the assumption and it did not check the assumption, it just guessed, and that guess led to the rejection of the critical piece of evidence that determined this claim.  Now, in my submission, your Honours, the guess was - the implausibility conclusion is a conclusion that is only open to a Tribunal of fact, such as the RRT, in circumstances where there is evidence to support it.

That opposition does derive some support from the Federal Court authorities, to which I will take your Honours very briefly if I may.  The first authority is behind tab 4 in the bundle of authorities that have been handed up, W148/00A.  Your Honours will see at paragraph 67 of that case, which is towards the end, the third last page ‑this is a passage in the joint judgment of Justices Tamberlin and R D Nicholson in the Full Federal Court - their Honours say this:

There is one aspect of the approach taken by the decision‑maker in the present case which gives us some cause for concern.  It is this.  Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant’s account to be “implausible” or “highly unusual” does not constitute a finding on the question raised.  Such expressions are more in the nature of observations or side comments rather than findings.

Then it is the next sentence that is critical, your Honours –

The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms.

Now, in my submission, that is exactly right.  But it did not occur in this case, and it regularly does not occur in cases of this ‑ ‑ ‑

McHUGH J:   But why should it?  Juries are told again and again you do not leave your commonsense outside the courtroom door when you come into the jury box.  If somebody said, “I drank two bottles of whisky and my mind was as clear as a bell” you do not need any evidence for the tribunal of fact to say that is an utterly implausible conclusion, statement.

MR DONAGHUE:   Your Honour, I accept that, and in my submission there is an important distinction between domestic triers of fact and bodies such as the RRT where their own life experience is likely to be a much less certain guide and to take an example.  Evidence may be implausible in one country in one time, one culture, that would be completely plausible in another.  So the context of the comparison is critical, and if we take for example a claim – if an Australian woman claimed, “I fear that I’m going to be stoned to death because I’ve engaged in adultery” that would be an implausible claim; an Australian woman in Australia.  But if the Tribunal, faced with that claim from an Iranian woman, said, “Oh, we’re in the 21^st century now.  Women don’t get stoned to death for adultery” that would be plainly erroneous.  The Tribunal would have drawn on its experience of life in Australia to make a comparison about a claim that just arises in a completely different context.

McHUGH J:   Yes, but rightly or wrongly the federal legislature has entrusted these issues to the Tribunal and not the courts.

MR DONAGHUE:   It has entrusted the fact‑finding role, yes, but there must be boundaries on the fact‑finding role.  In my submission this Tribunal – it emerges from an analysis that the provisions of Part 7 of the Act – is a Tribunal that is required to act on evidence.  It is required to conduct a review, it is required to take evidence from the applicant, it is required to disclose the evidence on which it relies, it is required in its reasons to set out the material evidence that has led to its conclusion.  In this case ‑ ‑ ‑

McHUGH J:   But it is not required to act on evidence when it is dealing with issues of credibility.  It might not like the look of the applicant, rejects his evidence.  It is unfortunate if he is telling the truth, but that is the system.

MR DONAGHUE:   Again, if the finding is based on the fact that he does not like the look of the applicant – again, I accept that – but it did like the look of this applicant.  He was coherent, intelligent, gave detailed and consistent evidence.  It was not a demeanour – if that had been right, if this had been a demeanour finding, again I accept that there would be no case.  But this was not a finding that was based on that sort of problem.  It was based on the Tribunal’s view that Sri Lankan politicians do not change sides.  That was a fact that it assumed existed, that did not exist.  It was a guess and because of that guess, the facts that actually did exist that were before the Tribunal, were not given weight in the process of deciding whether there was a well‑founded fear.  The Tribunal just stopped the review inquiry that it was required to carry out, stopped it because of its guesswork or speculation and, in my submission, constructively failed to exercise its jurisdiction.

That is not a criticism of the Tribunal for lacking the detailed knowledge of what takes place in Sri Lanka.  It is just a submission that if the Tribunal is going to make findings of this kind, if it is going to make implausibility findings, it should make sure.  So it can still make demeanour findings, it can still reject evidence on all sorts of other bases, but if it is going to make findings of this particular type it should make sure that it is right about what is usual in the country concerned.  It should make sure that it knows whether women are stoned to death in Iran.  It should make that it knows whether people change political parties in Sri Lanka.

Your Honours, in relation to the question of the importance of this point, the line of reasoning that the Tribunal adopted in this case and many other cases has elicited some concern from the Federal Court.  Your Honours, I will just take you to those passages very briefly.  They are made in the case behind tab 2, Thevendram.  At paragraph [59] of that case, on the second last page, Justice Merkel, with whom Justice Carr agrees, expresses concern:

at the confidence with which some members of the Refugee Review Tribunal find themselves able to make adverse findings on credibility on the basis that the evidence given by claimants is “implausible”, “incredible” or “concocted”.  Anyone experienced in fact‑finding would be well aware that in the usual course clear and cogent evidence is necessary before such strong findings are made against a witness.  Whether, and in what circumstances, a court can set aside a decision under the Act that has been made on the basis of such findings is a vexed question.

Now, that is the vexed question that, in my submission, this application raises.  It is a very good vehicle for examining the question of the boundaries of findings of this type.  It is a point that assumes, in my submission, particular importance because of observations made by Justice Lee in the same case.  This is the last passage I will take your Honours to.  At the bottom of page 297 at paragraph [26], about five lines up from the bottom Justice Lee says:

If general statements to the effect that claims of an applicant are “not credible”, or are “implausible”, are regarded as “credibility” findings not dependent on findings of fact, and that any decision based thereon is beyond the scope of judicial review, there is a real risk that reasons for decision will be constructed accordingly -

and his Honour goes on to note the comments of this Court in the Enfield City Council Case, about the undesirability of decision‑makers moulding their decisions in a way that minimises the potential for judicial review.  Now, these findings are so common, your Honours, that the boundaries, the circumstances in which the Tribunal can insulate itself from judicial review by adopting these kinds of factual findings, in my submission, raise a question of substantial public significance.  If the Court pleases.

GLEESON CJ:   We do not need to hear you, Mr Gunst. 

The Court is of the view that there are insufficient prospects of success of an appeal to warrant the grant of special leave in this case.  The application is refused with costs.

AT 10.16 AM THE MATTER WAS CONCLUDED