VHAX v Minister for Immigration - [2005] FMCA 270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VHAX & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 270

MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant a protection visa – Applicants are family from Sri Lanka – Applicants of Tamil ethnicity.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 430, 477, 478, 479

NAJO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 356
Re Refugee Review Tribunal; ex parte Aala (2000) CLR 82
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 212
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte S20/2002 (2003) ALR 59

First Applicant:

VHAX

Second Applicant:

VHAZ

Third Applicant:

VJAA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 389 of 2003

Delivered on:

24 February 2005

Delivered at:

Sydney South

Hearing date:

13 October 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Livermore

Solicitors for the Applicant:

Ambi Associates

Counsel for the Respondent:

Ms McLeod

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That a writ of certiorari issue, quashing the decision of the Refugee Review Tribunal dated 20 August 2002.
That a writ of mandamus issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.
That time to lodge an appeal is not to run until publication of written reasons for decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

MLG 389 of 2003

VHAX

First Applicant

And

VHAZ

Second Applicant

And

VJAA

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to section39B of the Judiciary Act, and sections 477, 478 and 479 of the Migration Act, for review of a decision of the Refugee Review Tribunal dated 20 August 2002, affirming a decision of the Minister not to grant protection visas to the Applicants.
The application was originally filed in the Federal Court of Australia on 3 October 2002, and subsequently transferred to the Federal Magistrates Court on 15 April 2003 by order of Weinberg J. The Applicants filed an amended application setting out the particularity of their claims in this court on 16 September 2003.
The Applicants are husband and wife and their son. They are citizens of Sri Lanka, and arrived in Australia on 12 June 2000. In July 2000 the Applicants lodged an application for protection class XA visas with the then Department of Immigration and Multicultural Affairs.
In October 2000 a delegate of the Minister refused to grant to the Applicants the visas that they sought. The Applicants then sought review of that decision with the Refugee Review Tribunal, by way of an application filed on 26 October 2000.
The Applicants left Sri Lanka on 10 June 2000. They are of Tamil ethnicity. The First Applicant was taken into custody by security forces after a suicide bombing in Colombo on 7 June 2000. The First Applicant was detained and mistreated until what he says was he falsely confessed his support of the LTTE, a Tamil terrorist organisation. The allegation is that the members of the security forces physically abused the Second Applicant - the wife, at the family home in Colombo.
The Second Applicant used moneys obtained by some family friends to bribe the authorities for the release of the First Applicant on 9 June 2000. A condition of the release was that the First Applicant should report to the police station on 14 June. Upon his release the Applicants left Sri Lanka as soon as possible and headed for Australia.
In their amended application, the Applicants set out the details of their claims. Those claims are that the decision of Refugee Review Tribunal was arrived at in breach of an imperative duty imposed on the tribunal, or an essential precondition to, or an inviable limitation upon its powers and its jurisdiction necessary for the existence of the satisfaction required pursuant to section 65A of the Migration Act to grant or refuse the application, and that the Refugee Review Tribunal went beyond its jurisdiction and/or constructively failed to exercise its jurisdiction, in that it; (1) breached section 424A of the Act, (2) breached section 425 of the Act, (3) breached the rules of natural justice, (4) the Refugee Review Tribunal made misleading or inappropriate statements, (5) it had regard to irrelevant considerations, (6) it failed to consider and address the concerns with respect to the claims of the Second Applicant, (7) that it failed to conduct a review under section 414 of the Act, and (8), it breached section 420 of the Act.
The tribunal accepted that the Applicants were of Tamil ethnicity. The tribunal accepted the fact that the Applicants had been born where they said, and that the Applicant husband had held a position with a shipping company from 1995 until he left Sri Lanka in June 2000.
The Applicants put to the tribunal that the husband was discriminated against because he was of Tamil ethnicity. He put to the tribunal that he was unable to secure employment in Jaffna following successful completion of his studies. The tribunal accepted his contention, but noted although this may have been the case, the husband was successful in obtaining employment in Colombo as manager of a shipping company after he returned from working in Saudi Arabia.
The Applicant husband put to the tribunal that there were occasions whilst in employment that remarks were made by other employees about him because he was a Tamil. The tribunal accepted these remarks were directed at him, but held they did not interfere with his managerial position, and did not interfere with his position to secure and retain employment. The tribunal did not accept that the Applicant husband would have been unable to maintain his managerial position if he was always suspected and monitored, as he alleged in his visa application.
The tribunal did not accept that the Applicant husband's assertion amounted to a fear of persecution because he was able to obtain secure employment. The tribunal did not accept that the harm the Applicant experienced was a serious one.
The tribunal did accept that the Applicants were subject to security checks whilst they lived in Colombo, and accepted that they may have been checked more than Singhalese people, but accepted this alongside other members of the populous.
The tribunal did not accept that the Applicant parents' account of the frequency of the security check was plausible, and held that the husband exaggerated what had actually occurred during these periods.
The Applicants put to the tribunal that their home was cordoned off and searched for militants or weapons and Tamil pamphlets. The tribunal did not accept that the Applicants were the subject of harassment and punishment, as they claimed in their visa application. The tribunal also did not accept the Applicant had encountered enormous problems with their landlords.
The husband put to the tribunal that he was constantly harassed when he showed his identity card because of his address in the north. The tribunal noted that these claims were inconsistent, but having regard to the statement of the tribunal ‑ that the Applicants enjoyed a wonderful life prior to June 2000, and the checking was considered by them as a matter of routine.
The tribunal found it implausible that the Applicant family was subject to 50 or 100 visits to their home, of some 30 to 45 minutes duration, over the five years they lived in Colombo, as asserted by the Applicant husband. The tribunal noted that the wife's evidence in relation to the number of home visits by the authorities was somewhat different.
The tribunal considered the evidence of the Applicants in relation to the assassination of politician, Mr Guneratne, and a number of other people, and held that there were parts of the Applicants' claims that led the tribunal to doubt their account of what had happened.
The tribunal was particularly concerned with checking the dates in relation to the assassination, and the date of the Applicant's departure from Sri Lanka. The tribunal found it difficult to accept the evidence of the Applicant husband when he said he was detained by the authorities and questioned the following day about giving the LTTE shipping information, when there had been no such interest in him in this regard on the part of the authorities previously, and when the focus of the authorities inquiries would have been on the assassination.
In the light of this evidence the tribunal found it puzzling that the security forces would have spent so much time questioning the husband after violent terrorist attacks, when there would have been so many other people to interview. The tribunal found it implausible that the security forces would have released the Applicant husband from custody a day after the assassination of a government minister, Mr Guneratne, after he, the Applicant, had confessed to assisting the LTTE. The tribunal did not accept that a bribe would secure the release of the suspect from custody in those circumstances.
The Applicant wife put to the tribunal that her husband had been placed in custody earlier in the morning of the day that he was later released, and that same day friends of the Applicants made contact with an associate of the Minister, who said he could help the Applicants if a sizeable bribe were paid.
The wife's evidence was that a friend sold the wife's jewellery to obtain some money. They used the money to pay the Minister's associate. The Applicant husband, she said, was subsequently released at approximately 3pm that day. The tribunal considered this evidence in the light of the circumstances, and concluded that it was implausible that such a sequence of events took place.
The tribunal, in considering all of the evidence put to it, including the Applicants' possession of Australian visas, found it implausible that they were able to make arrangements for their departure in a haste on 9th and 10 June, and took the view that their departure had been a planned event.
The Applicants had said that they had obtained visas to enter Australia early in the year to go to a cousin's wedding, although in the long run they never went.
The tribunal referred to an article provided by the sister of one of Applicants, and held that that newspaper article was not only unconvincing, but that it had been concocted to assist the Applicants' claims. I will refer to that finding shortly.
The tribunal did accept the evidence that the Applicant husband was probably among the people that were questioned by the security force, in order to establish their bona fides in relation to the assassination. The tribunal did not accept that the husband was a person implicated in the assassination, as canvassed in his visa application.
In reaching this conclusion, the tribunal noted that if the Applicant husband had been suspected in the assassination, he would not have been released, notwithstanding the bribe. The tribunal found it implausible that security forces would have released anyone who had been involved with the LTTE at that time.
The tribunal was not able to accept the evidence that the husband was required to report to the authorities on 14 June, as he said, or that there were any charges to be brought against him in relation to assisting the LTTE, or that his departure from Sri Lanka would be regarded as an escape.
The Applicant husband had put to the tribunal that his name had been placed with airport authorities. This, again, the tribunal found implausible, on the basis that if he had been a suspect he would not have been released from custody. The tribunal did not accept the Applicants' claims that the authorities were making inquiries about the husband.
The tribunal considered country information, including a report from the United States Department of State. The tribunal accepted that the security forces had mistreated women in custody, and observed that women had been mistreated and abused by security forces at checkpoints. The Applicant wife claimed at the tribunal hearing that she had been assaulted by the security forces who came to her home on the night of the assassination, after the Applicant husband had been taken into custody.
This was after their friends had visited them, the Applicant's home, when she told them of her concern that her husband had not come home, and those friends had then, themselves, left.
The wife asserted that security forces came to her home and searched for documents. The tribunal found this improbable because the family had no previous profile of concern about them, and on the night of the assassination, and before the husband made his alleged confession, which he said he did the following morning.
The tribunal did accept that the Applicant wife may have been assaulted at some time as she claimed, but in weighing up all the evidence about what actually took place between the 7th or 8 June, and 10 June, the tribunal found that it did not accept the Applicants' account. I will again return to the allegations of the assault.
The tribunal considered the evidence of the impact of the assault on the wife and the Applicant's son. The tribunal heard evidence that the son had suffered from a post‑traumatic stress disorder following the assault on his mother. The tribunal did not find that evidence credible. The tribunal did not find the Applicant parents' evidence of the events of

7 to 10 June were truthful.
It is the contention of the Applicant that the tribunal breached its obligation under section 424A of the Act; that it failed to disclose to the Applicant certain information, forming part of country information and media reports.
The ground advanced by the Applicants is that in considering this information, the tribunal did not accept the reliability of the Applicants' account surrounding the circumstances regarding their departure from Sri Lanka, and it is for this reason that the Applicants say that there was departure from section 424A of the Act, which amounted to a breach of procedural fairness. They submit that the tribunal relied upon the information in not believing the Applicants' account regarding the circumstances surrounding their departure from Sri Lanka.
The Applicants also contend that the tribunal failed to meet its obligation under section 425 of the Act, and failed to identify relevant issues arising in relation to the decision under review. On this ground the Applicants claim that the tribunal made adverse findings, or held adverse opinions. In relation to this ground, the Applicants contend that although the tribunal invited the Applicants to give evidence, it did not identify relevant issues arising in relation to the decision under review.
They say that the tribunal failed to raise issues with the Applicant upon which it made adverse findings. They contended the tribunal made adverse findings about the Applicants without giving them the opportunity to comment upon or produce material in respect of undisclosed adverse opinions held by the tribunal.
In particular, the Applicants contend that the tribunal failed to consider; (a) that the newspaper article produced ‑ in particular, the Applicants contend that the tribunal found that the newspaper produced was concocted for the purpose of supporting the application; (b) that the wife had lied about being sexually abused by the security forces whilst her husband was retained in custody on about 9 June, and the tribunal also found that the Applicants had planned their escape prior to 10 June 2000.
The Applicants contend that not only did the tribunal not comply with section 424A and 475 of the Act, but advised the Applicants that it had read the departmental file, and then purported at the conclusion of the hearing to identify matters of concern to it, which did not include those matters.
The Applicants contended that the tribunal took into account irrelevant considerations, namely subjective views on various issues that were not supported by evidence, and that the tribunal erred in giving evidentiary value to those subjective views of how the security forces in Sri Lanka would have behaved if faced with a person in the position of the Applicant husband.
The Applicants submit that the country information before the tribunal was a clear indication of the Applicant parents' accounts regarding the arrest and questioning ‑ the raid on their family home, the abuse of the Applicant wife, the bribe and the release from custody, and the flight from Sri Lanka ‑ were consistent with what happened at that time in Colombo, and were probable.
The Applicants assert that the tribunal made adverse findings against them on critical facts, for which there was no evidentiary support. In particular, the Applicants take issue with the tribunal's contention that; (a) security forces would not have released someone such as the applicant husband by way of payment of a bribe on condition that he return within a week; (b) that the Applicants had planned their departure before the event of 9th and 10 June 2000.
The Applicant submitted that the tribunal placed great weight upon the fact that their version of the event was implausible, notwithstanding that it was consistent with country information. They say that the tribunal's view is not supported by evidence. The Applicants contend that the tribunal decision is in breach of the rules of natural justice, and that the Applicants were mislead into thinking that their evidence on the specified issues had been accepted, and that there was, therefore, no need to make further submissions.
The Applicants also contend that the tribunal made misleading or inappropriate statements about the manner in which the tribunal put questions to the Applicants in relation to the dates on which certain events took place, and about statements made by the tribunal at the outset of the tribunal hearing, relating to cultural matters.
The Applicants also contend that the tribunal took into account irrelevant considerations, failed to address the Second Applicant’s claims, failed to review matters under section 414 of the Act ‑ in that they say the tribunal failed to review the decision of the delegate. They also contend that the tribunal breached section 420 of the Act.
As far as those allegations are concerned, it is fair to say that counsel for the Respondent, Ms McLeod, opposed the submissions made by the Applicants. She submitted that the submissions of the Applicants tend to be directed towards non‑reviewable errors of fact, and close examination of those matters will show that they are, in fact, nothing more than matters of fact. As is well‑known, an assessment of matters of fact is the province of the tribunal, not the subject of judicial review.
Ms McLeod told the court that the Applicants were Tamils, they had arrived in Australia on short‑stay visas, and that they had lodged an application for a teaching visa, dated 11 July 2000, and that was refused in October. However, they applied for a review on 26 October 2000.
At the Refugee Review Tribunal hearing, the Applicant referred to the fact of his arrest. The tribunal did not accept the Applicant husband and Applicant wife's version of the events that prompted their flight from Sri Lanka.
She submitted, and in my view correctly, that those findings are not reviewable. She also submitted that they were open to the Refugee Review Tribunal to find on the evidence. She said that the tribunal did not accept the husband's version of the arrest, or the wife's version of the assault. I'll refer to that issue again shortly.
She pointed out that at page 529 of the court book the tribunal was not saying that anything might have occurred was a positive finding. Findings of fact were open on the evidence. They do not disclose any error of law. She submitted, counsel for the Applicant, Mr Livermore, was taking statements out of context. She pointed out the routine questioning of the Applicants before they left the country was not, of itself, persecution, and there was no evidence of anything more than that happening if they were to return to Sri Lanka.

She submitted that on the country information it was open to the Refugee Review Tribunal to make a finding about the likely treatment of the Applicants upon their return to Sri Lanka.
Ms McLeod was of the view that the Refugee Review Tribunal's finding that an assault may have occurred on the wife was a matter of fact, and that all that happened was the tribunal did not accept the wife's evidence. There was no question that a finding on the credibility of evidence had to be put to the Applicants, but they were given, she submitted, the opportunity to answer the concerns.
In particular, Ms McLeod submitted a copy of transcript of the hearing ‑ and I admitted that into evidence and marked it as Exhibit 1.
Mr Livermore, of counsel, in reply, referred me again to the evidence of the circumstances or otherwise of the assault on the wife. As far as the factual finding on page 34 of the transcript, which relates to the circumstances of the assault on the wife, he submitted; (1) that the law was not correctly applied to that factual finding, and (2), that that was a jurisdictional error.
On considering those submissions, I am of the view that findings of fact remain within the area of the tribunal. It is not up to a court conducting a judicial review to substitute a conclusion that the court would take if the court were hearing that evidence.
The submissions made by counsel for the Applicants in dealing with factual matters, to my mind, largely do not persuade me that there has been an error of jurisdiction. I am not satisfied that it has been shown that the tribunal dealt with country information in any other way than is permitted by section 424A of the Act.
Having said this, there are three specific matters in the Applicants' submission that deserve further examination. First of all, there is the conclusion by the tribunal that ‑ at page 126 of the court book ‑ the Applicants had planned their escape. At about point 5 on the page the tribunal says:
In the context of all of the evidence, including the Applicants' convenient possession of visas for Australia, apparently obtained earlier to attend a wedding in which they were, in the event, unable to do, I find it very difficult to accept that all of the arrangements for departure were made in such haste on 9th and 10 June, and consider that their departure was planned well before this.
In my view that is a finding of fact that is open to the tribunal to make.
I turn now to the next paragraph on page 126 of the court book, where the tribunal says:
I have considered the article apparently produced by a sister of one of the Applicant parents. I find its content very unconvincing, and I consider that it has probably been concocted to assist the Applicants' claims. Even if it is genuine, it does not outweigh the concerns I have described with the Applicant parents' account.
To my mind this finding by the tribunal is problematic. It is one thing not to accept documentary evidence. It is another, however, to make a finding that one of the Applicants, or someone on their behalf, has concocted a document to assist the Applicants' case.
I have examined the transcript of the proceedings that form Exhibit 1, and I can find no evidence that this allegation, which goes directly to the credibility of the Applicants' evidence, was put to either Applicant.
I am mindful of the recent decision of Moore J in NAJO v The Minister for Multicultural and Indigenous Affairs [2004] FCA 356. That is an appeal from a decision of a Federal Magistrate. His Honour, at paragraph 28 of the judgment, refers to a rejection by the Refugee Review Tribunal of documents produced by an Applicant in support of his claim.
His Honour says:
Ultimately the tribunal may have a firm foundation for rejecting the letters as not being authentic. However, that is not the point raised in this ground, which concerns unfair processes ‑ see Re Refugee Review Tribunal ex parte Aala (2000) 204 CLR 82, particularly at paragraphs 59 and 80, and the judgments of Gaudron and Gummow JJ.
His Honour, in NAJO, went on to consider the judgment of the honourable French J in WAGU v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912. His Honour said:
The facts are similar and it is convenient to set out a passage which both refers to the relevant principle and its application to the facts. His Honour ‑ meaning French J ‑ said at paragraph 34 and following:
"It may well be the case that where a tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the tribunal by the applicant. There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse, but to complain of such an approach so to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional area."
In Re Minister for Immigration and Multicultural Affairs ex parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at page 70, paragraph 49:
"In a dispute adjudicated by adversarial procedures it is not unknown for a party's credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision maker enjoined by statute to apply in inquisitorial processes, as here, to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party."

If the critical passage in the reason of the tribunal be read as indicated above, the tribunal is reasoning that because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at an earlier stage, weighing the alleged corroborative evidence by the witness in question.

That may be a preferable method of going about the task presented by section 430 of the Act, but it is not rational to focus first upon the case as it was put by the appellant. Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility.
In such a case the failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision maker, in this case the tribunal, to invite comment on its thought processes on the way to its decision.
But where corroborative evidence is rejected on the basis of a finding of fraud or forgery, or some other positive basis which has never been put to the tendering party ‑ my emphasis ‑ there may be a failure of procedural fairness. Such a failure may have very practical effects, for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering parties' credibility.
In the present case there is no doubt that the tribunal made findings generally adverse to the credibility of the appellant.
To my mind the passages quoted support the Applicants' concern that the finding of a concoction, or a probable concoction, of a newspaper article is one that should have been put to the Applicants in order that they could answer that. To my mind it is not good enough to make an allegation of fraud or forgery or concoction in this case, and then seek to dilute it with the weasel word "probably".
This is quite different from not accepting documentary evidence. If a document is not to be accepted on the basis that it is a document that has been fraudulently or otherwise dishonestly produced, then adding the word "probably" will not save it from the scrutiny of the courts.

I am of the view that that, of itself, constitutes jurisdictional error.
There is, however, another matter raised by the Applicant which causes me serious concern. Page 127 of the court book the tribunal says:
I understand that the security authorities have mistreated women in the way claimed by the applicant. The United States Department of State has reported on such mistreatment of women in custody, and I have seen other reports of incidents when women have been similarly abused by security personnel at checkpoints. It is, of course, possible that women have been abused in the way claimed by the applicant during the searching of homes.
In a later paragraph on that same page, at about point 5, the tribunal member says:
I considered that the Applicant wife may have been assaulted at some time in the way she has claimed, but in the context of all of the Applicant parents' evidence about what occurred between 7th or 8th and 10 June, I am unable to accept that the circumstances of the assault are as she has claimed, and I am unable to be satisfied that anything which occurred was because of a reason in the Refugees Convention.
I should make it clear at this stage that the assault of which the Applicant wife complained was a sexual assault. As she said at page 34 of the transcript, line 39 onwards:
A. That was our bedroom. They came ‑ meaning the security forces ‑ they came and pulled all the clothes, and then one said "If you want to know about the whereabouts of your husband" and then they pushed me onto the bed and they raped me.
They both did this to you?--- Yes.
What this is – is an allegation of a sexual assault ‑ a rape, in as many words. The Applicant wife had asked that her husband not be present when she recounted this material to the tribunal. Clearly the way in which she was recounting this caused her some distress and embarrassment.
At page 35.35 of the transcript, tribunal member said:
Well don't you think he ‑ meaning the husband ‑ would have, when he knows that ‑ I mean, don't you think he ‑ it's up to you.

I am not going to tell him. I am not going to tell him, but don't you think he would have worked it out.
Meaning that he would have worked out that the wife had been raped. The wife said "He wouldn't work it out". Tribunal member:
What?--- He wouldn't work it out ‑ what I didn't tell, (indistinct).
The answer to the indistinct manner can be gleaned by the following exchange:
Why would you be scared?---He won't like me after that.
Look, he probably worked it out, you know. I think he's probably worked it out. But it's too painful to talk about but, you know, he would probably ‑ I mean, he said things in the submission, you know, he wrote me a letter, he wrote the tribunal a letter. He says "She wants to divulge everything that happened to her".
The tribunal went on to reassure the wife:
But I think if your family is very loving then, you know, you probably could tell him, but I can understand why you wouldn't want to tell your husband that, it's very personal?---No, to be frank, if I tell him, he'll be worried. He might think like if our custom, you know, if this happens to a lady no‑one respect her.
That's a horrible custom?--- (Indistinct).
It's a horrible custom because that isn't fair. I mean, you know, nobody asks to be raped in that way, it's not women's fault that that happens?--- Yes, it's not (indistinct) my fault.
Later on in the hearing, the husband came back into the hearing room. One can only say that the tribunal member took a very sympathetic view towards the wife's account of having been raped. Page 44 of the transcript, at about point 4, line 16, she says to both parties:
You've both given very clear evidence that you were picked up one day, released the next, and left the country the next day, so I have to think carefully about whether or not I think that is plausible. You know, we are talking about a very precise series of events which you've both described, and they happened on consecutive days, and now you are saying "There were two days at the end", so I'll have to think carefully about that. One other thing too, is about the frequency about which your house was searched, the authorities came to your home during the time before 2000.
At no time does the tribunal member express any disbelief that the wife is concocting her account of a sexual assault. In fact, in her judgment she says, page 127:
I consider that the applicant wife may have been assaulted at some time in the way she has claimed.
What does that mean? Does that mean that she was raped by members of the security force, but not on the date that she said; that she was raped by security people on another day? Does it mean that she was raped by someone else?
It is a matter of extraordinary concern that the tribunal member could come to such a finding involving a rejection of evidence by a woman about such a serious matter as a sexual assault upon herself, without expressing anything other than apparent empathy toward the person who was the alleged victim of the assault.
Courts throughout Australia, in the criminal jurisdiction, who have heard the accounts of women and men, for that matter, and children, who have been the subject of the sexual assault, would no doubt find that entire sequence of events as difficult to comprehend as I do.
In my view, the finding by the tribunal, and the way in which the evidence was dealt with, constitutes a breach of procedural fairness; that an applicant could have been misled into believing that she was giving a sympathetic account of having been sexual assaulted when the tribunal was, in fact, rejecting that very evidence on such a sensitive matter, is clearly a breach of the rules of natural justice.
The Applicant should have been given an opportunity to reply to that particular concern.
I find, therefore, that there has been a jurisdictional error. I grant the application and I make the following orders: (1) that a writ of a certiorari is to issue bringing into this court and quashing the decision of the Refugee Review Tribunal dated 22 August 2002; (2) that a writ of mandamus issue requiring the Refugee Review Tribunal to rehear and redetermine the matter according to law.
I require a transcript of my reasons for this decision. Time to lodge an appeal is not to run until publication of written reasons for the decision.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 11 March 2005