(a) The applicant's argument
16 In their initial written contentions dated 2 April 2001, the applicant's legal representatives elaborated these particulars as follows:
"10. The [T]ribunal's summary of the applicant's claims and the evidence given at the hearing appears at CB73-76. That summary included an extract [at CB73-74] of what the [T]ribunal described as '… what appears to be an accurate summary of the applicant's claims to date' by the delegate. The [T]ribunal, inter alia:
· did not '… accept the applicant's central claim, ie that he had a Tamil friend who lived with him and who was arrested as a terrorist and disappeared.'. It noted that '… the applicant has presented no independent evidence to indicate that the friend existed, was detained by the authorities, was shown to have some connection with the LTTE or disappeared as a result of his arrest. He has produced no press reports, or reports from human rights groups about this matter' [CB83];
· against this backdrop, found the '… applicant's personal account of his claims … not convincing' [CB83];
· found that, 'Given that I do not accept that the applicant came to the attention of the authorities through his friend, I do not accept that he was detained and tortured by the authorities as he claimed' [CB83-84];
· found the applicant's actions after his detention 'unconvincing', including that given the existence of lawyers within his extended family he had not made representations to the relevant authorities;
· citing country information extracted at CB80-81, found it '… implausible that the security forces would impute an LTTE profile to a Sinhalese in the circumstances in which the applicant described' [CB84];
· given that the [T]ribunal did not accept that the applicant's Tamil friend disappeared in the circumstances which he described, it '… did not accept that the Tamil's relatives or the LTTE subsequently threatened the applicant and his mother in the way that he described' [CB84];
· did not consider that either the letter from the LTTE or the doctor '… helps his case. The letter from the doctor does not confirm that the applicant was tortured, nor does it indicate the circumstances of how the injuries were sustained. The letter said to be from the LTTE is completely unconvincing. It is written in English, and in a very polite tone…. When I consider these matters together with advice from DFAT about the extent of document fraud in Sri Lanka [at CB82] I am not prepared to place any weight on these documents; [CB84-85]. [There had been no attempt to have any Departmental assessment of the authenticity of the documents or to contact the doctor.];
· found that it was '… not satisfied that the applicant has ever been pursued by the authorities for reason of his imputed support of the LTTE, nor that he has been pursued by the LTTE for reason of his real or imputed anti-LTTE views … there is not a real chance that the applicant will be persecuted for either of these reasons, or for any other Convention reason' [CB85]."
17 After referring to the course of High Court authority explaining the meaning of the Convention, the applicant's representatives contend as follows:
"22. [It is submitted, for the reasons advanced below, that in all the circumstances of this case, the Tribunal's reasons, read as a whole, are not such that it is clear that it could have had the 'confidence' in its findings as contemplated in Guo ….]
…
24. It is submitted that the [T]ribunal misinterpreted and misapplied the test of 'well-founded fear' of persecution in that its approach to the assessment of:
· whether or not past events (eg Tamil friend's arrest/his own detention and torture/LTTE threats) claimed by the applicant had occurred;
· any likely imputation of political opinion to the applicant by the security forces/LTTE; and
· a 'real chance' of persecution;
was conducted in a manner not in accord with the authorities.
25. The [T]ribunal's central platform upon which it rejected the applicant's claims as to what had happened was its rejection of the '…applicant's central claim…' for the reason that independent evidence (press/human rights group reports) as to the existence of the Tamil friend and his arrest and disappearance had not been produced by the applicant [CB83]. It is submitted that the reasons, read as a whole, evidence an assessment by the [T]ribunal of 'well-founded fear' of persecution which was infected by this central platform.
26. The [T]ribunal, in effect, required independent attention and reporting to have been undertaken in the case of the claimed arrest and disappearance of a single young Tamil male in Colombo in circumstances in which such arrests and disappearances cannot be discounted and cannot, in all cases, be expected to have been detected by press/human rights groups. In particular, when the person concerned is not a leader of the LTTE or otherwise well-known it is less-likely that such a disappearance will be 'reported' in the sense required by the [T]ribunal as a pre-condition of its acceptance of such a claim.
27. It is respectfully submitted that this approach is error of the kind identified by Mansfield J in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1706 (27 November 2000) at paragraphs 37-40 as being contrary to the direction given by the High Court in Chan and Guo. Similar considerations apply to the [T]ribunal's decision to place no weight on the doctor's letter and the LTTE letter proceeding upon the assumption (without any attempt at independent verification, but following general DFAT advice of the extent of document fraud in Sri Lanka) those letters were not genuine. [See also "W 148/00A" v Minister for Immigration and Multicultural Affairs [2001] FCA 679 for the proposition that if in making findings about past events relied upon by the applicant, the Tribunal grounds its decision upon a question of credibility, the Tribunal should not be taken to have made a finding on credibility by simply asserting that a claimed event is 'implausible' or 'highly unusual'. (par 18, 67).]
28. The [T]ribunal's application of an incorrect evidentiary test in its assessment of what had already happened, it is submitted, infected its assessment of the applicant's case. The subsequent findings of the applicant's claims as 'unconvincing' or 'implausible' are anchored in, and coloured by, this initial rejection.
29. In so doing, the [T]ribunal also misinterpreted and misapplied the law:
· as to the approach to imputation of political opinion; and
· the assessment of a 'real chance' of persecution if the applicant were returned to Sri Lanka.
30. In addition, in the context of its approach to the 'applicant's central claim', the reasons (read as a whole) do not, it is submitted, evidence the relevant confidence by the [T]ribunal in its findings pertinent to its consideration which would render unnecessary the employment of the 'What if I am wrong?' approach to such assessment: Wu, Guo.
31. Accordingly, it is submitted that the [T]ribunal erred in law, within the meaning of s 476(1)(e), in that it misinterpreted and misapplied, the 'well-founded fear' test."
18 The reference to Singh, above, is to the following (at [37] - [40]):
"The applicant pointed to some other matters which he submitted, tend to indicate that the Tribunal failed properly to consider whether the applicant has a well-founded fear of persecution for a Convention reason. It gave no weight to either the letter or the affidavit in part because they were photocopied documents. I understand the Tribunal's reference to the 'problems associated with photocopies' as being a reference to its discussion on that topic in relation to the warrant, as set out in par 14 above. As noted, it indicated that it would give no weight to photocopied documents unless they were 'unequivocally authenticated'. That was not a view adopted in relation to these particular documents, having regard to their contents and surrounding circumstances; it was a view expressed as applicable to all photocopied documents. It was one of the several reasons for giving no weight to the contents of the letter and the affidavit, and so must be taken to have operated upon the decision in that regard. Both the letter and the affidavit are significant because, if accepted, they each purported to contain first hand information. In the case of the letter, that was to verify the existence of the warrant and that the police were seeking to enforce it. In the case of the affidavit, that was to verify the arrest of the applicant in 1995 as well as that the police were still seeking the applicant. The finding of the Tribunal that Gill is not the surname of the applicant was itself based in part upon the fact that it placed no weight upon either the letter or the affidavit. Clearly, the decision to place no weight upon that material also was significant as it otherwise tended to confirm matters which the applicant claimed, and in respect of which the Tribunal rejected his claims. Those matters included that he had not been arrested in 1995 and that the police were still seeking him.
In Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574-576 explained the process by which the Tribunal came to a decision as to whether there is a real chance that a visa applicant will be persecuted for a Convention reason if that person were to return to the country of nationality. The Tribunal generally should make findings about past events, and if those past events include adverse treatment by the authorities the motivation of the authorities in penalising the visa applicant in relation to those past events. Those findings may then be used as the basis of the conclusion whether there is a real chance of future persecution. Their Honours added at 574-575:
'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.
…
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.'
Later, in their reasons, their Honours added at 576:
'It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not tha[t] 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 this matter, the Tribunal has found that the applicant was not arrested and then mistreated in 1995, and then released. It has also found that the warrant is not genuine, and that the authorities have not in the recent past been seeking the applicant. Those findings are relevant to determining the chance that he may be arrested and mistreated if he were to return to India. It has entirely discounted the prospect that those past events have occurred, in determining whether there is a well-founded fear of persecution. And it has done so for the reason, inter alia, that evidence directed to those facts has not been unequivocally authenticated. In my judgment, the application of that evidentiary test for the giving of weight to the letter and to the affidavit is not one which the Tribunal could properly apply to the determination of whether past events have occurred as claimed by the applicant. To have applied that test involves the Tribunal having determined the degree of probability that those past events had not occurred on an incorrect basis, so as to have infected its determination of the chance that those events, or similar events, will occur in the future. I have accordingly reached the view, in this instance, that the Tribunal has failed to determine whether the applicant has a well-founded fear of persecution for a Convention reason in accordance with the direction of the High Court in Guo and Chan. I consider that its failure to do so amounts to an error of law, so as to enliven the ground of review under s 476(1)(e) of the Act."
19 The reference to "W/148/00A", above, is a reference to the following statement made by Lees J (at [18]) and Tamberlin and R D Nicholson JJ (at [67]):
20 In his dissenting judgment, Lee J, who proposed that the appeal be allowed, said (at [18]):
"As stated by Tamberlin and R D Nicholson JJ, where the Tribunal purports to ground its decision on a question of credibility the Tribunal will not have made a finding on credibility by simply asserting that a claimed event is 'implausible' or 'highly unusual'. In that regard I repeat what I said in Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 at [26]-[40], in particular, the risk that decisions in these matters may be moulded to turn on so-called issues of credibility."
21 The majority, Tamberlin and R D Nicholson JJ, said (at [67]):
"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. 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. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant."