33 In its reasons for decision the Tribunal set out the requirements of s 91R. The Tribunal did not determine that the application for review had to fail in any event by reason of the operation of that section. It is to be assumed, therefore, that the Tribunal was satisfied that if the appellant's claims were accepted the requirements of s 91R would be met, in that it would be established that the appellant had a well-founded fear of being persecuted (as that term is to be understood by operation of s 91R) for a reason specified in the Convention.
34 On the hearing of the appeal the Minister did not contend that the Tribunal erred in that regard. However, in the course of argument some attention was given to the question whether, if the appellant's claims had been accepted by the Tribunal, there would have been a "Convention reason" for the feared persecution. It is appropriate to say something about that issue.
35 It is the appellant's argument that she fears persecution for reason of political opinion imputed to her by the LTTE. If the appellant's claims were accepted it would seem to follow that the reason for the persecution that had occurred, and may occur in the future, would be political opinion imputed to her by her persecutors.
36 The object of the LTTE is to gain a political result by armed insurrection and to further that object by instilling fear in the Sri Lankan community by acts of violence and, in particular, by assassinating persons politically opposed to the LTTE. The purpose of such acts is to suppress actual or potential opposition to the movement's aims.
37 The events described by the appellant and attributed to the LTTE, would be consistent with the known manner of operation of that organisation. There would seem to be little cause to doubt that the described events could reflect a belief on the part of the LTTE that an informant against the LTTE would be a person opposed to the political aims of the movement.
38 Such a person may be seen by the LTTE to be acting pursuant to political opinion and to be a threat to the LTTE's political objective. It would be irrelevant that, in fact, such a person held no political opinion, the perception of the persecutor being the relevant test. (See: Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1 per La Forest J at 38-39; Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, 45-47; Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 173, 177-178; V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355; C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366, 372-375; Minister for Immigration and Multicultural Affairs v Y [1998] FCA 515; W68/01A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 148).
39 It would be an erroneous approach to treat the events of persecution described and said to have been conduct carried out on behalf of the LTTE, as criminal acts done by individuals without regard to the political considerations or motives of the LTTE. (See: Minister for Immigration and Multicultural and Indigenous Affairs v Singh (2002) 209 CLR 533).
40 The claims of the appellant, therefore, were capable of demonstrating that the persecution feared by the appellant in future, if she were returned to Sri Lanka, was persecution for reason of perceived political opinion. The Tribunal did not err in so treating that material.
41 The role of the Tribunal in conducting a review under ss 414 and 415 of the Act was to assess whether, if returned to Sri Lanka, the appellant would have a well-founded fear of persecution for reason of political opinion. A fear of persecution is a well-founded fear if it is shown, by past events or by the prospect that such events may occur in future, that there is a risk that a person may suffer persecution if returned to the country of nationality. The risk is described as one that is real and not fanciful. It is not a requirement that the risk be measurable in a particular degree of likelihood or probability before the risk may be characterised as real. (See: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per McHugh J at 417).
42 The Tribunal, therefore, had to determine whether it would be possible that if the appellant were returned to Sri Lanka events involving the appellant may occur which would constitute persecution of the appellant. If so, the Tribunal would be satisfied that the appellant met the prescribed criterion and, pursuant to s 65(1) of the Act, the visa applied for had to be granted. If the material did not show that such a risk existed the visa had to be refused.
43 The Tribunal's findings in that regard read as follows:
'In weighing all the material before it the Tribunal does not find the applicants' story at all credible. The Tribunal does not accept that the applicants reported Tamils to the police, that they were threatened in any way by LTTE cadres or that they ever went into hiding for any reason.'
44 The Tribunal reached the conclusion that the appellant's story was not credible by finding parts of the appellant's claims to be "implausible". For the word implausible to be used in the foregoing sense it must mean without appearance of truth or acceptability. (See: Shorter Oxford English Dictionary, Oxford 3rd Edn. "implausible").
45 The Tribunal said it was implausible that the names of the appellant and her husband would have been provided by police to persons suspected of involvement with the LTTE or that the makers of the threatening calls would have identified themselves to the appellant or her husband as members of the LTTE.
46 With regard to the first point it was not the appellant's case that the police had so acted. The possibility that from time to time LTTE personnel in Colombo could obtain such information could not be discarded as absurd or fanciful. Furthermore, it may be thought to have been more likely than not that the makers of such threats would seek to have it understood that the calls spoke with the force of the LTTE. In any event the appellant did not assert that callers identified themselves as members of the LTTE. The appellant said that the calls were made by Tamils speaking in broken Sinhalese and that she and her husband assumed that the persons making the calls were associated with the LTTE.
47 The Tribunal then stated that it was "entirely implausible" that the police would give the names of the appellant and her husband to newspapers to identify them as informants against terrorists, the Tribunal concluding that on the appellant's account there was "no other apparent conduit for such information".
48 It was not the appellant's case that her name, or that of her husband, had been published in newspapers as police informants. Excerpts from newspaper articles were part of the material submitted by the migration agent to the Tribunal by the letter dated 25 June 2002. Those excerpts dealt, first, with an account of the arrest of LTTE members "as a result of information given by a resident in Maligawatte" and, second, with a complaint to Maligawatte police by a resident of Maligawatte, the appellant's husband, to the effect that death threats had been received from a group of unidentifiable persons alleging that he had provided information to the police about "terrorist tigers". The Tribunal stated that the latter newspaper article indicated that the appellant's husband had been the source of the newspaper report and noted that the appellant and her husband had denied to the Tribunal that they had had any contact with the newspaper. The Tribunal then said that having regard to the newspaper articles being undated and having no "newspaper banner"; and to the purported newspaper excerpts not being submitted by the appellant until June 2002; and to the appellant and her husband denying that the husband had been the source of a newspaper article that identified him; and considering "the contrived tone of the newspaper articles" (i.e. of English translations thereof) it found that the articles were "not genuine". It is not clear what the Tribunal meant by "contrived tone" of the translated items, the Tribunal providing no explanation thereof. Furthermore, the Tribunal did not address the inherent inconsistency in a finding that the appellant and her husband fabricated a newspaper article to assist their case when the material said to be concocted included an account that was at odds with the story they intended to present.
49 The Tribunal then referred to some inconsistencies between the accounts of the appellant and her husband, who gave evidence through an interpreter, as to the places at which they had lived after they left their home in Colombo to reside with various relatives before they departed for Australia in August 2000. That was a matter the Tribunal was entitled to take into account in assessing the truthfulness of the appellant's claims, but in doing so the Tribunal would have to have regard to the fact that the differences in recollections concerned events that were said to have occurred more than two years previously. Such an inconsistency in recollection may be a pointer to a dishonest account but in the absence of other material able to support that conclusion it will be an unsatisfactory foundation for a finding that the whole of an applicant's claims are untruthful. I will return to this issue later in the reasons when discussing the operation of s 424A of the Act.
50 The Tribunal then found that it was implausible that the LTTE would threaten harm to the appellant or her family and not carry out the threat. The Tribunal said as follows:
'The LTTE is notorious for its resort to violence and on the applicants' own evidence, and considering that they continued in their employment, there was ample opportunity to locate them and eliminate the alleged threat posed by them if any LTTE cadres had felt any need to do so.'
51 What the Tribunal sought to convey by that passage is not easily understood. Obviously a finding that a threat to cause harm had not occurred if the threat had not been carried out would be contrary to commonsense. Indeed it may be thought to have been well-known that the use of threats of harm by the LTTE was an important part of its operations. The knowledge of the recipient of such a threat that the LTTE has, as the Tribunal acknowledged, the capacity to carry it out, makes the use of such a threat a powerful weapon for the organisation to use in pursuit of its aims.
52 The Tribunal then turned to other documents relied upon by the appellant in support of her claims. The Tribunal described the documents as having been "belatedly submitted". Whether the Tribunal considered the documents to be objects of recent invention is not discussed. The Tribunal did not refer to any explanation provided by the appellant as to when she gave the documents to the migration agent for transmission to the Tribunal, discussed earlier in these reasons. The Tribunal stated that given the "lack of credibility of the [appellant's] claims" concerning alleged threats by the LTTE all of the foregoing documents could be disregarded, describing them as "contrived and self-serving", "contrived in order to bolster false claims to refugee status", or "contrived in an endeavour to give credence to false claims of threats from the LTTE".
53 It is necessary to deal in detail with the foregoing documents. First, I turn to the documents discussed earlier in these reasons, namely, photocopies of purported extracts from pages of a Sri Lankan newspaper, or newspapers, printed in the Sinhalese language and including several photographs. English translations of excerpts from the extracts were provided. Obviously in the absence of further authoritative material the Tribunal may not have been convinced as to the authenticity of those extracts but the failure of the Tribunal to be convinced is not a determination on probative material that the documents are fraudulent.
54 The next documents are two printed warnings (with no addressee) on purported letterheads of the LTTE and dated 19 April 2000 and 9 May 2000. The warnings are printed in English and the documents bear the endorsement "(Released by the International Secretariat of LTTE, 211 Katherine Road, London E6 1BU, United Kingdom. Tel: 02085034294)". The LTTE maintained a secretariat at that address until February 2001 when it was declared to be a proscribed organisation in the United Kingdom. (See: DBS Jeyaraj "LTTE shifts headquarters from London to Wanni" www.lanka.net/sundayleader/ 2001/Mar/18/news.html). The Tribunal said it noted and gave weight to "the self-serving and contrived tone" of the document. The Tribunal found it implausible that the LTTE would issue a written warning and then fail to act on its threat. The Tribunal stated that the correspondence was "contrived and inconsistent with the actual behaviour of the LTTE" and concluded that it was "not genuine" and had "been produced in an attempt to underpin false claims to refugee status". What the Tribunal meant by the "self-serving and contrived tone" of the letters is not elaborated. The real foundation for the Tribunal's conclusion appears to be its view that there could not have been a threat of harm to the appellant if the threat was not carried out and, therefore, the appellant had engaged in fraud and forgery in presenting the documents.
55 The appellant also relied upon a letter to the appellant from a preparatory school in Colombo dated 19 May 2000. It referred to a discussion between the appellant and the Headmaster of the school about threats to the safety of the appellant's family. The Tribunal found this letter to have been "contrived in an endeavour to give credence to false claims of threats from the LTTE". What the Tribunal meant by that characterisation of the document is unclear but it appears to imply that an inference had been drawn by the Tribunal that the document had been fabricated by the appellant. It was not the Tribunal's position that the document had been "contrived" by the school and the appellant jointly or that the appellant had made false statements to the Headmaster for the purpose of having the school construct such a letter. The letter purported to be on the letterhead of "S.Thomas' Preparatory School" and set out the address and telephone number of the school and the name of the Headmaster. If the letter had been issued by the school the Tribunal's assessment of credibility of the appellant's claims was unlikely to stand.
56 At the hearing on 3 July 2002 questions put to the appellant by the Tribunal implied that the letter lacked authenticity in that the name of the school in the printed letterhead, in the English language, was plainly incorrect in that it used "S." as an abbreviation of the word "Saint". The Tribunal repeated that implication by applying the qualification "(sic)" to the name of the school when reciting it in the reasons. It is apparent that the Tribunal was prepared to treat the document as false by reason of the form of the letterhead, considering the perceived error to be a mistake that an institution of education would not make. The Shorter Oxford English Dictionary states that "S." and "St." are alternative abbreviations for "Saint".
57 The next document was a copy of a letter dated 10 April 2000 from the appellant's husband to the Regional Telecom Engineer at Sri Lanka Telecom in Colombo. The letter identified a telephone number and referred to threats received on that number from a group of people, presumed to be members of LTTE, and stated that the children of the family had been affected by the calls. It requested that action be taken. The Tribunal also treated this document as "contrived to give credence to false claims". Again no facts relied upon for that finding were identified.
58 An additional document was a letter from tenants to whom the home of the appellant and her husband had been let by the appellant's sister at some time after the appellant and her husband left Sri Lanka in August 2000. The letter is dated 2 August 2001 and refers to threats received by the tenants from unknown people, threats said to have been directed, in particular, at the appellant's husband. The tenants advised they could no longer stay in the house and sought a return of bond monies. The Tribunal found that letter to be "contrived and self-serving". Obviously the letter could only be so described if it were fraudulent. If the letter were genuine the Tribunal's conclusions as to the appellant's claims could not be sustained. No facts supporting a conclusion of forgery were alluded to by the Tribunal. The letter provided the name and address of the tenant.
59 Apart from a number of letters received by the appellant and her husband from relatives in Sri Lanka, there were two other documents of importance, the authenticity of which could have been easily ascertained.
60 First was a letter purporting to be from the Priest-in-Charge of the Nugegoda Baptist Church dated 10 May 2000. The letter appeared to confirm, in some degree, consistency in the appellant's claims. The name of the priest and the address and telephone number of the church are provided in the letter. The Tribunal made no finding about the document in its reasons but it is to be assumed that the Tribunal treated the document as a fraudulent.
61 Second was a document described as an extract from the "Information Book of Maligawatte Police Station". Whether the document is an English translation of a Sinhalese record is unknown but it purports to record details of a complaint made by the appellant's husband on the 20 April 2000 that death threats had been made against the family and that police assistance was sought. The document sets out the name and number of the police constable recording the statement and the date and time of the report and the page and paragraph number in the report book. Given the importance of the document to the appellant's claims if the document were a true record of an entry in a police occurrence book, and given that the genuineness or otherwise of the document could have been established comprehensively by prompt investigation, the failure of the Tribunal to take that step having regard to the seriousness of the findings of fraud, forgery and perjury it was prepared to make against the appellant is difficult to follow.
62 In making those findings the Tribunal made no reference to the foregoing document. It is to be assumed that the Tribunal considered that it was able to disregard the document by reason of the findings of implausibility it had made in respect of some elements of the appellant's account.
63 Section 424 of the Act expressly empowers the Tribunal in its conduct of a review to get any information that it considers relevant. Section 427(1)(d) of the Act authorises the Tribunal to require the Secretary to "arrange for the making of any investigation … that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation …". WALS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1642 at [9] provides a recent example of the exercise of that power.
64 The authenticity of the letter said to have been issued by the preparatory school could have been ascertained without difficulty. Similarly, the truth or otherwise of the purported letter to Sri Lanka Telecom; of the record of complaint at the Maligawatte Police Station; and of the letter from the Nugegoda Baptist Church could have been established with ease. To determine whether the newspaper extracts and letter from purported tenants were genuine may have taken more time but would not have imposed an unreasonable task on the Secretary. No doubt if circumstances showed such steps to be appropriate the Secretary could request assistance from relevant authorities in Sri Lanka, using official channels for that purpose if necessary.
65 Having regard to the importance of the foregoing documents to determining whether the appellant's claims were to be accepted; the significant public interest in discovering whether fraudulent documents had been used in the application; and the ease which enquiries could have been made to test the authenticity of the documents presented, it is surprising that the Tribunal failed to exercise the discretion available to it under the Act to have the Secretary conduct an appropriate investigation.
66 This was a case in which the power available to the Tribunal should have been used, if the Tribunal were to be seen to be exercising its powers, and making decisions, in a fair and even-handed manner. (See: Minister for Immigration and Multicultural and Indigenous Affairs v Singh (1997) 74 FCR 553 per Black CJ, von Doussa, Sundberg and Mansfield JJ at 561).
67 It should be observed that the ultimate decision in Singh turned on limitations of the grounds for an application to this Court for an order of review under s 476 of the Act, as it then stood, and did not consider whether constitutional writs may issue for "jurisdictional error" occasioned by failure of the Tribunal to act in the manner authorised by the Act. (See also: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ, McHugh J at [51]). It is to be noted in passing that the ground for the application for the issue of constitutional writs in Eshetu was restricted to "Wednesbury unreasonableness" and "jurisdictional error" was not relied upon. (See: Eshetu per Gleeson CJ, McHugh J at [39]-[45]; Gaudron, Kirby JJ at [102], Gummow J at [107], [145]-[147]).
68 The implied finding underlying the Tribunal's decision was that the appellant and her husband had constructed an elaborate fraud before they left Sri Lanka. If that were so there was substantial public interest in having that fraud exposed and, it may be assumed, a particular interest on the part of the Minister in obtaining information on whether the appellant and her husband had fabricated the documents or had obtained them from a source which manufactured such materials on demand, a circumstance of considerable importance to due administration of the Minister's Department.
69 That is to say, the confluence of the need for the Tribunal to provide a fair proceeding to the appellant with the public interest in an inquiry being undertaken into the provenance of the documents, made plain the reasonableness of the Tribunal exercising a power to have the Secretary to arrange for such an inquiry to be conducted. The Tribunal was directed by the Act to undertake inquisitorial procedures on behalf of the Executive and was empowered to take such steps necessary for that purpose whilst observing the requirements of procedural fairness. (See: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72at [23]-[24], [26]).
70 At the hearing conducted on 3 July 2002 the appellant informed the Tribunal that her employment as a staff member at the United States Embassy in Colombo entitled her to apply, on behalf of herself and her family, for admission to the United States upon attaining 15 years service. The appellant informed the Tribunal that but for the threats of harm referred to, the appellant and her husband would have remained in Sri Lanka until the appellant completed the required period of service and the entitlement would have been exercised. According to the information provided by the appellant in the visa application 15 years service would have accrued by February 2002. That is to say in August 2000 when the appellant and her family left Sri Lanka for Australia, only 18 months of the period remained to be served.
71 If the belief of the appellant that she had such an entitlement was well-founded, that circumstance had to be given due consideration by the Tribunal in assessing whether it was either likely or probable that the appellant and her husband would construct a fraudulent scheme to attempt to obtain entry to Australia rather than wait 18 months for a right to enter the United States. The Tribunal did not address any of the foregoing points.
72 The difficulties faced by the Tribunal in conducting the review of a decision to refuse a protection visa are obvious. The material that an applicant is able to produce in support of an application is likely to be limited and assertions by the applicant as to the occurrence of events in the country of nationality may be difficult to test. The Tribunal may tend to rely upon impressions on an applicant's case formed from perusal of the relevant file and a truncated hearing process. Notwithstanding the foregoing the irreducible requirement upon the Tribunal throughout is to perform its functions by procedures that are fair so that "the practical requirements of fairness" appropriate for application of the rule of law are observed notwithstanding that the Tribunal is not exercising judicial power and is an inquisitorial body carrying out an administrative function on behalf of the Executive. (See: R v Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 WLR 242 per Sedley J at 258; VEAL at [10]).
73 Notwithstanding the difficulties in the task undertaken by the Tribunal a process that was practically fair had to be followed. The Act seeks to maintain that safeguard by making it clear in s 430 that in making its decision the Tribunal must prepare a written statement that sets out the decision, the reasons for the decision, the findings made on any material questions of fact and refers to the evidence or the other material on which the findings of fact were based.
74 The following comments by Professor Goodwin-Gill ("The Refugee in International Law" Oxford (2nd Edn) at p 350) illustrate the importance of the provisions of s 430 in maintaining the integrity of decisions made in protection visa applications:
'Experience shows that the refugee status determination process is often unstructured. Decision-makers commonly rely on instinct and a feel for credibility, but with inadequate attention to the problems of assessment, identification of material facts, the weight of the evidence, and standards of proof. Even where decisions are felt to be correct, lack of confidence can result from systematically basing oneself on subjective assessments and failing to articulate clearly the various steps which lead to particular conclusions and the reasons which justify each stage. Such lack of confidence can increasingly undermine the capacity to deal effectively with the caseload, whatever the strengths or weaknesses of individual applications, and no matter how many unstructured decisions are in fact right.
. . .
Decision-makers … must be able to elicit relevant information from the narrative which is the applicant's story; to assess the credibility of applicants, witnesses and experts and to justify decisions on credibility; to weigh the evidence rationally; to determine and state what are the material facts; to apply the law to the facts; to take decisions and to justify those decisions by reference to reasons and principle. This in turn requires a degree of competence, even skill in the arts of questioning, interviewing, and examination, and the capacity to bring out the relevant elements from an individual narrative; the use of interpreters; the use of country of origin and jurisprudential information, and discrimination in the selection of such information; and evaluation and assessment.'
And (at 356)
'Refugee claims are not like other cases; they rarely present hard facts, let alone positive proof or corroboration. More often than not, the decision-maker must settle for inferences instead, that is, conclusions drawn from the generally inadequate material available. In the absence of hard evidence, the possibility of persecution must be inferred from the personal circumstances of the applicant, and from the general situation prevailing in the country of origin. The credibility of testimony is thus both an essential pre-condition to the drawing of inferences relating to refugee status; and a matter of inference in itself. Inference in this context does not mean the strict logical consequences of known premises, or the process of reaching results by deduction or induction from something known or assumed. Rather, it is the practical business of arriving at a conclusion which, although not logically derivable from the assumed or known, nonetheless possess some degree of probability relative to those premises.
Conjecture must be distinguished from inference, though the line is often difficult to draw:
A conjecture may be plausible but it is of no legal value, for its essence is that of a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is … always a matter of inference.
Thus, an inference as to the facts (what happened), or as to the credibility of the claimant (is he or she to be believed) must be based on the evidence and be reasonably open to the decision-maker.'
75 Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.
76 If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).
77 The obligation upon the Tribunal to conduct a fair hearing is confirmed by the terms of s 420 of the Act which, whilst instructing the Tribunal to provide a mechanism of review that is economical informal and quick and not bound by technicalities legal forms or rules of evidence, requires the Tribunal to ensure that the process of review is fair and just and states that the Tribunal must act according to substantial justice and the merits of the case.
78 It is to be noted that s 422B, introduced to the Act on 4 July 2002 by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) does not apply to this application. Section 422B states that ss 422B-429A of the Act are "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters [they] deal with". The transitional provision in Item 7 of Schedule 1 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 provides that s 422B applies only to an application for a visa made on or after 4 July 2002 and, therefore, it is unnecessary to consider whether the provisions of s 422B could have any bearing on the construction of s 420 to be applied in this case or upon the extent of the steps the Tribunal may have to take to accord procedural fairness to an applicant for review in a given case. (See: VEAL at [10]).
79 Obviously to meet the practical requirements of fairness the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily, nor by acting on preconceived prejudice or suspicion, nor in a manner that gives rise to a reasonable apprehension of bias on the part of the Tribunal. (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366-368, Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [27]). A breach of the duty so to act constitutes an error of law that vitiates the decision (Australian Broadcasting Tribunal v Bond per Deane J at 367).
80 The Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Eshetu per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]).
81 The decision of the Tribunal is to be based upon the formation of the state of satisfaction required by s 65 of the Act. That state of satisfaction, or of non-satisfaction, however, must be formed reasonably upon the material before the Tribunal. As stated by Iacobucci Jin Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [56] (referred to by Gummow J in Eshetu at [145]):
'An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, the Court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.'
82 The foundation for all of the foregoing is the requirement that the Tribunal act judicially by according procedural fairness (Australian Broadcasting Tribunal v Bond per Deane J at 366-367).
83 Analysis of the Tribunal's reasons by a less than probing examination shows that the Tribunal's decision is based upon statements that the appellant's claims are implausible on which the Tribunal purported to make findings that the appellant's husband provided no information to police about the suspicious movements in a neighbouring apartment; that no threats had been made to the appellant or her husband by the LTTE; and that the appellant and her husband "never went into hiding for any reason".
84 The consequential determination by the Tribunal that it was not satisfied that the appellant was a person who met the prescribed criterion of s 36(2) of the Act depended upon the reasonableness of the process followed to arrive at that decision.
85 The matters the Tribunal said were implausible and upon which the Tribunal based the foregoing findings were:
· the LTTE obtaining the names of the appellant and her husband from police;
· the LTTE identifying itself as the organisation that was making threats to the appellant and her husband;
· the police giving the names of the appellant and her husband to newspapers;
· the failure of the LTTE to carry out the alleged threats; and
· the giving of written warnings by the LTTE.
86 Putting to one side that, as discussed earlier in these reasons, the foregoing findings may have misstated part of the appellant's claims in some degree, the matters the Tribunal described as implausible were not claims disproved by proven facts nor events so contradicted by commonsense or human experience that they could be dismissed by the Tribunal as possible occurrences. The Tribunal engaged in speculation as to what a more likely course of events may have been but had no basis on which it could say that the events described by the appellant did not happen. The Tribunal may not have been persuaded that events occurred as claimed but it had no material on which it could convert such a doubt into a positive finding that the events had not occurred. The Tribunal, therefore, was bound to examine and deal with the documents and justify by appropriate findings of fact and reasoning therefrom its treatment of the material.
87 The reasons of the Tribunal suggest that the Tribunal relied upon a suspicion or impression it formed and that it did not, as required, undertake a rational examination of the material before it to ascertain whether its instinctive conclusion was supported by that examination.
88 As Brooke LJ stated in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470:
'For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.'
89 In its treatment of the process of review the Tribunal failed to accord the appellant the fair procedure required by the Act. There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be so characterised. This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant's claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]-[85]).
90 However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal's inquisitorial function.
91 If the Tribunal fails to carry out a review proceeding that accords with practical requirements of fairness, it conducts a proceeding, and makes a determination, that is not authorised by the Act. That is to say the Tribunal does not have "jurisdiction" or authority to purport to make such a decision and the decision will be subject to judicial review by issue of constitutional writs. (See: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34]-[37]; Kirby J at [116], [127]-[128], [138]).
92 The Tribunal's treatment of the documentary material relied upon by the appellant to support her claims tainted the review process with fundamental unfairness. For the reasons outlined above the decision of the Tribunal was not a determination made in accordance with the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 per Gummow, Callinan JJ at [32]; VEAL at [10]).
93 Although it is unnecessary to deal with the issue, counsel for the Minister properly drew the Court's attention to the further question whether the decision of the High Court in SAAP provided another ground on which the appellant may seek relief. Counsel for the Minister submitted that it did not.
94 In short, the question submitted to the Court was whether the conduct of the hearing by the Tribunal failed to observe the requirements of s 424A of the Act and, therefore, whether the Tribunal had purported to make a decision that was not authorised by the Act and must be set aside by reason of that failure.
95 Section 424A reads as follows:
Applicant must give certain information
'(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.'
96 In SAAP the High Court held that pursuant to s 424A the Tribunal was required to inform an applicant, in writing, of any material obtained by the Tribunal adverse to the applicant's application, (including information obtained in the course of a hearing conducted by the Tribunal under s 425 of the Act), that would be the reason, or part of the reason, for the Tribunal affirming the decision under review.
97 In the instant case the Tribunal received information from the appellant's husband in the course of the hearing on 3 July 2002 which information the Tribunal described as being "significantly discrepant" from the appellant's account as to where the appellant and her husband had resided in Sri Lanka in the several months prior to their departure for Australia.
98 It is not clear whether the Tribunal regarded that information as part of the reason why the Tribunal would affirm the delegate's decision to refuse the grant of a protection visa to the appellant. In its reasons the Tribunal merely stated that the evidence of the appellant and her husband was "inconsistent in some key respects".
99 If the Tribunal did rely on the alleged inconsistency as the reason, or part of the reason, for making its decision then, as confirmed in SAAP, the Tribunal was bound by s 424A of the Act to set out in writing the perceived inconsistency between the information obtained at the hearing and the details provided by the appellant in her oral account and in the written accounts attached to the application for a visa, and to invite the appellant to respond thereto.
100 It was irrelevant to that obligation that the appellant, or her migration agent, was present when the husband provided that material to the Tribunal. It was necessary for the Tribunal to give written notice to the appellant of how the Tribunal perceived that information would be the reason, or part of the reason, for affirming the delegate's decision and in the absence of that notice the decision made by the Tribunal was not authorised by the Act. (See: SAAP per McHugh J at [77]). Counsel for the Minister conceded that no written notice was provided to the appellant under s 424A and submitted that it was not required.
101 A similar issue would arise in respect of the husband of the appellant if he is to be regarded as an applicant for a protection visa under the Act. As noted earlier in these reasons (at [6]) under the terms of the Act and Regulations as they stood at the relevant time the visa applied for by the appellant's husband may have been other than a protection visa as defined in s 36 of the Act. If, however, the appellant's husband is to be regarded as such an applicant, and counsel for the Minister submitted that he was, then if at the hearing conducted by the Tribunal on 3 July 2002 the Tribunal obtained information from the appellant that the Tribunal considered would be the reason, or part of the reason, for affirming the delegate's decision to refuse the grant of a protection visa to the appellant's husband, it would follow even more plainly that the Tribunal did not observe the requirements of s 424A in respect of the review of that decision, the husband having been excluded from the hearing whilst the appellant provided information to the Tribunal and not having been informed thereafter by written notice, of the Tribunal's proposed use of that information in respect of his application for a visa.
102 Finally it is necessary to address the statement by the Tribunal in its reasons that in reaching the "ultimate conclusion" that the appellant and her husband were not "refugees" it had noted and given "weight" to "the availability of State protection in Colombo and elsewhere", said to have been referred to in the "United States Department of State Country Reports on Human Rights Practices (sic) 2000 ff". It does not appear that any of that material was put to the appellant or the migration agent for comment.
103 Two points arise out of the foregoing. First, the purported conclusion that there could be no fear of harm held by the appellant, or her husband, because of the level of "State protection" available in Sri Lanka was directly opposed to the Tribunal's finding that at the time the threats were said to have been made by the LTTE it was a matter of notoriety that the LTTE had the capacity to carry out such a threat of harm at any time and in any place in Sri Lanka. The United States Department of State Report to which the Tribunal referred pertained to the same period of time. The Tribunal did not examine and made no findings of fact as to whether circumstances in respect of "State protection" in Sri Lanka as at July 2002 had changed markedly since April/August 2000. The only comment made by the Tribunal of relevance to the point was an allusion to "the possible fragility of the current ceasefire in Sri Lanka"
104 Second, the reference to "the availability of State protection" in Sri Lanka was a comment made in passing by the Tribunal after the substantive reasons for the decision of the Tribunal had been stated. A comment made at the "heel of the hunt" and for which no supporting analysis is provided in the reasons as required by the Act cannot be taken to be the operative ground for the decision. The Tribunal did not discuss how the degree of "State protection" available in Sri Lanka could make fear of persecution at the hands of the LTTE an unfounded fear.
105 Furthermore, it cannot be said that the "weight" the Tribunal attached to the information to which it referred was not affected by the review procedure undertaken by the Tribunal being a procedure that failed to accord procedural fairness to the appellant as discussed above.
106 For either reason the purported finding of absence of well-founded fear of persecution based on the ground of "availability of State protection" cannot sustain the Tribunal's decision.
107 There was no "jurisdictional" foundation for the decision the Tribunal purported to make and the appeal must be allowed; the orders of the Federal Magistrates Court set aside; and in lieu thereof orders made that constitutional writs issue to quash the decision of the Tribunal and to direct the Tribunal to make a determination according to law.