Applicant M164/2002 v Minister for Immigration & Multicultural

Application foR review of the Tribunal's decision 128 The grounds for the original application in the Federal Magistrates Court were, perhaps understandably, expressed in less than perfect English. However their meaning is fairly clear. They were effectively that: 'The Tribunal was unreasonable in dealing with aspects of the claim for protection as follows: (a) The Tribunal's treatment of the claim the [appellant] has a real chance of persecution if the [appellant] returned to Sri Lanka. (p 8 of decision) (b) The Tribunal's treatment of the claim the [appellant] has well-founded fear of persecution because the [appellant] had given information to the police that led to the arrest of the members of the LTTE. (c) The Tribunal's treatment of the claim that the [appellant] would have a well-founded fear of persecution on the basis the article appeared in the newspaper clearly indicates the name of the [appellant] as one who gave information to the police that resulted in the arrest of the LTTE members. (d) The Tribunal's treatment of the claim that the [appellant] would have a well-founded fear of persecution by reason of the fact that the letter submitted by the prosecutor indicates that the tenants living at the residence of the [appellant] face continuous problems, including threats from the LTTE. (e) The Tribunal was in breach of s 47 and 65 and Part 7 of the Migration Act or otherwise in breach of its obligation failed to properly or at all to consider the [appellant's] claim for a protection visa in relation to the matters set out in the particulars herein. (f) The Tribunal failed to take account of the relevant considerations in relation to the matters set out in the particulars to ground 1 hereof.' 129 It was also asserted that the Tribunal had: '(a) failed to accord the [appellant] natural justice; (b) failed to follow the procedures required by the Migration Act; (c) asked the wrong question or misconceived her duty.' 130 In summary, the appellant complained that the Tribunal had not properly treated, or considered, various aspects of her case. The Chief Federal Magistrate considered these matters and concluded that the Tribunal had taken all of them into account and that the appellant was, in reality, seeking merits review. Her Honour concluded that no jurisdictional error had been demonstrated.

The appeal 131 The appellant appeals from that decision. However her notice of appeal alleges that the Chief Federal Magistrate committed jurisdictional error in not giving proper consideration to three specific matters, namely: · the appellant's claim that there was a real chance of persecution if she and her family returned to Sri Lanka; · that the appellant had given information to the police, leading to the arrest of members of LTTE; and · the newspaper articles which indicated that the appellant had given information to the police, resulting in such arrests. 132 These assertions are not readily identifiable as arguable grounds of appeal. In the absence of any such grounds it is, in my view, inevitable that the appeal should be dismissed. However, as the majority considers that the matter miscarried in the Tribunal and should therefore be remitted for further consideration, it is appropriate that I state my reasons for dissenting from that view.

Fear of persecution for a convention reason 133 The appellant claims that she is a person to whom Australia owes protection obligations in that she, '… owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country; … .' 134 The appellant claims to fear persecution for reason of her political opinion. She, at some stage, asserted that she had spoken out against the objective of LTTE, namely a separate Tamil state in Sri Lanka. However she has not suggested that LTTE members were aware of this or that it had anything to do with the persecution which she now fears. Her claim depends solely upon her assertion that she fears that LTTE will persecute her because of her actions in reporting the suspicious movements of other people in her unit block. 135 In most cases, persecution for a Convention reason involves harm or threat of harm by a government agency. The appellant makes no claim to fear persecution from the government of Sri Lanka. However a person may also satisfy the relevant criteria if he or she fears persecution from a non-government source and that the relevant government will be unwilling or unable to protect him or her from such persecution. Again, the feared persecution must be for a Convention reason. It may be sufficient that the person fears persecution because of a mistaken belief on the part of the potential persecutor that he or she holds a particular political opinion. It seems that the appellant's case, at its highest, is that she fears that LTTE members will persecute her for reason of their belief that she holds political views opposed to their goals and/or activities. The only evidence that any such belief is held by LTTE members is the allegation that she and her husband reported suspicious behaviour near their home and the alleged subsequent threats and surveillance, perhaps coupled with general perceptions concerning the propensity of LTTE members to use violence. As I have said, it is a terrorist organization and has, in the past, used violence in seeking to attain its goals. However, as I have also observed, there was, at the time of the Tribunal's decision, a cease-fire in force between the Sinhalese government and LTTE. 136 For present purposes, it is necessary to distinguish between fear of violence by terrorists as part of a campaign of terrorism and fear of persecution for a Convention reason. Terrorists frequently offer violence to members of a community for reasons which are not peculiar to the persons so affected. Fear of such random violence, or of the consequences thereof, is not fear of persecution for a Convention reason. To the extent that the appellant fears the consequences of LTTE terrorist activity, not aimed at her for reason of any view held by its members as to her political opinion, such fear is irrelevant for present purposes. Only fear of persecution motivated by her (perceived) political opinion is relevant. Of course, the distinction may not be easy to draw. However, in the absence of such distinction, any person having a well-founded fear of terrorism would be entitled to the protection available under the Convention, subject only to the availability of state protection. Quite apart from other difficulties peculiar to the appellant's case, a major problem for the Tribunal was to give effect to this critical distinction. Similarly, fear of violence by way of revenge would not necessarily constitute fear of persecution for a Convention reason. Again, the distinction may be difficult to draw in practice. 137 Had the Tribunal been satisfied that the appellant feared persecution by LTTE members for a Convention reason, it would have had to consider whether the appellant had a well-founded fear that the Sri Lankan government could not, or would not, protect her from such persecution. The question of state protection has been a relevant issue throughout these proceedings. The Minister's delegate found, at 3.22 of the reasons: 'In addition, there is insufficient evidence for me to be satisfied that the Sri Lankan authorities are unable to protect the [appellant] against any threat by the LTTE. She informed the police that she received the threatening calls, but never made any appropriate effort to avail herself of the protection of the State. It notes the following view of Professor Hathaway as expressed in The Law of Refugee Status, Butterworths Canada Ltd., 1991: "Obviously there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming: a refugee may establish a well-founded fear of persecution when the official authorities are not persecuting him if they refuse or are unable to offer him adequate protection from his persecutors … however, he must show that he sought their protection when he is convinced … that the official authorities - when accessible - had no involvement - direct or indirect, official or unofficial - in the persecution against him." There is no indication that the [appellant] fears harm from the State of Sri Lanka or has ever been denied protection by the State. According to US State Department Report 1999, there is a highly developed and long-standing legal system operating in Sri Lanka. The government respects constitutional provisions for an independent judiciary. In assessing the totality of the information provided by the [appellant], I find that the [appellant] does not face a real chance of persecution for a Convention reason. I also find that she has access to the law and to police protection if she should require it.' 138 In her application to the Tribunal, the appellant appears to have disputed this conclusion. However the Tribunal, at p 6 of its reasons, observed: 'The [appellants] said that the current peace process is fragile and the terms of the agreement have not been made public. They said that previous truces have broken down and that the LTTE cannot be trusted, even not to use the ceasefire period to rearm. They said that even recently there have been reports of arms shipments by the LTTE and of conscription in the eastern provinces of children.' 139 At p 8 of the reasons, the Tribunal continued: 'In reaching its ultimate conclusion that the [applicants] are not refugees the Tribunal further notes and gives weight to the availability of State protection in Colombo and elsewhere (see, United States Department of State Country Report on Human Rights Practices, 2000 ff). In light of the availability of State protection, and considering the [appellants'] preparedness to report LTTE suspects to the police and the seriousness of alleged threats against them, the Tribunal does not find it credible that they would delay reporting such threats to investigating authorities. In assessing all the material before it the Tribunal is not satisfied that any of the events as outlined by the [appellants] in the months leading up to their departure from Sri Lanka actually occurred. As well, if they were to face threats of harm from anyone associated with the LTTE they would be able to call upon the protection of the State.' 140 In this passage the Tribunal dealt with two issues. The first was the credibility of the appellant's case, given the apparent delay in reporting the threats to the police as compared to her willingness to invoke their aid in connection with her suspicions concerning the activities of the Tamil men in her unit block. She had presumably expected the police to act against them. The Tribunal seems to have considered that such an expectation was inconsistent with her assertion that she had not reported the threats when they first occurred because she doubted that the police would act. The second matter addressed in the above passage was the availability of State protection against persecution. The Tribunal concluded, on the basis of available country information and the appellant's conduct in reporting her suspicions, that the Sri Lankan government was willing and able to offer such protection. 141 The Chief Federal Magistrate observed at [15] that: 'The Tribunal also found that if they were to face threats of harm from anyone associated with the LTTE they would be able to call upon the protection of the State.' 142 When the question of state protection was raised with the appellant in argument before this Court, she disputed the finding that it was available. However she made no attempt to demonstrate that the Tribunal's findings were unsupported by the material before it. 143 In this case, it was necessary to consider whether the appellant feared violence, motivated by a perception as to her political opinion and that the Sri Lankan government would not protect her and her family from such violence. As to the first matter, one wonders why the single act of reporting her suspicions should have led LTTE members to perceive that the appellant held a particular opinion. Such action may well have attracted the attention of LTTE, but it would not necessarily have led to any view as to political belief. One might well think that it was much more likely that the appellant would fear random violence as part of a terrorist campaign or an act of revenge than that she would fear persecution for a Convention reason. That was, of course, a matter for the Tribunal. 144 As to the second matter, I consider that in finding that protection was available, the Tribunal implicitly found that any fear on the part of the appellant was not well-founded. No proper basis, indeed no basis at all, has been advanced for launching an attack upon that finding. Any such attack would again have to address the distinction between the fear of terrorism and the fear of persecution for a Convention reason. It would be much harder to protect the community as a whole from terrorist attack than to protect one family which had been specifically identified as a possible target. In any event, in the absence of an apparent basis for doubting that the evidence justified this finding, the appeal must fail.

Adequacy of the Tribunal's consideration of the case and of its reasons 145 The majority's criticism of the Tribunal's decision focuses upon its rejection of the claims made by the appellant and her husband, its treatment of certain documents and the finding concerning state protection. It is convenient to deal first with the documents. They include: · a document in English, purporting to be an extract from the Information Book of the Maligawatte Police Station, dated 20 April 2000; · purported extracts from newspapers, undated and bearing no indication of the source newspaper or newspapers; · letter dated 10 April 2000 to Regional Telecom Engineer; · letters from: · friends and/or relatives, · Priest-in-Charge, Nugegoda Baptist Church; · LTTE; · a school in Colombo; and · the tenant of the former family home. 146 This material, other than the letter from the school and, possibly, that from the tenant, was first forwarded to the Tribunal under cover of a solicitor's letter dated 25 June 2002. It is not clear when the other material was supplied. The Tribunal was understandably concerned by the late submission of the material and questioned the appellant about the delay. Unfortunately, the appellant's responses were not audible on the recording of proceedings in the Tribunal. However it is clear that the appellant claimed to have brought the material to Australia. The Tribunal referred in its reasons to the 'belated' submission of material but said nothing else about that matter. Before this Court, the appellant asserted that she had supplied the material to a migration agent who failed to submit it in support of the application. It is unclear whether she gave that explanation to the Tribunal, again because of the state of the recording. It was for the Tribunal to consider any explanation offered. It is not clear whether it treated the documents as suspect because of such late delivery. If it did so, then it must have rejected the appellant's explanation as untrue or inadequate. It presumably heard what was said, despite the recording being unclear. It was entitled so to reject the explanation. If it did not treat the documents as suspect because of their late delivery, then the matter is of no consequence. 147 In any event, I consider that the documents have acquired an apparent significance which they do not warrant. In order to demonstrate this, it is necessary to examine them in detail.

Extracts from newspapers 148 The extracts were undated and bore no identification of the source publication or publications. Any investigation of their bona fides would therefore have been difficult. The translation of the first extract reported that: 'The Fort Police have been able to arrest and take into custody 4 members of the LTTE terrorist organization living in a flat at Gunasinghepura in Pettah who had allegedly been trained to combat. A special envoy of Police stated that they have come from Batticaloa under the pretext of coming to Colombo looking for overseas employment in order to spy around Colombo. They have been arrested as a result of information given by a resident in Maligawatte.' 149 According to the translation, the second extract reported that LTTE had obtained ransom from 'ordinary Tamils living in Colombo' and that they had threatened and intimidated persons who spoke against them or informed the police about such activity. The article reported that 'It is understood that these elements have engaged in acts of terrorising the people on 25 May.' The third extract, headed 'Death Threats to Informants' stated: 'Mr [the appellant's husband's name] who is a resident of Maligawatte states that he and his family has been subject to death threats from a group of unidentifiable persons alleging that he has provided information to the police about the terrorist tigers. He has complained to the Maligawatte police about such threat he receives over the telephone during night time. However he further states that it is becoming increasingly difficult for him to stay in that house any longer.' 150 Purported copies of the original articles were provided. They are in a language other than English, using non-Roman characters. There was no evidence proving the accuracy of the purported English translations, but it seems to have been assumed. The only proof that the extracts were genuine (ie that they came from published newspapers) was that the appellant, and perhaps her husband, said so. The appellant said that they were published about the time of the incidents to which they related. She told this Court that since the hearing in the Tribunal, she has tried to identify the source newspaper or newspapers but has not been able to do so. The appellant's husband denied having spoken to the press concerning the presently relevant matters, raising a question as to how the third extract came into existence. The language of the translations is often ungrammatical, and the reports are superficial. Of course, one must make allowance for cultural differences and difficulties in translation. 151 The most unsatisfactory aspect, however, is the absence of any identification of the sources of the extracts or their dates. Although it may not be strictly relevant, the appellant's inability to identify such sources, despite efforts made since the Tribunal hearing, does not assist the argument that the Tribunal should have independently checked the authenticity of the articles. It is difficult to see how it could have done so. There is nothing about the physical appearance of the material which leads to an inference of authenticity. In the end, the weight to be given to the extracts depended entirely upon the Tribunal's views of the appellant and her husband as witnesses. 152 In any event, the content of the extracts could not have greatly assisted the appellant's case, particularly in view of the absence of information as to dates of publication. At the highest, the extracts disclose a complaint to the police which, as the appellant and her husband asserted, was made on 20 April 2000. However the appellant denied that her husband had spoken to the press. The other events reported in the extracts may, or may not, have been those referred to in evidence by the appellant and her husband.

Police report 153 The extract from the Police Information Book reports that the appellant's husband visited the police station and stated that: 'Having sighted a person behaving in a suspicious manner near our flat on the night of April 4, 2000, I informed the Meligawatte police station by telephone. Later I came to know from a news report that this person had been arrested and through him three other persons had been arrested by police. The report further stated that they belonged to an organization. About four days after this incident, we received a telephone call around 11.00 pm in the night and the caller obviously a Tamil person spoke in broken Sinhalese said "You are the one who gave the police the information leading to our arrest. We will not allow you all to live any more. Mind you, we will destroy your entire family. You know very well that we put our words into action. Therefore be careful." This went on for the next few days and we received anonymous calls every night threatening to kill all of us including me, my children and my wife. As a result I have a very strong fear for the safety of our lives. Therefore I appeal to the Officer in Charge of the Police station to provide whatever protection to our family against these threats by having the night patrolling officers in our area to patrol our area.' 154 Taking the document at face value, it does no more than record that the appellant's husband made such a complaint on 20 April 2000. It says nothing about the authenticity of the complaint and nothing about the delay in making it. Even if the complaint were made, it was no more than a prior consistent statement, as consistent with an attempt falsely to establish refugee credentials as with there having been a true basis for the complaint. Once again, the weight attributable to the document depended, in large part, upon the Tribunal's views of the appellant and her husband as witnesses. It may have been possible to contact the police station to see if the report was authentic. However it was of such marginal relevance, as compared to the evidence from the appellant and her husband, as to make it superfluous for the Tribunal to have taken that course.

LTTE letters 155 The appellant and her husband claimed to have received two documents on the 'letterhead' of LTTE and bearing the 'logo' of that organization. Both documents were, according to their terms, 'Released by the International Secretariat of LTTE 211 Katherine Road London E61BU United Kingdom Tel: 020 85034294.' The first, dated 19 April 2000, said: 'Take this as a serious warning. Keep away from our business. Your failure to adhere to these instructions would be regrettable.' 156 The second, dated 9 May 2000 stated: 'Final warning. Our source of information is very reliable and vouches that we will be notified immediately you give away any information. Ours is a terrorist group and the punishment would be severe. There is nothing that would satisfy us but your life or the life of your family member. We testify upon blood, and there would be no other chances. This is final. Consider yourself lucky even as to survive this time. We lose no time in considering bothersome cases.' 157 Both were warnings against future conduct rather than direct threats of punishment for past actions or political beliefs. In this sense they do not support the appellant's case in which she alleges threats of impending violence. Neither is addressed to the appellant or to her husband. It seems bizarre that a terrorist organization should be using stationery with letterhead and a logo and identifying a street address in London. Again, the letters would only be probative of any relevant matter if it were shown that they had been received by the appellant or her husband. The only evidence of that matter came from them.

School letter 158 The letter is dated 19 May 2000 and is from 'S Thomas' Preparatory School'. Itwas signed by a person described as 'class teacher' and addressed to the appellant. It speaks of 'the issue of threats to your family'. One infers that the appellant and/or her husband had approached the school with a view to having their children admitted as boarders in order to safeguard them from danger. One also infers that the writer's knowledge of such threats must have come from either the appellant or her husband. Again, any probative value would depend upon the Tribunal's accepting them as credible witnesses. It follows that the letter itself added little or nothing to the appellant's case, and that any enquiry to the school as to its authenticity would have had little point. It would still demonstrate nothing more than a prior consistent statement.

Letter to Telecom 159 The letter dated 10 April 2000, addressed to the Regional Telecom Engineer, states: 'This is to inform you that the above resident telephone had been receiving calls from a group of people whom we presume LTTE. This has become a serious threat to our lives. Since we have two small kids who do not understand the gravity of the situation. Their [sic] are scared and horrified accidentally when they pick up the phone. We would appreciate it very much if you could take an immediate action towards this matter.' 160 Again, the probative value of the letter depended upon the authenticity of the allegation of threats, which matter could only have been addressed by the appellant or her husband. It is also a prior consistent statement.

Priest's letter 161 The letter, apparently from the priest-in-charge of the Nugegoda Baptist Church and dated 10 May 2000, is a letter of encouragement in a form which one might expect from a pastor. It relevantly states: 'Relax and bare peace of mind for you have not done any wrong. Keeping the relevant authorities informed of any suspicious incident is a duty of a virtuous citizen. You have done the right thing … Don't ever feel that you have created a troublesome status, dragging the lives of your family to this unwanted situation.' 162 Again, one must infer that any knowledge which the priest held concerning the situation was derived from information received from either the appellant or her husband. The value of the letter depended upon the acceptance of their evidence. Obviously it is yet another prior consistent statement.

Tenant's letter 163 The letter dated 2 August 2001 indicated an intention by the tenant to terminate the letting of the house previously occupied by the appellant and her family and stated: 'It is with great regret I would like to inform you that we would be vacating the house by the end of this month. For the past four months we have been threatened by unknown people, and they're had been many calls where someone just says that we will kill you. Especially during day time people just walk through and knocks on the door. Most of the time they ask for your husband and says we will find out. I don't think that there is any reason my family should go through this mental pressure and agony.' 164 The provenance of the letter could be proven only by the evidence of the appellant and her husband.

Other letters 165 There are other letters received from relatives and/or friends in Sri Lanka. It is not necessary to outline their content in detail. It is sufficient to say that they refer to threats and the risk of violence against the appellant and her family. Again, their worth in these proceedings depended upon the evidence of the appellant and/or her husband that they are genuine letters. 166 In summary: · The probative value of all documents depended upon the Tribunal's view of the appellant and her husband as witnesses. · At most, the documents indicate that the appellant and/or her husband had previously complained of threats arising out of their supply of information to the police, without offering any independent proof of the truth of those complaints. In other words, they are, at best, prior consistent statements. · The value of the documents, even if authenticated, was not such as to dictate that the Tribunal should seek further evidence as to their authenticity. 167 I should say a little more about prior consistent statements. The law has consistently treated them as being generally of little value because of their self-serving nature. Clearly, at some time between April and September 2000, the appellant and her husband decided to seek refuge in Australia. On their own accounts they left their home in Colombo shortly after 5 April. It is not beyond the bounds of possibility that they thereafter set out to establish their claim to refugee status. That might be one reason for reporting, on 20 April, threats allegedly made some two weeks earlier. 168 The Tribunal described the content of some documents as 'contrived and self-serving'. The word "contrived" may have been meant to imply that documents were not authentic in that they were not what they purported to be. However the Tribunal's meaning might also have been that the documents, although authentic in that sense, were created or obtained for the purpose of supporting a claim to refugee status. The Telecom letter may well have been written by the appellant or her husband, but it does not follow that it reflects a genuine fear on their part or that it reports facts. The priest's letter and the school letter were obviously written in response to something said or written to the writers, presumably by the appellant or her husband. If their intention was to provoke responses for the purpose of supporting their claims that they feared persecution, it could be said that the responses were 'contrived'. Such a conclusion does not necessarily reflect on either the school or the priest. It may well be that the Tribunal deliberately distinguished between the newspaper extracts and the LTTE letters which it found to be 'not genuine' (see reasons at pp 6-7), and the other documents, which it found to be 'contrived' (see reasons at p 8). 169 Generally, matters in issue must be determined by reference to all relevant material. Evidence may gain credibility from other evidence. A witness's credibility may benefit or suffer because of credible documentary evidence which supports or undermines it. In theory, although not so often in practice, the authenticity of documents may be strengthened or weakened by credible evidence from a witness. The authenticity of a document and the circumstances in which it was created (including the date thereof) will often be in issue. Sometimes, the document will have the almost indisputable appearance of authenticity. A copy of a well-known newspaper is an example. In such cases, a tribunal, not bound by the rules of evidence, might accept its contents without further proof. In other cases, it may be necessary to prove authenticity and/or the circumstances of a document's creation. This will often involve the calling of a witness who can identify the documents and/or say something about its provenance. Where the purpose of receiving the document is to bolster the evidence of the same witness, there will be an obvious logical difficulty. The document will be capable of bolstering such credibility only if that credibility is established. 170 In practice, a tribunal of fact must decide whether it accepts disputed evidence, having regard to all of the relevant evidence. When the reasons for accepting or rejecting particular classes of evidence (such as documents and oral evidence) differ, the tribunal's reasons for so doing may seem to suggest that such classes have been considered in isolation. However that will not necessarily have been the case. Difficulty in expressing the basis for attributing weight to different classes of evidence does not necessarily mean that the tribunal has failed to perform its duty. Where, as here, the relevant Tribunal addresses aspects of the evidence in its reasons, it is unlikely that such aspects have been disregarded in the decision-making process. 171 In this case, only the appellant or her husband were available to give the documents the verisimilitude needed in order to bolster their claims. I do not accept that the documents were of such significance as to lead the Tribunal to conduct its own enquiries. In the end the real question was whether the Tribunal was willing to act upon their evidence, to which issue I now turn.

The Tribunal's treatment of the evidence of the appellant and her husband 172 In considering the evidence of the appellant and her husband, the Tribunal first observed that it was 'implausible' that their names would have been provided by police to persons suspected of involvement with LTTE. It considered that it was also implausible that the callers who made the threats would have identified themselves as members of a secret terrorist organization. The majority observes that it was not the appellant's case that the police had provided the names of the appellant and her husband to LTTE. However my understanding of the appellant's case is to the contrary. The matter was raised by the Tribunal at p 13 of the transcript. In that context the appellant appears to have suggested that LTTE 'have people even in the police among them everywhere …'. As I understand it, she was alleging that the information had been passed to LTTE members by somebody in the police force. The majority also observes that the appellant had not asserted that threatening callers had identified themselves as members of LTTE. Again, my understanding of the case is different. The matter was canvassed by the Tribunal at pp 6 and 7 of the transcript. In connection with the telephone calls, the appellant was asked: 'On what basis did you know that they were connected with the LTTE?' She replied: 'Because they said they are the LTTE'. 173 In its reasons, the Tribunal then observed that it was similarly implausible that police would have given the names of the appellant and her husband to newspapers 'due to the risk that they would be exposed if there names were published'. The majority considers that it was not the appellant's case that her name or that of her husband had been published in newspapers as police informants. In the third newspaper extract it was said that the appellant's husband had claimed that they had received death threats 'from a group of unidentifiable persons alleging that he has provided information to the police about the terrorist Tigers'. As I understand the point made by the majority, it is that this is merely a report of the appellant husband's account of the threats, not a statement that he had in fact acted as a police informant. The distinction is a fine one. However the real point of the Tribunal's comment was that as the appellant denied that her husband had made that statement to the press, the alternative explanation was that the police had informed the newspapers. Thus, in observing that it considered it implausible that the police would have done so, it was really casting doubt on the authenticity of the purported extract. In any event the appellant, herself, was concerned that the effect of the article was to name her husband as a police informant. The third "particular" in par 2 of the notice of appeal is to that effect. 174 The majority also suggests that there was some inconsistency between the Tribunal's finding that the third extract was not genuine (and by inference created by the appellant and/or her husband) and the finding that the allegedly fabricated extract contradicted their version of events. I understand this point to be that had the appellant and her husband determined to create a false newspaper report, they would not have included information which they proposed to deny. Tribunals of fact frequently rely upon inconsistency as evidence of invention. It can only rarely be seen as indicative of truth. Persons who invent stories are rarely able to foresee the extent to which, or the ways in which, their accounts will be tested and probed. When that process begins, it not infrequently becomes clear that the original story must be amended in order to meet weaknesses which emerge. None of this should be taken as implying that I necessarily doubt any aspect of the appellant's case. I am merely explaining why I cannot subscribe to the majority's criticism of the Tribunal's reasons. 175 In rejecting the appellant's claim, the Tribunal depended to a significant extent upon the fact that her version of events and that of her husband differed in some respects. This was particularly so in connection with the places at which the family resided after they left their home in Colombo, allegedly as the result of threats. Again, inconsistency between witnesses as to the same events may often indicate that one or other is untruthful or unreliable or, in some circumstances, that both are untruthful or unreliable. However the majority criticizes the decision for not expressly addressing the fact that any differences in recollection 'concerned events that were said to have occurred more than two years previously.' It is said that: '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.' 176 It was not the function of the Magistrates Court, and it is not the function of this Court, to substitute its own views as to the credibility of the witnesses for those of the Tribunal. The conduct of the appellant and her husband in the period from the first threat until their arrival in Australia was a matter of considerable importance in the case, closely associated as it was with the very facts upon which the appellant relies to establish her claim to a protection visa. They entered Australia slightly over four months after the threats were first received, and the application for a protection visa was made on 13 September 2000, that is about a month after such entry. It is difficult to avoid the conclusion that when they came to Australia, the intention was to take that step. In any event, the importance of those incidents must have become apparent no later than the time at which they decided to seek protection visas. This is not a case in which witnesses were asked to recall events which had occurred long in the past, not having had any cause to address those incidents in the time which had elapsed since they occurred. 177 The Tribunal observed that: 'The [appellants'] claims that their movements were sometimes monitored by strangers whom they believed to be connected with the LTTE, and that the applicant wife was approached on one occasion and informed she and her family would be annihilated, lack credibility. It is implausible that the LTTE would know of the [appellants'] alleged role as informers and that, having somehow learned of it, would then go to extraordinary lengths to monitor them at relatives' homes and in public places and threaten future dire harm without ever carrying out those threats. The LTTE is notorious for its resort to violence and on the [appellants'] 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.' 178 The majority observes that this aspect of the reasons is difficult to understand, and that the fact that harm did not occur does not mean that a threat of harm was not made. However the appellant's claim was not merely that LTTE members threatened violence and did not carry it out. She claimed that they had also engaged in extensive surveillance of the appellant and her family. In view of the fact that the family was moving fairly regularly in the period between April and August 2000, that would not have been an easy task. The appellant's allegation of surveillance necessarily implies that LTTE activists were physically close to members of the family at various times throughout that period and so had opportunities to carry the threats into effect. 179 The Tribunal's view was not that it was implausible that threats should be made and not carried out. It was that it was implausible that LTTE, with its propensity for violence should have threatened violence, gone to so much trouble to keep track of the appellant and her family, therefore having opportunities to carry out such threats, and not have done so. This view led the Tribunal to conclude that the appellant's claims lacked credibility. I see nothing illogical in that process of thought. 180 I have previously referred to the Tribunal's findings concerning the availability of protection from the government of Sri Lanka. The majority observes that there is an inconsistency between the finding that such protection was available and the finding that it was a matter of notoriety that LTTE had the capacity to carry out threats of harm, at any time and at any place in Sri Lanka. I am not sure that the Tribunal's findings went quite so far, but it does not matter for present purposes. There is a real risk here of confusing acts of terrorism with persecution. As I have previously observed, it is obviously much easier to protect an identified target than it is to protect the whole of the population of Sri Lanka. No government can guarantee the absolute safety of all citizens. The relevant question was whether the state was willing and able to protect the appellant and her family from persecution for reason of her (perceived) political opinion. Such protection could only be provided after the threats had been brought to the attention of the authorities. 181 The issue went both to the bona fides of the appellant's claim to fear persecution and to the question of whether any such fear was well-founded. The position of the appellant and her family was complicated by the alleged delay in reporting the threats and the ceasefire. In the absence of such a report, they were largely unprotected. She claims that they were being watched, but there was no violence or attempted violence. After the report to police, there were further threats and surveillance but again, no violence or attempted violence. State protection either was never tested or was effective. These circumstances may raise doubts concerning the appellant's claims, but they do nothing to undermine the Tribunal's finding that state protection was available. That conclusion was based on country information and the appellant's conduct in reporting to the police the suspicious conduct in her unit block. Assuming that her account was true, she must have believed that there was some point in so doing. 182 The majority observes that the Tribunal did not make any specific finding as to whether circumstances in respect of state protection, as at the time of its hearing in July 2002, were the same as they had been in April-August 2000. However, as I have observed, there has been no suggestion that the findings were other than in accordance with the evidence. The majority also considers that the reference to the availability of state protection was made in passing, after the substantive reasons for the decision had been explained. However the Tribunal asserted that it was a matter which it took into account in reaching 'its ultimate conclusion'. It explains the way in which it did so. I see no reason to reject the Tribunal's statement. It is also said that there was no 'supporting analysis' provided. However s 430 of the Migration Act requires only that the Tribunal prepare a written statement setting out its decision, the reasons for the decision, findings on material questions of fact and references to the evidence or other material on which the findings were based. The Tribunal found that state protection was available, that view being based upon the country information and the appellant's own conduct. I cannot see that it was required to do more. Again I point out that nobody has suggested that the evidence did not justify the Tribunal's conclusion in this regard. 183 Finally, it is suggested that the weight which the Tribunal attached to the country information may have been affected by the way in which the balance of the proceedings were conducted which, as the majority considers, denied procedural fairness to the appellant. Subject only to the argument concerning the proper construction of s 424A, to which I will come in a moment, I see no denial of procedural fairness and therefore cannot see any justification for this criticism.

Section 424A of the Migration Act 184 Section 424A provides relevantly as follows: '(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.' 185 The majority considers that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 demonstrates that s 424A required the Tribunal to inform the appellant in writing of any information derived from her husband in the course of the hearing in the Tribunal, upon which information the Tribunal intended to rely in affirming the decision under review, and to invite her to comment upon it. The requirement for writing emanates from par 424A(2)(a). It is also said that, pursuant to s 424A, the Tribunal was obliged similarly to inform the appellant's husband of any information given by her which was contrary to his interests as an applicant. I do not read SAAP as being authority for either proposition. There is one critical difference between the facts of that case and the facts of the present case. In SAAP a mother and daughter were applicants for protection visas. At the hearing the Tribunal indicated its intention to take evidence from another daughter of the applicant mother. She had already been granted a protection visa in Australia. That lady's evidence was inconsistent with parts of the case advanced by the visa applicants. The majority of the High Court concluded that in those circumstances it was necessary that the evidence of the daughter be provided to the applicants in accordance with s 424A. It is clear from the report that the daughter's evidence was not part of the applicants' case. Subsection 424A(3) provides that the section does not apply to information which the applicant has given for the purposes of his or her or any application. In SAAP, the evidence called from the daughter, at the instigation of the Tribunal, was clearly not given by the applicants. 186 In the present case, however, the transcript of proceedings in the Tribunal indicates (at p 2) that both the appellant and her husband wished to give evidence. The question before the Tribunal was whether or not the appellant was a person to whom Australia owed protection obligations. Both the appellant and her husband appear to have accepted that each was a relevant witness in establishing that case. Subsection 424A(3) speaks of information given by the applicant. There is no reason to limit that category to information given "in evidence" by such applicant. It includes all information put before the Tribunal by the applicant. An applicant may well give information to the Tribunal by calling a "witness". In the present case the better view is that the appellant put before the Tribunal the evidence of her husband. Similarly, to the extent that the husband was a party to the proceedings, he provided information which came from his wife. The position may have been otherwise if one of them had, at the instigation of the Tribunal, addressed issues of which the other spouse was completely unaware. That was not the case. The decision in SAAP and, more particularly, the provisions of s 424A, have no application. I should add that I doubt whether the husband's position is of any present relevance. I would have thought that in deciding whether the appellant was entitled to a protection visa, the Tribunal was obliged to afford procedural fairness only to the appellant and the Minister. If the appellant were successful, her husband and children would then also have claims to such visas. However I see no basis for treating the husband as a party to the proceedings to establish the appellant's claim.

orders 187 In my view the appeal should be dismissed with costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 22 February 2006 The Appellant appeared in person.

Solicitor for the Respondents: Australian Government Solicitor

Date of Hearing: 18 November 2005

Date of Judgment: 22 February 2006