Briginshaw v Briginshaw

The Tribunal transcript The appellants sought leave to tender and rely upon a transcript of the hearing before the Tribunal. The learned primary Judge declined a similar application because the respondent had not seen or had an opportunity to verify it. That situation having now been overcome, this Court took the view that it should receive the transcript for the purpose of ruling on the application for leave and should postpone to its final judgment the question of whether reliance on the transcript should be permitted having regard to the use which the appellants wished to make of it. Although the respondent opposed the appellant's application in this regard, and challenged the accuracy of some parts of the transcript, I did not understand him to oppose this procedure. Then at the end of the appeal, when it emerged that both parties and the Court had used the transcript extensively during argument, the respondent withdrew its objection to its admissibility and it therefore became part of the evidence on the appeal.

The letters The tenant's letter commenced: 19.11.96 Dear John, Swarna, and Sharon, We are keeping fine and we are quire [sic] anxious to know about your well being. The situation here is worsening. By the grace of God you have gone to Australia. Recently the Government security forces and the anti L.T.T.E. organizations had been coming here quite often and had been harassing us inquiring about you. and concluded: I cannot continue to live in your house under such harassment and persecution. Please made arrangements for someone else to live here. Further more please do not come to Srilanka [sic] under any circumstances. The Govt. Security forces and organizations are waiting to take revenge on you. It arrived in Australia at the end of November 1996. The sister's letter opened: 20.12.96 Dear John, Swarna, and Sharon, How are you all getting on? We are surviving by the grace of God. You are lucky that you have gone to Australia. Hereafter do not think of coming back to Srilanka. Heavy shelling and the atrocities by the "Boys" are quite common here. After the death of our brother and the arrest of our sister-in-law, mother is highly worried and is confined to the bed. and concluded: There is danger to your life from both sides therefore think seriously before you do anything. Sugi and children are keeping fine. Inform us about your health. Your loving sister, Ulaganathan Thilagawathi It arrived in Australia about a month after its date. It is common ground that this appeal turns on whether the Tribunal's approach to and findings on the two letters manifested an error of law in the applicable procedures and law in contravention of section 476(1)(a) and (e) of the Act.

The tenant's letter The principal attacks on the Tribunal's treatment of the tenant's letter were its improper approach to the question of its fabrication. As the learned primary Judge correctly found, this issue largely turns on an interpretation of the letter's terms. As I see it, the surrounding facts are also relevant. In the substance of her letter, the tenant stated that security forces surrounded the house on 18 November 1996 at 10.00 pm and pointed guns at her. They asked where the Meadows were and alleged that they were spies for the Tigers. They inquired about the sister in law and her movements and associates. The house was searched. The letter then said that "later" the tenant heard that the sister in law had been detained and then gaoled. She went on that "on the 19th early morning at 2 o'clock" - that is, 4 hours after the visit of the security people on the day the letter was written - some young men with guns came to the house inquiring about Mrs Meadows and her sister in law and asking whether Tamil Tiger "boys" still visit the house. These men "smashed the whole house, smashed some items and severely reprimanded us". They "tortured" her. Because of the use of the word "later", as translated from Tamil to English, the Tribunal found that the letter meant that the tenant learned of the sister in law's arrest between these two intrusions on 18 and 19 November. It first treated with suspicion and then rejected this assertion. The primary Judge not only found this conclusion to be open to the Tribunal, but also held that the Tribunal was entitled to form the view that the letter was contrived to assist the appellants' case at the Tribunal. His Honour also found no fault with the Tribunal's attribution of significance to the failure of the tenant to say what took place between the two visits to the house that night or how she learned of the imprisonment of the sister in law.

The sister's letter The sister's letter reported "heavy shelling and ….. atrocities by the 'Boys' [as] quite common, mother is highly worried and confined to the bed". The sister stated that she had been recently detained in a "refugee camp for about a month" and had then visited the sister in law in prison. The sister in law was said to be "in an awful state", having apparently been "subjected to a very cruel torture" which she could not discuss. The sister in law wanted her to tell the Meadows not to return to Sri Lanka under any circumstances and that "the Army has extracted all information about you". The sister stated that "by getting information from sister in law they have implicated you with the L.T.T.E. bomb explosions in Colombo". She reported that "Brother's death is also a mystery. Some say that he was shot by the army while others say that he was shot by the other groups. God only knows what the truth is." The Tribunal found that the implications from the letter were that the sister in law had informed the authorities of the Meadows' involvement in the Tigers' activities including bomb explosions in Colombo, and that it would therefore be dangerous for the appellants to return. It found that these implications were false as they themselves had not given any such evidence. This inconsistency between the letter and the appellants' evidence therefore led the Tribunal to conclude that the letter was deliberately tailored or fabricated to exploit the sister in law's arrest and imprisonment by falsely implicating the Meadows in Tamil Tigers activity. The learned primary Judge found no error in this process of reasoning.

DIFFICULTIES WITH THE TRIBUNAL'S REASONING It is not entirely clear what the Tribunal actually found about the letters. It did not appear to conclude that they were forged or concocted but to have decided that they were procured from the people purporting to have written them who were persuaded to lie about the relevant assertions for the sole or prime purpose of assisting the appellants' case for refugee status. However, what parts were fabricated and what were not was nowhere identified. The Tribunal's conclusions about the authenticity of the letters appear to have been based, first, on their timing and arrival just before the Tribunal hearing on 19 February 1997. According to the evidence, the chronology was that the appellants first learned of the sister in law's imprisonment from another of Mrs Meadows' brothers in Denmark in late 1996 and that they had been advised to seek corroboration from the Red Cross. First contacted shortly before 20 November, the Red Cross later confirmed the incarceration. On 15 November, a month after the delegate's refusal of the refugee applications, but at least two weeks before the tenant's letter arrived in Australia, the Meadows' solicitor had passed on the information about the arrest in a submission to the Tribunal. In fact, therefore, the fact of the arrest could not have been made available to the delegate, and the letter informing of it arrived in Australia fully three months before the Tribunal hearing. Although these facts put the position somewhat differently than appears to have been found or suspected by the Tribunal, to resolve this appeal on that basis would be far too technical. By itself the fact that the presentation of the letters was designed to assist the appellants' case for refugee status says nothing about their veracity. Even if the letters were procured for that purpose, no definitive conclusion adverse to their truth could be drawn, especially on the ground that they arrived in Australia not long before the Tribunal hearing. If the appellants learned in November 1995 that the tenant and the sister could provide truthful material to support the arrest and detention of the sister in law and were advised that such material would assist their case at the Tribunal, it is obvious that letters to that effect would arrive in Australia not long before the hearing. The contemporaneity of these events, albeit much less precise than the Tribunal appears to have found or assumed, is therefore by itself not in the least suspicious. A positive finding that they were false would in these circumstances be unjustified by the facts found. As I see the position, there are a number of other problems with the Tribunal's approach to this matter. First. As attested by the Red Cross in a letter to Mrs Meadows on 20 January 1997, there is no doubt that the sister in law was arrested and gaoled in circumstances suggestive of her being suspected of Tamil Tiger affiliations or activities. When the tenant learned of the arrest and imprisonment therefore seems to me to be of no importance at all. Nor was there any reason for her to invent the events with only minor reference to the implication of the Meadows in espionage for the Tigers of which they had earlier given much more dramatic accounts. Likewise, the only thing added by the sister's letter to the information available some time before was the present state of the sister in law in prison. At best therefore these letters would give some but not vital support to the appellants' claims. Deliberate fabrication is a large step from this foundation. Second. The brother's death, apparently murdered, strikes me as creating a far more significant element of support to the appellants' fear of persecution, yet it was not mentioned by the tenant, mentioned only in passing by the sister, and ignored altogether by the Tribunal. There seems little doubt that the brother was dead, and that he did not die of natural causes. If he was murdered, and his killing was politically motivated, the credibility of the appellants' fear of persecution would appear prima facie to be considerable. Third. The rejection of the letters might mean that the search for corroboration of the appellants' accounts would have to be directed elsewhere but should not have destroyed their credibility totally, as the Tribunal implicitly found. The general situation in Sri Lanka hardly needed corroboration but there was ample material before the Tribunal which provided it anyway. The arrest and detention of the nephew, the gaoling of the sister in law without charge or trial, the apparent extrajudicial killing of the brother, and Mrs Meadows' connections with her mother, the house in Jaffna, and the Tigers over a long period would, it seems, provide significant support for the appellants' claims of fear of persecution. If the 1994 confrontation with the police in their house was true, there would be little room for too much doubt. Yet the Tribunal dealt with this assertion merely by disbelieving it. Fourth. If the letters were contrived to mislead and deceive the Tribunal, its finding must have been that all the contents, or at least the principal contents, were false. That would mean that the police did not surround the house on 18 November, they did not point a gun, they did not say that the Meadows were spies etc, and they did not ask any of the questions suggested or raid the house. The Tribunal's adoption of such an approach on the basis of doubts about timing and that it could not see why the security forces would be interested in the Meadows seems in these circumstances to be at best naive. The Meadows would answer: "Neither can we but logic and truth are not high points of the warring parties to this dispute". The questions for the Tribunal were whether the Meadows had a subjective fear of persecution and if so, whether it was well founded on Convention grounds. No doubt if the security forces did behave as stated and did tell the tenant that they believed the Meadows were spies for the Tamil Tigers and were implicated in bomb explosions, it would provide powerful evidence of the appropriate fear on the Convention ground of race, ethnicity or imputed political opinion, especially if as they say these beliefs were untrue. If the authorities arrested and gaoled the sister in law and detained the nephew, and if they murdered the brother or knew who did and did not charge the person, all for the same or similar reasons, the Meadows' fear that they would be persecuted or worse on their return would no doubt be intense. If the evidence of all the events related by the Meadows and the fears expressed by them were accepted, it would be difficult to gainsay a well founded fear of persecution. The Tribunal was therefore required to determine whether the security forces or other groups supporting the government did engage in the events recorded in the tenant's letter. The Tribunal has either decided that they did not, on the basis that the letter was completely false, or made no finding on the matter at all. For the reasons given, either way it manifests legal error. In these respects and others, it is my view that the Tribunal failed to undertake the task given to it by the Parliament and accordingly its decision is susceptible to review on grounds set out in section 476(1) of the Act. I agree with the observations of Merkel J in this connection.

the appellants' approach However, the appellants did not in truth base their appeal on these matters. They argued that the Tribunal misled them at the hearing when it said that although it had a suspicion that the letters had been "made up", he was "not accusing [them] of anything". The appellants argued that when it finalised its conclusions in its determination, the Tribunal was in fact accusing them of lying on oath. The appellants argued that far from deflecting them from an implication that they were parties to a fraud, the Tribunal should have put the allegations to them directly if it was to follow appropriate procedures (s.476(1)(a)) or accord substantial justice (s.420(2)). Moreover, although the rule enunciated by Lord Herschell LC in Browne & Dunn [1894] LR 67 (HL) at 70 was fashioned in an adversarial context and does not have direct application to an inquisitorial process such as conducted by the Tribunal, the appellants contended that the practice is now so well entrenched in the common law as to suggest that an analogous process is required in inquisitorial proceedings when a serious allegation of dishonesty was to be made, especially when it is to be made by the inquisitor itself. Moreover, the appellants submitted that before a finding of deliberate dishonesty was made, a high degree of satisfaction based on strong evidence was needed: Briginshaw v Briginshaw [1938] 60 CLR 336. The appellants also submitted that the Tribunal failed to identify the appellants' subjective fear at all let alone determine whether there was objectively a real and substantial basis for it. If true, this failure can amount to an error of law: Emiantor v Minister for Immigration & Multicultural Affairs [1997] 48 ALD 635. The Tribunal enunciated a requirement that the appellants manifest a "profile" by placing themselves in a category relevant to the persecution alleged to be feared. The appellants submitted that even if such an approach were otherwise correct, no profile can be determined unless the persecution has been first identified. In my opinion, the appellants did not need to identify a category of persons, in which they fitted, who were most likely to suffer persecution. What the Convention definition requires, as discussed in Chan and Minister for Immigration & Ethnic Affairs v Guo [1997] 144 ALR 567, is that they each have a genuine well founded Convention-based fear of persecution, in that there was a real chance of persecution if they are returned. The Tribunal did not find for or against the facts upon which the appellants' claimed fear was based, did not define which claims it accepted and which it rejected, and did not determine whether the accepted facts would amount to a well founded fear of persecution on Convention grounds.

THE BRIGINSHAW AND BROWNE V DUNN ARGUMENTS The Tribunal is a creature of statute not widely replicated in common law countries. In my opinion, it is unwise if not legally inappropriate to attempt to attach to it specific forensic duties imported by the common law into strict adversarial proceedings to ensure their fairness. Because the statutory right to review Tribunal decisions is expressly and extremely limited, proceedings before it can only be found to miscarry if there are breaches of the obligations of fairness cast upon the Tribunal by the Parliament. It is the Parliament, not the Court, which determines, subject to the Convention and constitutional entitlements, what will and what will not be a fair opportunity for a person seeking asylum to present a case for protection. Subject to any constitutional requirements, the question of law for a Court reviewing a decision of the Tribunal impugned for unfairness will simply be whether the statutory framework has been contravened. Undoubtedly, however, determinations made in the comparative informality of a process that does not have any of the accepted safeguards for fairness must be critically scrutinised, especially when the determinations depend wholly or in major part on findings of credibility. Like such ephemeral matters as demeanour, a determination that a person has lied, or has engaged in a conspiracy to produce false claims or false evidence by others, presumably deliberately, should not be made unless the evidence is clearcut and is on any reasonable basis not capable of a more benign conclusion. It may not be made whimsically or superficially or by commencing with the conclusion and working back to the reasoning. It should not be made if it has not previously been put to the person concerned.

LANGUAGE AND CULTURE This injunction must especially be so where the person whose evidence is being assessed is not reasonably fluent in English and where documents being used as part of the assessment process are not written in English. Lack of creditworthiness, or rather a determination of the falsity of oral statements or written documents, of people who emanate from a different culture and who are essentially even if not formally expressing themselves in a different language, is a particularly difficult determination to make. It is the more difficult if the language of the person is not one which has the benefit of unambiguous translation into English, and if the person is not clearly, usually more than once, made aware of perceived weaknesses and discrepancies upon which the person's untruthfulness may be concluded. It is one thing for the Parliament to declare, in my view commendably, that hearings should be informal and quick (s.420); it is quite another matter that a case on which a person's life and safety might turn, should be rejected by too quick an adverse assessment of credibility due to a possibly inconsistent and incomplete coverage of crucial events essentially given in a foreign language, or in English by a person with an incomplete grasp of the language and its nuances. Allowances for nervousness, unfamiliarity with procedures and the experience of interrogation, genuine upset and fear, and other matters, must always be made. The present state of the Court's experience of cases coming from the Refugee Review Tribunal has thrown up a surprising tendency in recent times for it to reject the credibility of applicants for asylum. The respondent's submissions on this appeal have sought to immunise this decision from judicial review by a familiar recourse to traditional arguments that findings of credibility of the tribunal of fact will rarely be overturned on appeal or judicial review. As a matter of law, those arguments have a long pedigree and cannot seriously be challenged. But they are also concepts that have emerged from strict trials conducted on an adversarial basis by legally trained and experienced judges where findings that parties' credibility was tainted by lies, exaggerations and the deliberate concoction or contrivance of evidence are rare, and even more rarely are based on or arise from evidence not given in English or by persons not familiar with English. As I read the transcript and the decision, language played an important part in the Tribunal's decision in this case. Mrs Meadows gave evidence in Tamil while Mr Meadows' evidence was in English. They had a solicitor present who also apparently speaks Tamil. The tenant's and the sister's letters were in Tamil. When the Tribunal was discussing the letters with Mr Meadows (p19 of the transcript) in the context of the improbability that they were truthful and spontaneous, as opposed to concocted, tailored and contrived, it said that it was not accusing the Meadows of a conspiracy in this regard. The respondent said that this Court should not give that, as he described it, "infelicitous statement", an adverse reading because we do not know what "sort of intonation" he put on it. I disagree. No tonal inflexion of an exculpation of criminal conspiracy can reduce its finality. Moreover, it is unsatisfactory that the sanctity of people's lives might turn on the absence of evidence of a tone of voice. The respondent also argued that it was open to the Tribunal to find that the tenant's letter was not an "authentic document recording authentic events" because of the use of the word "later". The Tribunal determined that that letter was, indeed that both letters were, obtained as knowingly false documents to pretend that the events contained in them happened when they did not, and that the Meadows would be in danger if they were returned to Colombo when this crucial assertion was untrue. To my mind, the justification for these findings on the use of this single word in Tamil provides so flimsy a basis as to render it meaningless. The Tribunal's finding of the untruthfulness of the suggestion in the letters that the Meadows were in danger was also based upon their evidence that they were not spies and had done nothing to put themselves at risk is an inversion of language. The assertion attributed to the authorities that the Meadows were involved in bombings for the Tamil Tigers cannot be answered by invoking their evidence that they were not implicated. The question the Tribunal had to determine was not whether they were spies or had detonated bombs but whether the Sri Lankan authorities thought or alleged that they were or had and, if so, whether those beliefs or allegations could give rise to a well founded fear of persecution by creating a real chance that they would be persecuted if they were returned. Moreover, the appellants' case had the somewhat extraordinary feature that the Tamil Tigers thought they were spies for the Government while the Government thought they were spies for the Tigers. So far as I can see, the Tribunal appears to have accepted that serious dichotomy as true. If nothing else, that finding makes the conclusion that they lacked a well founded fear of persecution very difficult to understand, if not quite illogical. It also demonstrates the legally erroneous nature of the findings that the letters, or more importantly, the central assertions made in them, were untruthful.

Substantial justice and the merits of the case The Court is of course conscious of the controversy caused by the decision in Eshetu and knows that that case and some at least of those which followed it are awaiting the decision of the High Court. The respondent formally submitted that Eshetu was wrongly decided. But despite the High Court's observation when granting leave to appeal in Eshetu that the grant of leave should not restrict this Court from continuing its work in this field, it would not be helpful if yet another Court added views to the present difficult situation. In any event, to my mind, this case can and should be decided on another basis. At one point, the respondent appeared to argue for an interpretation of the Tribunal's decision as envisaging that the letters or one of them could have come from a source other than the Meadows and notwithstanding, or perhaps because, the tenant was not a friend of the Meadows, that they might have had nothing to do with the falsities they contained. In my view, no such inference could reasonably be drawn from the Tribunal's determination. However, the respondent did agree that if the Tribunal was making an assertion that the Meadows were implicated in the falsity of the letters, it was incumbent on it to put this matter to them directly and seek their response. I do not agree with the respondent's suggestion that this was done sufficiently, and that the solicitor's presence at the hearing would be sufficient to correct any defects in this regard. Once the Tribunal had said that it was not accusing the Meadows of any implication in a conspiracy to produce false evidence, the solicitor was in my view entitled to assume that even if the letters were found to be contrived or fabricated to help the case, the Meadows' credibility and the strength of their case would not be affected. Yet this case was decided on that very basis.

Conclusion In my view the Tribunal's decision was erroneous in law because:

1. the appellants were not given any or an adequate opportunity to meet the assertion that they were participants in an elaborate fraud to support their otherwise unmeritorious case by false and contrived evidence in the form of the two letters and the matters contained in them;
2. there was no evidence that the letters were untruthful in their assertions concerning the imprisonment of the sister in law, the brother's death, or the belief or allegation of the Sri Lankan authorities that the appellants were implicated in bombings and other activities of the Tamil Tigers;
3. the rejection of the appellants' claims for refugee status on the basis that they were not credible or creditworthy for the reasons given, amounted to a failure to follow procedures required by law or an error of law by not identifying any basis supported by evidence for the finding;
4. the finding that they did not have a well founded fear of persecution arose from a flawed understanding of the legal meaning of the term. In addition, I agree with the views separately expressed by Von Doussa and Merkel JJ to these and similar effects. Accordingly, the appellants' submission that the Tribunal's determination infringed against section 476(1)(a) and (e) of the Migration Act must be upheld. I would set aside the decision and remit the claim to the Tribunal for a rehearing by a different member and order that the respondent pay the appellants' costs.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld

Solicitor for the Applicant: Wisewoulds Solicitors

Solicitor for the Respondent: Australian Government Solicitor

AND: the minister for immigration & multicultural affairs

REASONS FOR JUDGMENT VON DOUSSA J: I have had the advantage of reading the reasons for judgment prepared by Einfeld J. I agree with his Honour that the appeal should be allowed with costs, that the determination of the Refugee Review Tribunal (the Tribunal) should be set aside, and that the appellants' claims should be remitted to the Tribunal for a rehearing by a different member. Einfeld J has summarised the appellants' case before the Tribunal for refugee status, and the reasons for decision of the Tribunal and the primary Judge. I accept that summary. The material before the primary Judge has now been supplemented by the transcript of the proceedings before the Tribunal. In my opinion that transcript discloses an error of law that was not revealed in the hearing before the primary Judge. I agree with Einfeld J that the Tribunal held that the two letters presented to it by the appellants (the letter of 19 November 1996 from the tenant, and the letter of 20 December 1996 from Mrs Meadows' sister) were deliberately fabricated to exploit the imprisonment of Mrs Meadows' sister-in-law in late 1996 by falsely implicating the appellants in LTTE activity. The Tribunal, discussing the letter from the tenant said: "The Tribunal concludes that the letter from the tenant is contrived to assist the Applicants and that the only factual statement it contains is that the Applicant's sister-in-law has been imprisoned. Similarly, the Tribunal concludes that the letter from the Applicant's sister, dated 20 December 1996 is also fabricated, notwithstanding that it contains some elements of truth." Later the Tribunal said: "As discussed above, the Tribunal concludes that the submissions and evidence have been falsely tailored to exploit the sister-in-law's imprisonment by falsely suggesting that the Applicant's are implicated in LTTE activities. The Tribunal does not accept those submissions, notwithstanding that the Applicant's sister-in-law is in prison. The Applicant and her husband have given no evidence that they have ever been involved in pro-LTTE activities, and, moreover, have complied with requirements such as registration procedures which help the government agencies in implementing security measures… ." The letters were tendered by the appellants as a central plank in their case. Insofar as the Tribunal concluded that the letters falsely suggested that the appellants were implicated in LTTE activities, the plain inference from the findings is that the Tribunal considered that the appellants were knowing participants in the fabrication of false evidence. The Tribunal's findings regarding the two letters were of critical importance to the outcome of the appellants' claims as the findings led to the Tribunal rejecting evidence on which the appellants relied to support the case that there was an objective basis for a belief by them that they would suffer persecution on account of being suspected as LTTE supporters or sympathisers if they were to return to Sri Lanka. Such finding also necessarily impacted, in a devastating way, on their credibility. The Tribunal by s 420(2)(b) of the Migration Act 1958 "must act according to substantial justice and the merits of the case". To fulfil that duty, it was, in my opinion, encumbent upon the Tribunal to make it known in plain terms to the appellants that the Tribunal considered that such a serious adverse finding was open. In adversarial proceedings the rule in Browne v Dunn {1893] 6R 67 at 70 would require a party who sought such a finding againstan opponent to put that possibility to the opponent in cross-examination. Proceedings before the Tribunal are, of course, not adversarial, but the same notion of basic fairness that underlies the rule in Browne v Dunn required that the Tribunal, before making a finding of dishonesty that would be destructive of the appellants' case, to give the appellants the opportunity to address that issue in their evidence and in their submissions. In the present case this did not occur. The statement of the Tribunal during the hearing when the letters were being discussed that "I am not accusing you of anything" dispelled the possibility that any suspicion attaching to the timing of the letters was a suspicion that the appellants themselves had participated in the fabrication of evidence. This statement was likely to have had the effect of misleading both the appellants and their lawyer into thinking that even if the letters were found to be contrived or fabricated to help the case, the appellants' credibility and the strength otherwise of their case would not be affected. I consider that the transcript of the hearing before the Tribunal demonstrates that a breach of s 420(2)(b) occurred. That breach constituted a ground for review under s 476(1)(a) of the Act: see Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300, and the analysis of the status of that decision made by Weinberg J in Inderjit Singh v Minister for Immigration and Multicultural Affairs, unreported, Federal Court, 29 October 1998. In my opinion the appeal should also be allowed on an additional ground. I consider that the Tribunal failed to address a central question in the appellants' case, namely whether two events which had occurred since the appellants left Sri Lanka gave rise to a real chance that the appellants would face persecution for a Convention reason if they were to return. A failure to address a central question in a case advanced by an asylum seeker may constitute a failure on the part of the Tribunal to act according to substantial justice and the merits of the case, as required by s 420(2)(b) of the Act: see Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, at 546-550 per Wilcox J and at 554-562 per Burchett J; and Calado v Minister of State for Immigration and Multicultural Affairs, unreported, Full Court of the Federal Court, 2 December 1998. In my opinion the failure to address this central question, constituted a failure to act in accordance with s 420(2)(b) in this case. The two events relied on by the appellants which occurred after their departure from Sri Lanka are the arrest of Mrs Meadows' sister-in-law in late 1996, and the apparent murder of the sister-in-law's husband (Mrs Meadows' brother) shortly thereafter. The Tribunal has made no express findings whether the appellants held a subjective fear of persecution. The Tribunal appears to have assumed in the appellants' favour that they did so. In outlining the appellants' case the Tribunal said: "It was submitted that the Applicant and his spouse have experienced cumulative discrimination and persecution, commencing with the 1983 anti-Tamil riots and then being victimised in the ongoing war between Tamil separatists and government forces. The Applicant's house had been damaged and she was unable to return to Jaffna to live, despite a desire to do so. In compensation, she was forced to make regular visits but was harassed each time by both the LTTE and government security forces. It was further submitted that the Applicant frequently had visitors from Jaffna and that this has led to security officials suspecting she and her husband are affiliated with the LTTE. In 1994 and 1995, they were the subject of search and interrogation directed personally at them and since they have left, the Applicant's sister-in-law has been arrested as an LTTE supporter and, it is believed, has taken the opportunity of the Applicant's absence to direct attention away from herself towards the Applicants. The Applicanst submitted printed materials that referred to the ongoing war and to mistreatment of Tamils in Colombo. They expressed the fear that they would be arrested, detained and tortured if they returned to Colombo, on account of their suspected links with the LTTE…"(emphasis added) The two letters and other evidence adduced by the appellants at the hearing before the Tribunal laid emphasis on the arrest of Mrs Meadow's sister-in-law, and on the murder of her husband apparently because of the participation of those two people in LTTE activities. It was never the case of the appellants that the appellants themselves had been involved in LTTE activities. Their case was that by reason in particular of the fates which had befallen their close relatives in late 1996, and the sister-in-law's statements during interrogation, that they would now be suspected of being so involved. The Tribunal in the course of its reasons considered various incidents described by the appellants in their evidence which occurred whilst they were residents in Sri Lanka. In reference to Mrs Meadows frequent visits to her mother following her departure from Jaffna the Tribunal observed that: "She has not been harassed other than being subjected to the usual rigorous security checks that are encountered on the route between Jaffna and Colombo. Over the years, she permitted relatives and friends from Jaffna to stay at her home in Colombo and she registered their visits in accordance with legal requirements imposed by the authorities. At the same time her husband has been involved in various businesses without suffering interference by the authorities, let alone suffering such interference for a Convention (reason). The Applicants' conduct and the lack of any action by members of the security forces, leads to the conclusion that they were not of any interest to the authorities… ." The Tribunal referred to Mrs Meadows' claims that the LTTE had stored guns or explosives in her house and had taken over the property. The Tribunal observed that Mrs Meadows had not been accosted by either the security forces or the LTTE on any of her numerous visits there to see her mother, notwithstanding the necessity to endure thorough security checks. Thus: "The Tribunal concludes that she is not suspected as an informer by the LTTE and nor, on the basis of events that have occurred in Jaffna, is she suspected by the security forces of being an LTTE supporter." The Tribunal referred to the visit by the police to the appellants' house in Colombo in 1994. The Tribunal said: "The Applicant's evidence at the departmental interview was that it was a routine security check. On the other hand, she indicated that people suspected of LTTE links were detained and commonly killed. Given that there had been a history of registering Tamil visitors with police and of obtaining security passes to travel back and forth to Jaffna and that the Applicant and her husband were not required to go to the police station for further questioning after the police visit, the Tribunal determines that the visit was a routine security check, notwithstanding the fearful threats made to the Applicant's husband. It was an unfortunate incident that does not suggest anything but a very remote chance of persecution in the foreseeable future. In support of these conclusions is the evidence that both the visits of relatives and friends to Colombo and the Applicant's trips to Jaffna, continued after the police visit to the Colombo house in 1994. As well, her husband continued in his occupation without difficulty and the whole family was able to depart the country in 1995 without attracting the attention of the authorities… While the Applicant stated that they were able to negotiate checks at the airport because they hired a luxury vehicle to give the appearance of being wealthy, they still passed through routine checking procedures and the Tribunal concludes that they would have (sic- been) stopped if they were of any adverse interest to the authorities." These findings, and the conclusion based on them that there was nothing but a very remote chance of persecution in the foreseeable future, concerned the evidence of happenings whilst the appellants remained in Sri Lanka. However, central to their case, was the additional relevance of the two events concerning members of their family after they departed. The sister-in-law and her murdered husband had been visitors to the appellants' Colombo house, and had been registered as such. That the authorities did no more than make a routine security check whilst the appellants remained in Colombo is not suggestive of any adverse interest by the authorities in the appellants. However, that was not the central issue in the appellants' case. Their case was that events involving their relatives since they left provided a real basis for their belief that they would now be of particular interest to the authorities. The Tribunal referred to the imprisonment of Mrs Meadows' sister-in-law in the context of discussing the two letters. The Tribunal accepted as factual the statement that Mrs Meadows' sister-in-law had been imprisoned. The Tribunal said: "While the Tribunal accepts that the Applicant's sister-in-law is in prison, it is not clear why she has been imprisoned. It is notable that the Applicant was advised by Red Cross on 21 February 1997 that the prisoner's two adult children regularly visit her from Colombo. A previous Red Cross letter of 20 January 1997 stated that those two children 'are doing fine'. Clearly, there has not been any retribution directed to the prisoner's children on account of their relationship with the prisoner. Nor is there any reason to conclude that the Applicants face a real chance of serious harm because the prisoner has stayed at their house from time to time. The Applicants have been present in Colombo through a long period of ethnic tension and social turmoil, during which they have sheltered many Tamils and advised the police of this fact. Apart from routine security checks, they have not been of interest to the security forces… ." Later in the reasons the Tribunal said: "There is no doubt that some Tamils, particularly those who are young and cannot give adequate reason for being in Colombo may be at risk of harassment in Colombo, but people such as the Applicants who, among other things, has (sic) a long history of residence and work in Colombo, do not, in the absence of other reasons, face a real chance of persecution."(emphasis added) The Tribunal has not considered whether, notwithstanding the appellants' history of residence and work in Colombo until they left at the end of 1995, they now face a real chance of real persecution because there are "other reasons", namely the reasons which led to Mrs Meadows' sister-in-law's imprisonment, and to the apparent murder of her husband. The latter event is not considered at all in the reasons of the Tribunal. Whilst the Tribunal makes the bald assertion that there is no reason to conclude that the appellants face a real chance of serious harm because the prisoner stayed at their house from time to time, there is no consideration by the Tribunal in its reasons of possible explanations for the imprisonment. None is suggested by the evidence other than an involvement with the LTTE. Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 establishes that the appellants will demonstrate a well founded fear of being persecuted for a Convention reason if they show a genuine fear founded on a real chance that such persecution will occur if they return to the country of their nationality. In my opinion the Tribunal has failed to properly address the question of whether, accepting that they have a genuine fear, that fear is founded on a "real chance" of persecution if they were now to return to Sri Lanka. The Tribunal has concentrated its attention on whether the circumstances leading up to their departure at the end of 1995 showed a real chance of persecution at that time, and has not addressed the central issue in the case presented by the appellants that there is now a real chance of persecution. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

MERKEL J: Introduction I have had the advantage of reading the reasons for judgment prepared by Einfeld J and those prepared by von Doussa J. I also agree that the appeal should be allowed with costs, that the determination of the Refugee Review Tribunal ("the RRT") should be set aside and that the appellant's claims should be remitted to the RRT for a re-hearing by a different member. For the purposes of these reasons I accept the summaries of the relevant facts set out in their Honours' reasons for judgment. A critical issue arising on the appeal relates to the failure of the RRT to make it known in plain terms to the appellants that it was considering making a finding that the two letters upon which they relied were fabricated or contrived by them to falsely suggest that they were perceived by Sri Lankan authorities to be implicated in LTTE activities. The finding by the RRT to that effect inevitably led the RRT to determine that there was not a real chance that the appellants faced persecution on account of being suspected LTTE supporters or sympathisers.

The function of the RRT In my view the omission of the RRT resulted in it failing to discharge its functions and duties in accordance with the procedures required by the Migration Act 1958 (Cth) ("the Act") to be observed in connection with the making of its decision (s 476(1)(a)). In order to explain the basis for arriving at that conclusion, it is necessary to briefly consider the nature of the inquisitorial functions and duties of the RRT. The primary function of the RRT was to "review" the decision of the delegate of the Minister refusing the appellant's application for a protection visa (s 414(1)). In the course of that review, the RRT was obliged to give the appellants an opportunity to appear before it to give evidence (s 425(1)). The Act provides for the RRT to conduct its proceedings in a manner which incorporates elements of an inquisitorial proceeding, principally the ability to obtain "such…evidence as it considers necessary" (s 425(1)(b)). See also ss 425(2), 426, 427 and 428. Section 420(2)(b) provides for the Tribunal, in reviewing a decision, to act "according to substantial justice and the merits of the case". In discharging its statutory obligation under s 420(2)(b), the RRT may in some instances be obliged to undertake its own enquiries and investigations: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J, Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ, Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 547-548 per Wilcox J and 554 per Burchett J; Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 413-414 per Black CJ; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560 per Black CJ, von Doussa, Sundberg and Mansfield JJ; Demir v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Ryan J, 19 October 1998) at 22-24. Although the content of the obligation may be a matter of contention depending on the particular circumstances of the case, in my view an uncontentious duty of the RRT whilst conducting a review is to plainly and unambiguously raise with the applicant the critical issues on which his or her application might depend: see for example Singh v The Minister for Immigration and Multicultural Affairs 49 ALD 640 at 645 per Tamberlin J. A failure to raise the critical issues with the applicant undermines the duty of the RRT to give an applicant an opportunity to appear before it to give evidence (s 425(1)). The most obvious application of the duty arises where the issues directly concern the applicant and relate to matters upon which the applicant could reasonably be expected to be able to give evidence. In Durairajasingham v Minister for Immigration and Multicultural Affairs 50 ALD 469 Davies J (at 475) observed that in questioning an applicant: "…the Tribunal conducted the review precisely as s 420 of the Act prescribes. The Tribunal was providing a fair hearing to the applicant by making it clear to the applicant what were factors adverse to the applicant's case with which the applicant should deal. By seeking evidence on crucial points, the Tribunal was ensuring that the decision would consider the substantial merits of the case." His Honour added that it followed from the non-adversarial nature of the proceedings established for the Tribunal under the Act that: "…it is a duty of a Tribunal not only to listen to the evidence which an applicant may wish to give but also to test the applicant's evidence and to direct the applicant's attention to points which are adverse to the applicant's case and on which the applicant might wish to comment." It is appropriate to observe that these duties arise by reason of the inquisitorial process and the statutory provisions to which I have referred (including s 420(2)(b)) and are not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Branson J, 26 October 1998) at 2 and Saliba v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Sackville J, 5 November 1998) at 16-17. Representation can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particularly case, but cannot affect the fundamental duty of the RRT, acting inquisitorially, to review the decision before it on the "merits of the case" in accordance with the duties to which I have referred. As has been explained by Einfeld J and von Doussa J, the omission of the RRT in the present matter in relation to the two letters, resulted in it failing to conduct its hearing in accordance with the procedures required by law. The appellants are therefore entitled to succeed on their appeal on the ground set out in s 476(1)(a).

The RRT determined the case against the appellants on the basis that it had concluded there was not a real chance that they would face persecution on account of being suspected as LTTE supporters or sympathisers. The legal principles applicable to the proper application of the "real chance" test are now well established by the decisions of the High Court: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration, and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

When conflicting material relating to some past event is before the RRT, a finding that one version of events is more probable than another on the balance of probabilities is not inconsistent with the correct application of the "real chance" test. However, the correct application of that test may, in particular circumstances, make it appropriate for the RRT to consider the possibility that any of its findings as to past events were inaccurate. In Guo (at 579-580) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ explained that situation as follows: "It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution." (Emphasis added)

Guo establishes that consideration of whether a certain finding of fact was or might be wrong: · is mandatory in respect of facts found on the basis that they are "slightly more probable than not" if the facts are those relied upon for concluding that an applicant has not been punished or harmed for a Convention reason; · is unnecessary when the RRT has no real doubt that its findings in that regard are correct; · has a varying applicability in cases lying between the two situations stipulated above.

See also Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 at 650 and Demir v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Ryan J, 19 October 1998) at 18-22 and 24.

In the present case, the RRT could not confidently determine that there was no "real substantial basis" for the appellant's claimed fear of political persecution being well founded (see Guo at 577) in accordance with the "real chance" test as explained in Guo, without directly raising with the appellants the issues raised by the two letters upon which the fear was, in large part, said by the applicants to be founded. Whilst the RRT made unambiguous findings of fabrication and contrivance against the appellants in relation to the letters, I would not infer that it had no "real doubt" that its findings were correct when it failed to put that very issue to the appellants.

Thus, in my view the RRT erred in law in that it did not consider whether its findings in relation to the two letters might be wrong. In the circumstances of the present case that omission constituted a failure by the RRT to apply the "real chance" test in accordance with law. For these reasons the appellants are also entitled to succeed on the ground of error of law set out in s 476(1)(e).

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Solicitor for the Applicant: Wisewoulds solicitors

Solicitor for the Respondent: Australian Government Solicitor