The appellant submitted that the approach of the RRT to its task of assessing the credibility of the story told by the appellant also involved an error of law within the meaning of s 476(1)(e) of the Act. In Eshetu's case at pp 304-305, Davies J expressed the view, which we consider it appropriate to follow, that the "applicable law" for the purposes of s 476(1)(e) -
"will include not only criteria specified in the Act and Migration Regulations but also the substantive elements of the s 420(2)(b) requirement that the Refugee Review Tribunal act in accordance with the substantial justice and merits of the case."
(See also Burchett J at p 317)
The appellant accepted that the determination of the credibility of a witness in legal or administrative proceedings may be an important part of the role of the trier of fact in any given case. However, he contended that decisions of the High Court such as Abalos v Australian Postal Commission (1988) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472 are distinguishable in the context of judicial review of decisions of administrative bodies such as the RRT. Such authorities, it was argued, are to be applied only where a decision on credit has been made: -
(a) by a court constituted by judges with years of legal training and security of tenure;
(b) where pleadings have identified the issues for decision so that witnesses are on notice of the relevant issues;
(c) in a context in which legal representation is the norm so that the impartiality of the judge is not infringed by his or her involvement in the process of obtaining evidence from a witness;
(d) in a context in which careful attention is paid to the formal qualifications of any interpreter, and to the quality of the interpreting service provided by him or her; and
(e) following a hearing open to public scrutiny.
Counsel for the appellant observed that the RRT is different from a court of law in each of the above regards. Moreover, the appellant submitted that refugee cases involve special considerations so far as credibility is concerned. In support of this submission he referred us to a number of academic articles discussing this issue (eg. Professor Hathaway, The Law of Refugee Status" (1991, Butterworths) at pp 84-86; Taylor, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions" (1994) 13 University of Tasmania Law Review 43 and Kneebone, "The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role?" (1998) 5 Australian Journal of Administrative Law 78).
We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the knowledge and experience of members of the RRT may be expected to assure that they are sensitive to those special considerations. The specialist nature of the experience of members of the RRT was recognised by Kirby J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 394.
This passage from Hathaway [cited above] summarises the discussion:
"First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the [Immigration Appeal] Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with the testimony given at the hearing is thus highly suspect, and should be constrained in the contextually sensitive manner discussed previously in Chapter 2.
Second, it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant's testimony. A claimant's credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution. Because an understandable anxiety affects most claimants compelled to recount painful facts in a formal and foreign environment, only significant concerns about the plausibility of allegations of direct relevance to the claim should be considered sufficient to counter the presumption that the sworn testimony of the applicant is to be accepted as true. As stated in Francisco Edulfo Valverde Cerna [Immigration Appeal Board Decision, 7 March 1988]:
The Board does not expect an applicant for Convention refugee status to have a photographic memory for details of events and dates that happened a long time ago, but it is reasonable to expect that important events that happened as a consequence of other events should be found to have taken place in some consistent and logical order.
Ultimately, however, even clear evidence of a lack of candour does not necessarily negate a claimant's need for protection:
Even where the statement is material, and is not believed, a person nay, nonetheless, be a refugee. 'Lies do not prove the converse.' Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility." (footnotes omitted)
As we said in Kopalapillai v Minister for Immigration and Multicultural Affairs) Full Court of the Federal Court of Australia, unreported, 8 September 1998), Professor Hathaway's cautions amount to sound and sensible advice to, and guidelines for, decision makers, - in this case the RRT.
Did the RRT in the present case fail to comply with the substantive elements of the requirement s 420(2)(b) that it act in accordance with the substantial justice and merits of the case by failing, as the appellant contended, to take sufficient account of the special considerations affecting refugee cases so far as assessments of credibility are concerned? In answering this question it is important for us to bear in mind that it is not open to the appellant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 - 36:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
As we said in Kopalapillai v Minister for Immigration and Multicultural Affairs (Full Court of the Federal Court of Australia, unreported, 8 September 1998),
"the crucial criterion for the grant to the appellant of a protection visa was that the Minister, or on review the RRT, is "satisfied" that the appellant is a person to whom Australia has protection obligations under the Refugee Convention. A decision as to "satisfaction" is not immune from review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). However, it is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision maker, and not the satisfaction of a judge or a court, the determinant of eligibility for the grant of a protection visa. That is, it is part of the test of eligibility that such satisfaction be entertained by a decision maker who may not be legally trained, does not enjoy security of tenure, will not ordinarily conduct a public hearing and may involve himself or herself in the process of obtaining and elucidating evidence. Incidentally, we wish to make it plain that we do not consider that any, or all, of the above features is or are inimical to fair and just factual determinations. A number of highly regarded fact finding bodies and tribunals in this country share some or all of the above features.
Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43). Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo's case at p 191, to a requirement for a "positive state of disbelief" was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist." (at 16)
Applying these principles to the present case we agree with his Honour's conclusions in that the RRT made no error of law in reaching its conclusion on the credibility of the applicant. We also agree with the primary judge that the RRT made no error of law in the use which it made of those conclusions. We reject the submission that the approach of the RRT to the task of assessing the credibility of the story told by the appellant involved an error of law within the meaning of s 476(1)(e) of the Act.