Djuraj v Minister for Immigration & Multicultural Affairs

(b) the second respondent accepted that the applicant was an ethnic Albanian Catholic in a predominantly Muslim non (sic) Albanian area;

(c) the finding that the explosion was not motivated by a Convention reason was an error of law."

3 Under the heading "FINDINGS AND REASONS" in its decision, the Tribunal said:

"The applicant's claims are in essence that he fears persecution on return to the FRY because he was the target of religious and ethnic violence. He claims to be an ethnic Albanian of Catholic faith."

4 The FRY comprises the two republics of Serbia and Montenegro. Kosovo is a province of Serbia. Though Serbia has a large ethnic Serbian majority, the population of Kosovo is predominantly ethnic Albanian, most of whom are Muslims. Ethnic Albanians who are Catholic are a small minority religious group in Kosovo. Serbs are another small ethnic minority in Kosovo. 5 In its reasons, the Tribunal described the applicant as a citizen of Yugoslavia who arrived in Australia on 10 April 1999 and lodged an application for a protection visa soon after. The Tribunal accepted that he was who he said he was, ie, that he was Simon Djuraj, that he was born in Decani in the province of Kosovo in Yugoslavia and that, at the time of the Tribunal hearing, he was eighteen years of age. The applicant's evidence about these matters was supported by the birth certificate which the Tribunal said "confirms the name and date of birth he has given and also the fact that he was born in Decani in Kosovo". 6 The Tribunal also found that his family home in Decani was blown up in December 1998. The Tribunal accepted the applicant's claims that his father was injured in the explosion - in the course of the hearing, it said that it did not have any reason to doubt that the applicant's father was hurt and had been in hospital. Though it is not completely clear, the Tribunal appears also to have accepted what the applicant said about his family's movements after the explosion to the effect that they went to Pec in Kosovo near Decani for medical assistance for his father, then to Ulcinj in Montenegro in the FRY and from there, across the border into Albania, where the applicant's father was taken to hospital in Shkoder. The unsupported claims of the applicant were the Tribunal's only source of information about the blowing up of the family home and his father being injured (as well as the subsequent movements by the family). 7 But though it was prepared to accept the applicant's claims about these matters, it is apparent that the Tribunal had considerable reservations about the applicant's credibility and was not prepared to accept as reliable everything he said. It recorded in its reasons some of the inconsistent claims that the applicant made, such as what he had to say in his visa application about when he and his family left Decani to go to Ulcinj in Montenegro, which contrasted with what he said about that at the hearing. There were other inconsistencies between the claims the applicant made at various times in material provided by him and which was before the Tribunal, but to which the Tribunal did not expressly refer in its reasons. It is also apparent that the applicant's credibility and his case for claiming refugee status both suffered heavily because of his reliance on the three documents referred to in ground 2 of his application which the Tribunal concluded were bogus. 8 The Tribunal resolved the applicant's claim to a protection visa by putting to one side some of the issues raised by his claims of past persecution and fear of future persecution without making findings on them and by identifying a decisive answer to the applicant's claim to refugee status in the changed circumstances in Kosovo since his departure sometime before April 1999. It did not, however, rely solely on that consideration: it also here had regard to what it considered to be the absence of any claim by the applicant that he was perceived to be a Serb collaborator, ie, to belong to a group or class at risk of persecution in Kosovo, as bolstering its opinion based on the changed circumstances. 9 The applicant contended that it was not enough to dispose of his application for the Tribunal to find, in reliance on these changed circumstances, that it could not be said that he now has a well-founded fear of persecution for a Convention reason. He argued that, having found that his home was bombed at a time of ethnic and religious violence in Kosovo, the Tribunal was also bound to consider whether, by reason of that past experience, he still had such a fear. It was said that the Tribunal's failure to consider that amounts to an error of law affecting the decision. He relied on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 and what Gaudron J said in Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at pars [68] to [70]. 10 The respondent submitted in effect that the Tribunal adequately dealt with the bombing incident, given that it stated in its reasons:

"The Tribunal is not satisfied that the motivation for the bombing of the house was either religion or any blood feud."

11 The respondent also pointed out that (in a case in which the applicant's claim to refugee status was based upon his fear that, if he returned to Kosovo, he would be persecuted by his mostly-Muslim fellow ethnic Albanians because, as a Catholic, he was associated with the Serbian persecutors of those Muslims) the Tribunal had also stated in its reasons:

"The Tribunal is not satisfied that the applicant was seen as a Serbian collaborator or as an enemy of the Muslims; he has reported no such imputation, except to say that they left Decani because they were Catholics in the midst of Muslims."

12 The respondent submitted that, despite criticisms of the Tribunal's reasoning, it disclosed no error of law within s 476(1)(e), as explained in Yusuf. 13 Apart from the findings set out above, however, the Tribunal made few other explicit findings about the applicant's personal background or experiences in, or reasons for leaving Kosovo that are relevant to whether he is a Convention refugee. The Tribunal did not make any finding on the applicant's claims that he and his family had been the target of religious and ethnic persecution in Kosovo in the past, apart from expressing its want of satisfaction that the bombing incident had been so motivated. Nor did the Tribunal attempt to identify what may have been the motivation for this unusual event, though it occurred at a time when, as it put it, "disturbances and skirmishes had been going on in [Kosovo]". (The paragraph of the US State Department Report on which the Tribunal here relied described what had been happening from early 1998 as "a full fledged separatist insurgency" by Kosovo's ethnic Albanians against the Serbian Milosevic regime, which responded with "a brutal police and military crackdown".) The Tribunal did not make any finding about the applicant's own claim of fear of future persecution in Kosovo for religious and ethnic reasons. This is not surprising since, contrary to ground 3(b) of the application for review, the Tribunal did not even make any findings about whether this Yugoslav citizen was an ethnic Albanian or whether he was of the Catholic faith, as he claimed was the case. 14 These were all important issues for the Tribunal because it had information before it, which it accepted as coming from reliable sources and to which I will refer later, that showed that ethnic Albanians who were Catholics had experienced in the recent past ill-treatment in Kosovo at the hands of their fellow ethnic Albanians who were Muslims and were continuing to experience harassment long after the applicant had arrived in Australia. 15 In order to determine the issues raised by grounds 2 and 3 of the application, it is necessary to deal in some detail with the Tribunal's reasons. I was reminded by the respondent of the well-established principle that "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The reason is there identified, viz, that a court of judicial review "must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision". This principle of restraint applies to all judicially reviewable administrative decisions, including those of the Tribunal. But in applying it to a decision-maker like the Tribunal, the nature and role of the Tribunal is also, I think, to be kept in mind by the Court. Members of the Refugee Review Tribunal perform a significantly different function from public servants in the mainstream of federal executive activity who, from time to time, are called upon to make administrative decisions as part of a range of duties conferred on them. The Tribunal was described by the Minister in the Second Reading Speech on the Migration Reform Bill 1992 as: "A specialist refugee review tribunal … established to provide independent and determinative merits review of onshore refugee status decisions". Members of the Refugee Review Tribunal are appointed for the sole purpose of fulfilling the role of professional decision-makers to "provide quality independent merits review" of lower level administrative decisions (Explanatory Memorandum to the Migration Reform Bill 1992, par 41). The obligation imposed by s 430 the Migration Act 1958 (Cth) to provide in written form both reasons and findings, in the context of its decisions being subject to judicial review, shows that the Parliament expects the Tribunal to be capable of giving a coherent and informative explanation for how it reaches its ultimate conclusion for or against an applicant. The Tribunal accepts this obligation: in its Corporate Plan, set out in the Tribunal's current Annual Report, it promises to "ensure good decision-making by [among other things] providing clear and cogent reasons for our decisions". The principle of restraint is one that cautions against too zealous a search for error. It is not a principle that immunises the Tribunal's reasoning from that critical examination which is part and parcel of the function of a court charged with review of the Tribunal's decision to see if it is flawed with reviewable error. It will usually only be by such analysis that the Court will be able properly to discharge its duty of review, especially now that s 476 has been revealed by Yusuf as conferring on this Court a more extensive review jurisdiction in respect of the Tribunal than had previously been thought to be the position. The point is made in Yusuf at par [69]:

"… Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration."

16 After setting out some of the legal principles governing when a person will be entitled to be recognised as a refugee, the Tribunal set out the applicant's claims as to his identity, about his home in Decani being blown up and his fears of being persecuted because of his Catholic religion "no matter who is in power in Kosovo". Then, under the heading "FINDINGS AND REASONS", the Tribunal summarised his claims based on being an ethnic Albanian of Catholic faith, as set out above, and the conflicting information he had provided in relation to the blowing up of his home. It then dealt at length with the three documents relied on by the applicant to support his claim that he was a refugee. It is important to set out what the Tribunal had to say about these documents in order to understand the basis on which the Tribunal found that the applicant's home was not bombed for a Convention-related reason and that the applicant was not perceived to be a Serbian collaborator or an enemy of the Muslims (a perception which, if it existed was likely to expose him to persecution). The Tribunal said:

"… The statements [in the documents] that the applicant and his family are victims of the war in Kosovo do not sit well with the applicant's account which had the explosion and destruction of their house in Decani in December 1998 whereas the 'war' began on 24 March 1999 (U.S. Dept of State Country Human Rights Reports 1999- Serbia-Montenegro; Introduction). Even given that disturbances and skirmishes had been going on in this area for some time before March 1999, these Albanian documents relate to a different period to the one which the applicant has described.

The document from the Shkoder All Nationality Organisation of Blood Feud Reconciliation reports a blood feud between the applicant's family and 'Islamic family's [sic]' over the fact that the 'Islamic families believe that Simon and his family after they were displaced from their home during the war, gave permission for their house to be used by the Serbians, and therefore are responsible for the death of some of their family members.' The Tribunal notes that the house was blown up on 23 December 1998, long before the Kosovo war started thus the Tribunal is not satisfied that this document is genuine or attests to real events. The Tribunal is not satisfied that the applicant was seen as a Serbian collaborator or as an enemy of the Muslims; he has reported no such imputation, except to say that they left Decani because they were Catholics in the midst of Muslims. This was after an incident with a [Serb] border patrol [from the FRY army] who asked the applicant to say the 'Our Father' to see if he was a Catholic. There was never any indication of the existence of any blood feuds except that the applicant stated his fears that the Serbs might orchestrate incidents to create blood feuds. The Tribunal finds that this document has been created for the express purpose of advancing the applicant's claims.

In the same manner and for the same reasons the Tribunal finds that the document purporting to have been issued by the Directory of the Police of Prefecture in Shkoder on 20 December 1999 does not represent a declaration of events as they happened. Firstly it suffers from the same errors in the timing of the events as the previous document discussed above, about which the applicant has presented his claims, secondly it is a declaration which is at best a report of accounts given to a third person by the applicant or someone acting on his behalf.

The Tribunal is also concerned about the authenticity of these documents in that they are all produced on the same type of paper, without any letterhead and apparently all typed with the same typewriter. The Tribunal considers these documents and their contents to be bogus.

The Tribunal, despite the difficulties with documentation outlined above and despite the different story recounted by the applicant in relation to his return to Decani, accepts that the applicant's house was damaged by an explosion. The Tribunal is not satisfied that the motivation for the bombing of the house was either religion or any blood feud."

17 It then said that, nevertheless, it was concerned: "with determining whether the applicant faces a real chance of being persecuted for a Convention reason should he return to the country of reference" and that "there has been a number of significant changes since the applicant arrived in Australia in the FRY". It proceeded to review reports on the situation in Kosovo covering the period from August 1999 to December 2000. It referred last of all to the UNHCR Report of 5 June 2000 entitled "Kosovo Albanians (CX42493)" and quoted what the High Commissioner had to say about the situation in Kosovo in mid-June 2000:

"A high number of Catholic Albanians feature in reported cases of harassment in Kosovo, primarily as a result of having been accused of collaboration with the Serbs. Although there is no clear-cut evidence of Catholic Albanians being persecuted specifically on religious grounds, there may be certain areas within Kosovo where Catholic Albanians are likely to come under suspicion for collaboration, and where they are therefore at risk."

18 The Tribunal did not question the reliability of this evaluation. But it discounted its significance for the applicant's case because:

"the applicant has not claimed that he or his family have come under suspicion of collaboration with the Serbs, this contention was raised in one of the [three] documents upon which the Tribunal has made findings above."

"The fact that the situation has changed dramatically since the applicant's departure, as outlined in the above information leads the Tribunal to conclude that the applicant does not face a real chance of being persecuted for his religion or his Albanian ethnicity should he return to the FRY."

20 The three documents which the applicant produced to the Tribunal were in the Albanian language. All bear dates in December 1999. On their face, they confirmed his claim to have fled Kosovo for Convention reasons. The Police Prefecture document purported to verify that the applicant was "a refugee in Albania in the period of the war of Kosovo … due to the problems of enmity (blood feud) that were created in the time of the war …". The Albanian Red Cross document purported to verify that "the family of [the applicant] is registered with our Organisation as displaced from Kosovo during the period of the war in Kosovo". The "All Nationality Organisation of Blood Feud Reconciliation" document purported to verify that the applicant "with his family are from Kosovo, refugees of the period of the war in Kosovo …". 21 The Tribunal found that the documents and their contents were "bogus" and that the last of them had been created for the express purpose of advancing the applicant's claims. 22 One of the two considerations the Tribunal relied on to conclude that the documents were not genuine was that all three referred, in effect, to the applicant and his family as having been driven out of their home in Kosovo during "the war in Kosovo": the Tribunal considered that could not be correct because what it described as "that war" only began on 24 March 1999 and the applicant's house had been blown up three months earlier. The other consideration was the Tribunal's concern that all three documents appeared to have been created at the one time. 23 The first ground upon which the Tribunal relied to reject the documents is open to criticism. It is difficult to see how the Tribunal could sensibly conclude that the three documents were bogus for the first reason it gave for that conclusion. The passage in the Introduction in the US Department of State Country Report from which the Tribunal obtained the 24 March 1999 date as the start of the "war", ie, the NATO bombing campaign, and also the information that "disturbances and skirmishes had been going on in [Kosovo] for some time before March 1999" shows that circumstances in which Catholic Albanians were likely to be persecuted by Muslim Albanians in Kosovo did not arise only on 24 March 1999: this US Department of State Country Report demonstrates that Kosovo was in turmoil throughout the preceding twelve months as a result of the Milosevic regime's brutal oppression of ethnic Albanians in Kosovo. 24 But it is unnecessary to consider further the illogicality of the Tribunal's reasoning for considering, on the first ground referred to, that the documents were bogus. It was entitled to reach that view on the second ground it gave. I think the material relied on by the Tribunal to arrive at its second reason for rejecting the documents was sufficient to answer the challenge made in ground 2 of the application. 25 I therefore reject the applicant's contention that there was no evidence or other material before the Tribunal to justify its conclusion on a matter of significance to its ultimate decision that these documents and their contents were bogus. 26 However, the use the Tribunal made of its view as to the want of authenticity of the documents requires further consideration. 27 The Tribunal's conclusion that it was not satisfied that the motivation for the bombing was either religion or any blood feud is confidently expressed. But it did not give any explanation for that conclusion other than that which can be gathered from the passage in its reasons set out above which ends with this conclusion. Nor did it attempt to identify the real motivation for that act, an act of extreme violence, at a time of ethnic turmoil, said by the applicant to have been directed at his family because of their religion, before the Tribunal rejected the claim by the applicant that it was an act of religious persecution. It appears from the passage of the Tribunal's reasons in which it deals with the documents that (though it was still prepared to accept what the applicant had to say about his home being bombed) the Tribunal was heavily influenced, in rejecting the applicant's evidence that the bombing was done to drive out the applicant and his family because they were Catholics, by its conclusion that the three documents which the applicant put before the Tribunal in support of his claim to be a refugee were bogus. 28 It also appears from this same passage in its reasons that, in concluding that it was not satisfied that the applicant was seen as a Serbian collaborator or as an enemy of the Muslims, the Tribunal relied, in part, on its opinion as to the documents being bogus. Claims that the applicant's family were perceived by their Muslim neighbours to be Serb collaborators and had for that reason attracted the enmity of the Muslims were made in two of the three documents. The Tribunal's lack of satisfaction as to whether the applicant was perceived to be an enemy of the Muslims is recorded in the middle of a passage of its reasoning in which the Tribunal sets out its view that the Blood Feud Reconciliation document is neither genuine nor attests to real events and immediately before the Tribunal records an explicit finding that this particular document was created for the express purpose of advancing the applicant's claims. This paragraph, moreover, appears in a longer section of the Tribunal's reasoning in which it explains why it considers all three documents are bogus and do not record actual events. 29 Once the Tribunal found that the documents were bogus, it was, of course, fully entitled to place no reliance on the statements in them to the effect that the applicant and his family fled Kosovo because of persecution they suffered there. But it went beyond that and relied on its conclusion that the documents were bogus to make positive findings adverse to the applicant on two issues of significance to his claim to be a Convention refugee. 30 That documents produced by the applicant asserting that he was a refugee from religious persecution were bogus does not justify a conclusion that the applicant's claim based on other material that he was the victim of persecution because of his religion is also bogus. A court cannot find proved the opposite of that which a witness has asserted because the court disbelieves the witness: Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694. That is not a rule of law applicable only to courts. It is no more than a logical proposition. The want of logic in concluding that, because the party lacks credibility, the true facts are the reverse of what that party asserts them to be is emphasised in refugee cases. Speaking of the pressure of circumstances that lead some applicants for refugee status to tell lies, Gleeson CJ and MuHugh, Gummow and Hayne JJ, in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 at [32], said:

"They reflect common experience and common sense. In Abebe, Gummow and Hayne JJ said:

'… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.'

31 But as the Full Court observed in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 422, want of logic in drawing an inference will not, of itself, constitute error of law, though it may sound a warning note of the existence of possible reviewable error. 32 In addition to relying on its assessment that the documents the applicant put before it were bogus, as justifying refusal to accept the claims therein made that the applicant was exposed to persecution because he and his family were perceived by their Muslim neighbours to be associated with the Muslims' own Serbian persecutors, the Tribunal also considered that these claims should be rejected for the reason that it thought that the applicant did not go further in his evidence beyond saying he and his family had left Decani because they were Catholics in the midst of Muslims. 33 The applicant's evidence, however, went well beyond saying, as the Tribunal suggested, that he and his family had left Decani for no better reason than that they happened to be Catholics in the midst of Muslims. Although he did not make the point in detail or with precision, he repeatedly asserted that he feared persecution at the hands of ethnic Albanian Muslims because he was a Catholic and by reason of his past experiences. Early in its reasons, the Tribunal recorded the applicant's assertion that the bomb was planted in the family home because "they" did not want the family there on account of their Catholic religion. The Tribunal appears to have thereafter ignored this claim by the applicant: that he undoubtedly made such a claim to the Tribunal cannot stand consistently with the Tribunal's statement that the applicant "has reported no such imputation [viz, that he was seen as an enemy of the Muslims] except to say they left Decani because they were Catholics in the midst of Muslims". Further, in his visa application, the applicant said this:

"Q: What do you fear may happen to you if you go back to that country? - I will never go back and live in Kosova, I have no home, no life, no freedom, no rights, no matter who is in control. If the Muslim Albanians take control I will be persecuted because I am Catholic, and we weren't members of the (KLA). If the Serbians retain control I will then be persecuted, hated, and violated by both sides at the same time. I have no future there.

Before we left, our house was blown-up 'with us in it', but we survived …

Q: Who do you think may harm/mistreat you if you go back? - The Serbian authorities will try and kill me again if they are in power. If the ethnic Albanians take control they will try and kill us because they see us as Catholics and not Albanians. I do not want to get involved in any blood feuds with either side …

Q: Why do you think they will harm/mistreat you if you go back? - It is what they have been doing for years. They have always tried to get at me directly or indirectly. My family and I don't belong to either group, the majority of ethnic Albanians are Muslim, I am Catholic and they have always considered us being closer to the Serbs because they are orthodox, on the other hand the Serbs see us only as Albanian and for years have encouraged and instigated religious hatred in my community in order for us to get involved in blood feuds."

34 In oral evidence to the Tribunal, when asked why it was he left Decani in June 1996 with his family, he said:

"We had [to] because they were all Muslims and we were Catholic, a Catholic family and they just people didn't want us to stay in there and they were just trying they were saying bad things and I couldn't even stay in school for long. …"

35 After having told the Tribunal that the population in the Decani area was mostly Muslim, the applicant said, when asked why he thought the bomb had been planted in his house:

"There's was no one liked us there anyone and it just … they just wanted us … it was really just probably a few Catholic families and that they just wanted … you know that didn't want us there."

36 At this point he confirmed the Tribunal's question that the bomb was planted "basically because you're Catholic". When the Tribunal asked him what he was afraid of if he were to go back to Kosovo, the applicant replied:

"What am I afraid of? Very afraid that's the first thing. Those Muslims where we live, they don't even want to see us. They don't even know who we are. They just want to like kill us. That's what they want kill us. That's what they want to do to us kill us mate. …"

37 All these statements by the applicant (who gave his evidence without an interpreter and who did not have the assistance of either a legally trained advocate to elicit his story or the assistance, while he gave his oral evidence, of his friend, Mr Kalaja, who had accompanied him to the Tribunal) were before the Tribunal. It is not possible to describe these statements as not amounting to a claim by him that he and his family were perceived by their Muslim neighbours to be their enemy. Yet the Tribunal asserted that the applicant did not even make such a claim, a separate question entirely from how a decision-maker, faced with such claim, evaluates that claim. 38 In Yusuf, McHugh, Gummow and Hayne JJ, with Gleeson CJ agreeing, said of s 476(1)(e):

"84. … No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out."

39 Though a decision involving only factual evaluations may thus be flawed with reviewable error of law, the task of fact-finding is committed to the Tribunal and this Court can intervene only if the Tribunal's decision is infected with error of law. It is not always a simple task to determine whether, in view of the way it has dealt with material before it, the Tribunal has made a non-reviewable error of fact or a reviewable error of law in the course of its fact-finding process by ignoring relevant information or by acting on irrelevant information. But if it can be seen that the decision-maker has identified information as having significance to the decision it has to make (because it is capable of affecting the decision), but has misunderstood its probative effect or has otherwise misused that information in arriving at its decision, that will I think, at least in general, be an error of fact beyond judicial review. If, however, it can be seen that the decision-maker has overlooked or otherwise ignored information significant to that decision, that, I think, will be properly characterised as an error in the decision-making process constituted by a failure to take into account a relevant consideration and thus a reviewable error of law within s 476(1)(e). 40 As Yusuf shows, where the decision-maker is, like the Refugee Review Tribunal, bound by statute to set out the findings which it regards as critical to its ultimate decision and to give reasons for arriving at that decision, whether such an error of law has occurred in a particular case will commonly depend for its exposure on what emerges from an examination of the reasons given by the decision-maker and of the information before it. 41 I consider that the Tribunal made an error of law because it ignored relevant material, viz, the statements made by the applicant in his visa application and in oral evidence to the Tribunal to the effect if not in express words that, as a Catholic, he, together with his family, was seen by Muslim ethnic Albanians as their enemy. That the Tribunal can be said to have ignored this material is, I think, established by the Tribunal's assertion that he did not even make such a claim and by the Tribunal's failure to mention these assertions by the applicant in its reasons (save that it did early in its reasons note the applicant's claim about why his home was bombed). I do not think the Tribunal's reasons are consistent with the Tribunal having been alert to what the applicant had to say in this regard but having assessed his claims in a factually erroneous way as not amounting to a claim by the applicant that he feared harm because he was perceived to be an enemy with the Muslims. For the reasons given, I do not think the principle of judicial restraint in scrutinising the Tribunal's reasons for possible error is infringed by subjecting the Tribunal's reasons to the sort of examination which I have undertaken. 42 The Tribunal's finding that, in effect, there was no such perception attaching to the applicant was of critical importance to its ultimate conclusion adverse to him: that was one of the grounds it gave for its view that the bombing of his home did not have an ethnic or religious motive. If it had had regard to what the applicant said about being seen to be an enemy of the Muslims, the Tribunal might have reached a different conclusion about the motivation for the bombing and would then have been confronted with powerful evidence of past persecution of an extreme kind in a case in which it accepted as reliable information from US government and other sources showing that Muslim persecution of Catholics continued in Kosovo through the latter half of 1999 well into 2000. By ignoring this information from the applicant, the Tribunal also found support for its critical conclusion that, by reason of the "dramatic" changes in Kosovo since the applicant's departure, he no longer had a well-founded fear of persecution if he were to return to Kosovo. It is apparent that the Tribunal did not resolve the case against the applicant solely on the basis that the situation in Kosovo had so changed since his departure that he could no longer be said to have a well-founded fear of persecution for that reason alone. The Tribunal considered it necessary to take into account not only the changed circumstances, but the fact, as it saw it, that the applicant "has not claimed that he or his family have come under suspicion of collaboration with the Serbs", ie, by their Muslim follow ethnic Albanians. But in finding support for its conclusion based on the changes in Kosovo that the applicant was not perceived to be a Serb collaborator, it ignored the fact that he had made a claim tantamount to that, viz, to be the object of Muslim enmity because of his religion. 43 Why the Tribunal felt the need to take into account this second consideration is, I think, clear enough from its reasons. The material it relied on to conclude that there has been a relevant change in circumstances in Kosovo since the applicant's departure demonstrates the reality of changes at the political level that justify an optimistic view for the future for Kosovo. But that same material, all set out in the Tribunal's reasons, is full of accounts of continuing ethnic and religious harassment and violence and full of reservations about just how uncertain is the future for Kosovo, as an area torn by recent ethnic and religious violence. 44 This material includes four reports by the Reuters News Service in the period 20 October to 3 November 2000. These reports focus on the national elections held in September 2000, and the subsequent ouster of the government of Slobodan Milosevic in early October and on the municipal elections conducted by international administrators in Kosovo in late October 2000. The optimism in the reports centres on the fact that these are the first democratic elections ever held in Kosovo. But there is much in the passages set out by the Tribunal in its reasons from this material that suggests that the Tribunal's conclusion from this material "that the situation [in Kosovo] has changed dramatically since the applicant's departure" cannot be accepted as other than a highly optimistic evaluation of the applicant's prospects of enjoying freedom from harm at the hands of his Muslim fellow ethnic Albanians if he were to return to Kosovo. 45 The report of 29 October 2000 on the then recent elections in Kosovo comments at some length on the continuing tensions between the ethnic Albanians and the Serbs in Kosovo. It states:

"Against the odds, Kosovo has just held the first free elections in its history without bloodshed, but also without the participation of its Serb minority.

… Some 80 percent of the 900,000 registered Kosovans voted, but almost all were ethnic Albanians, and almost none from the formerly dominant Serb minority, who boycotted the polls in protest at their isolation in enclaves guarded by peacekeepers.

… But the ex-rebels retain hero status among many ethnic Albanians and believe their key role in launching Kosovo on the road to self-determination entitles them to rule alone.

… Whichever ethnic Albanian party gains control, all of them are committed to independence and most of their supporters believe the Serbs have forfeited any right to share power or even live in Kosovo, let alone keep the province in Yugoslavia.

That mindset poses a volatile dilemma for U.N. authorities not only long term, deliberating Kosovo's final status, but just weeks from now when U.N. administrator Bernard Kouchner must decide whether to allow Serbian republic elections to be conducted in Kosovo too.

Albanians are sure to oppose the idea, maybe violently. But local Serbs look forward to voting for a new democratic Serbian government, hoping it will relieve their plight.

In any case, Kosovo has a long way to go before good government, democracy and ethnic co-existence reign in a part of the world that has never known them."

46 The report of 30 October comments on the success of moderate ethnic Albanians over extremist ex-KLA Albanians in the Kosovo municipal elections, but notes a comment by the new Yugoslav President, Kostunica, who called these Kosovo elections "invalid because local Serbs boycotted them in protest at ethnic Albanian violence that had confined them to NATO-guarded enclaves". Another of the reports to which the Tribunal referred was the UNHCR report of 5 June 2000 titled "Kosovar Albanians". The Tribunal quoted from this report set out above that contains the evaluation by the High Commissioner that Catholic Albanians may still be at risk at the hands of Muslim Albanians, at least in some areas of Kosovo. This is despite the large NATO military ground presence in Kosovo. 47 This is strong evidence that the Yugoslav government (and the UN and NATO) authorities there continued, at least into mid-2000, to be unable to protect Catholic Albanians in Kosovo from harassment well capable of amounting to persecution by their fellow Muslim Albanians there and that those authorities continued up to late 2000 to be unable to prevent more general ethnic violence in Kosovo. 48 If the Tribunal had not ignored the applicant's claims that he and his family had attracted the enmity of their Muslim neighbours, its ultimate decision may well not have been the same. 49 I would therefore uphold the applicant's challenge to the Tribunal's decision on the ground of error of law. 50 The Tribunal, in determining whether a person has a well-founded fear of persecution for a Convention reason, may also make an error of law if at the end of its fact-finding process it fails, in an appropriate case, to ask "What if I am wrong?". A failure by the Tribunal to ask that question, in such a case, will reveal error of law constituted either by an erroneous understanding of what constitutes a well-founded fear of persecution or a failure to properly apply the legal test governing what constitutes such a fear to the particular facts found by the Tribunal. 51 The circumstances in which the Tribunal is bound to ask that question before it is entitled to hold that a person is not a Convention refugee are illustrated by what was said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. Six members of the Court rejected judicial criticism of the Tribunal for making findings of fact before it evaluated whether there was a real chance of persecution for a Convention reason. They said, at 575 - 576:

"With respect to his Honour, this criticism of the Tribunal's reasons is wrong. For the reasons that we have given, the Tribunal was entitled to weigh the material before it and make findings before it engaged "in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded." Moreover, given the strength of some of the Tribunal's findings - for example, 'the treatment the Applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials', 'the Applicant's illegal departure in 1993 will not result in an imputed political profile', 'these matters will not result in persecution to the Applicant for Convention reasons if returned to China' - the Tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention based.

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.

In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong."

52 In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 a Full Court dealt with an argument that the Tribunal made an error of law in holding that the applicant did not have a "well-founded fear of persecution" because it had not referred to the possible need to ask at the end of the fact-finding process "What if I am wrong?". Sackville J (with whom North J agreed) summarised the relevant principles at 238 to 241. His Honour said at 238, after setting out the passage in Guo at 575 - 576:

"If, on the other hand, it appears that the RRT had no 'real doubt' that its findings were correct, it is not bound to consider whether those findings might be wrong. Nothing in the reasoning of the joint judgment suggests that if the RRT, although apparently having no real doubt as to its findings, should have had doubts, it is bound to consider the possibility that the relevant event might have occurred. Doubtless, this is because an objective test of this nature would require the Court to transgress the boundaries of judicial review, by considering the merits of the RRT's decision. The passage does not explicitly address the approach that should be taken by the Court where the RRT does not make it clear whether it had no real doubt about its findings as to past events (or non-events), or whether it made the findings on the bare probabilities."

53 In Dhiman v Minister for Immigration and Multicultural Affairs [2000] FCA 221 a Full Court constituted by Sundberg, Katz and Hely JJ confirmed that where a Tribunal has found facts on the bare probabilities, it should ask itself whether it might be wrong. 54 Though in some cases it may be possible for the Tribunal to determine whether an applicant has a well-founded fear of persecution by making findings on all the factual issues relevant to that question according to whether the facts are established on a clear preponderance of the probabilities or on the bare probabilities, it may not be possible, in the circumstances of other cases, to resolve the issue of a well-founded fear of persecution in either way. The state of the material before the Tribunal may prevent such an approach, either in whole or in part. Yet the Tribunal must still decide whether a well-founded fear of persecution exists. In the context of dealing with the proper approach the Tribunal should take to fact-finding, the Full Court of this Court, in Epeabaka, said at 419 - 420:

"Findings of fact based on likelihood will usually be findings made on the balance of probabilities arising from the available information before the decision-maker. However, when dealing with the claims of an asylum seeker, the available evidence might not imbue findings so made with the degree of confidence that justify the conclusion that an asylum seeker does not have a well-founded fear of being persecuted. It is for this reason that the civil standard cannot be universally applied to the fact finding process in claims of this kind. It is necessary to recognise the risk of error in adopting such a fact finding process, and to make allowance for it. The manner in which this can be done was explained by Kirby J in Wu Shan Liang at 293: …"

55 The Court then set out Kirby J's dictum in which he stated that in determining the issue of a well-founded fear of persecution, it may be necessary for the decision-maker, in the end, to return to the question "What if I am wrong?", notwithstanding that it has made findings on a range of matters. 56 Given the nature of the task which the Tribunal must confront in determining whether a person has a well-founded fear of persecution, if it appears from the Tribunal's own reasons that it may have been uncertain as to the reliability of an applicant's claims of persecution for a Convention reason in the past (as evidenced by its failure or refusal or unwillingness to make findings on matters raised in those claims) and if it further appears that a resolution of that uncertainty on those matters in favour of the applicant might have affected the Tribunal's decision adverse to him, then I think that the Tribunal will be bound to engage in reasonable speculation as to whether the applicant may have a well-founded fear of persecution encapsulated in the "What if I am wrong?" test. Failure by the Tribunal to do that will infect its decision with error of law. 57 The Tribunal was not able to identify a possible motivation for the violent attack on the applicant's home. Kosovo was then in turmoil because of Serbian oppression of ethnic Albanians. The paragraph in the Introduction in the 1999 US Department of State Country Report on Serbia-Montenegro dated 25 February 2000 from which the Tribunal obtained the 24 March 1999 date as the start of the "war" and also the information as to the disturbed situation in Kosovo "for some time before March 1999" is as follows:

"… Milosevic's control over Kosovo ceased in June 1999, when it came under the authority of the United Nations Interim Administrative Mission in Kosovo (UNMIK). The Milosevic regime's oppressive policies toward Kosovo's ethnic Albanians quashed any prospect of interethnic cooperation and subsequently led to a full-fledged separatist insurgency that erupted in early 1998. In response the regime undertook a brutal police and military crackdown against the separatist insurgents and civilian population in Kosovo. After talks in February and March 1999 in Rambouillet failed to resolve the matter diplomatically, Serbian forces continued a full-fledged campaign of ethnic cleansing against civilians and forced 850,000 Kosovar Albanians to flee the province, and hundreds of thousands of Kosovar Albanians were internally displaced. NATO forces began an air campaign against the Serbian forces and regime on March 24. The NATO campaign succeeded, forcing Milosevic to withdraw his troops from Kosovo in early June and allowing refugees and displaced persons to return to Kosovo."

58 In the Introduction to this State Department Country Report, it is also said of the first half of 1999:

"… Serbian police and military forces committed numerous serious and systematic human rights abuses, especially in Kosovo.

Discrimination and violence against ethnic Albanians, Muslims, Roma, and other religious and ethnic minorities worsened during the year. Police repression continued to be directed against ethnic minorities and police committed the most widespread and worst abuses against Kosovo's 90 percent ethnic Albanian population."

59 In the section of this same report dealing specifically with Kosovo in the second half of 1999, ie, after the end of the NATO bombing campaign and after Kosovo had come under UN administration, it is said:

"Religion and ethnicity in the province are so closely intertwined as to be inseparable. Serious discrimination against, and harassment of, ethnic minorities was common in the province, and the conflict raised ethnic tensions elsewhere in the country with implications for religious intolerance.

Although UNMIK took extra steps in the months following the end of the conflict in June to ensure that members of all religious groups could worship safely, Bishop Artemije, the leading cleric of the Serbian Orthodox Church in Kosovo, declared that the city of Prizren was no longer safe

As of December, Serbian Archbishop Artemije reported that more than 80 Orthodox churches had been destroyed, damaged, or desecrated. …

The small Albanian Roman Catholic community, largely centered in the southern and western part of Kosovo, has complained that KLA members or others acting in the name of the KLA have harassed Catholics and hindered religious activities on the pretense that Catholics collaborated with the Serbs during the conflict.

In the first 6 months of the year, hundreds of thousands of ethnic Albanians and Muslims in the province continued to be driven from their homes and fired from their jobs on the basis of religion or ethnicity ….

In the second half of the year in previously Serb-dominated areas, Albanians harassed and intimidated Serbs into leaving …. According to Human Rights Watch, uniformed KLA members participated in an unspecified number of rapes and murders of Serb and Romani women during the summer, but there is not sufficient evidence to substantiate allegations that the ethnic Albanian leadership planned such attacks. In some communities, the situation became so grave that KFOR [Kosovo Force] had to provide 24-hour protection to Serbs residing in those areas.

Despite the presence of UNMIK and KFOR, numerous clashes between Kosovars and Serbs continued into the fall …"

60 This report, which was before the Tribunal and upon which it was prepared to rely, records extensive and extreme persecution of the mostly Muslim ethnic Albanian population of Kosovo by Serbs in the first six months of 1999 until UNMIK came on the scene and, in the last six months of 1999, extensive and extreme persecution of the Serbian population of Kosovo by ethnic Albanians despite the UN and NATO military presence there then. The report also records in this same period harassment of the small Albanian Roman Catholic community largely centred in the southern part of Kosovo (containing the applicant's home town of Decani) and the western part of Kosovo, by Kosovo Liberation Army members or others acting in the name of the KLA "on the pretense that Catholics collaborated with the Serbs during the conflict". The Tribunal also noted from the UNHCR report of 5 June 2000 that harassment of Albanian Catholics in Kosovo by ethnic Albanian Muslims was continuing as at mid-2000 again, despite the UN and NATO presence there. Such harassment in that context is well capable of giving rise to a well-founded fear of persecution for a Convention-related reason: see Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 at par [24]. 61 The case cannot, I think, be approached on the basis that the Tribunal made explicit findings against the applicant on such a range of relevant issues as to absolve it from the duty of engaging in reasonable speculation as to whether the applicant had a well-founded fear of persecution. The Tribunal concluded that the applicant's house was deliberately bombed at a time when Kosovo was in turmoil because of Serbian oppression of ethnic Albanians, most of whom were Muslim. Though the Tribunal was not satisfied that the bombing was done for a Convention-related motive, it was not prepared to identify what the motive was or might have been for this act of spectacular violence in a community torn at the time by ethnic and religious strife. Further, the Tribunal was unwilling to make findings on other issues relevant to the applicant's claim to be a refugee, including whether he was in fact an ethnic Albanian citizen of Kosovo and a Catholic. It made no finding on the important claim by the applicant that he was a Catholic in the midst of Muslims, ie, in the midst of people highly likely to harbour deep antipathy to their own Serbian oppressors and anyone associated with the Serbians whether by religion or otherwise. It had information before it from official sources which it was prepared to accept as reliable that showed that ethnic Albanian Catholics were experiencing persecution by Muslim ethnic Albanians in Kosovo long after the UN and NATO established themselves there. This all demonstrates, in my opinion, that the Tribunal was in such a state of sufficient uncertainty about the justification for the applicant's claim to be a refugee as to require it to have asked, at the end of the day, "What if I am wrong?". This is so, in my opinion, notwithstanding the certainty with which the Tribunal expressed itself on the limited range of matters upon which it did make findings. 62 At the very end of its reasons, the Tribunal included the following brief statement that was the subject of brief comment by the respondent:

"The Tribunal also notes that the applicant spent the last two and a half years of residence in the FRY in the Republic of Montenegro where he had employment [ie, from mid 1996 to late 1998]. Although the concept of relocation does not apply in this case, the 'reasonableness' test as discussed in Randhawa (Randhawa v MILGEA (1994) 52 FCR 437) provides the basis for a consideration that the applicant, should he wish, does not need to return to Kosova but could return to other parts of the country, including and especially Ulcinj in Montenegro where he has in the past been able to work and has not reported any difficulties of the kind raised in his claims.

The Tribunal, having regard to the above discussion, finds that the applicant does not have a well-founded fear of being persecuted for a Convention reason should he return to the FRY."

63 The "concept of relocation", as the Tribunal described it, can be gathered from what Black CJ, with Whitlam J's concurrence, said in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 441:

"A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin. Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be at one's own state."

64 As appears from Randhawa at 442 - 443, this concept or principle of relocation to a safe part of the refugee-claimant's own state is qualified to the extent that if it is not, as a practical matter, reasonable in all the circumstances for the claimant who establishes a fear of persecution in the home part of his national state to be expected to relocate to another part of that state where he will be free of persecution, he will still be entitled to be recognised as a refugee under the Convention. 65 The Tribunal said that "the concept of relocation does not apply in this case". Having said that, it is difficult to understand how the Tribunal could have considered that what it called "the reasonableness test" as discussed in Randhawa provided the basis for the conclusion (if the Tribunal did truly reach such a conclusion) that the applicant should be denied refugee status because he had the option of returning to parts of the FRY outside Kosovo, where he has lived and worked and has not reported any difficulties in the way of persecution. 66 If the Tribunal should be understood in this final passage of its reasons as having found a discrete ground in this "reasonableness" test for refusing the applicant's claim to refugee status, in my opinion, the Tribunal's reasons here reveal error of law constituted by its misunderstanding of the relationship between the relocation principle and the reasonableness qualification to it. 67 It is doubtful, in any event, whether the Tribunal did conclude that there was such a discrete ground for rejecting the applicant's claim. In its reasons here, the Tribunal uses language that suggests that it did not go beyond noting, without expressing a concluded view on it, a possible argument adverse to the applicant's claim. Further support for so understanding the Tribunal's reasons is provided by the fact that it did not attempt any evaluation of conditions in Montenegro at times relevant to its determination on the applicant's claim, something that would be necessary for it to consider, given that the applicant left Montenegro in late 1998. It might be thought essential for the Tribunal to do this before it could reject the applicant's claim on such a basis. 68 I would set aside the decision of the Tribunal made on 8 January 2001 that affirmed the decision of the delegate of the respondent not to grant the applicant a protection visa. I would also make an order referring the matter to the member of the Tribunal who made the decision for further consideration according to law. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Solicitor for the Respondent: Blake Dawson Waldron