Ismail v Minister For Immigration & Multicultural Affairs

If they want the victory to win by them, they do not think about the community part, they won't think about the Tamil people. Ten Tamils may die in the face of having victory for the people. The reason for that because they were attacked, no? You know, they are unable to think about the casualties. When you join in a thing like this from common people, ten people may die. If they were to succeed, they do not think about this.

I feel sad for the people who are dying, but at the same time if I think about how my family was separated. No body felt sad for me at that time. So I think only how I was separated from my family and I have been deprived. I sympathized with the Tamil people who are dying and I also sympathize with any human being who is dying, but when I was in distress there was no body to sympathize with me. I separated from my family, and my misery took enormous proportions.

Tribunal: What will you think if your sons went and joined the LTTE?

I do not know how they can join, because my children themselves do not like me joining as they know the terribleness of the group. How can they join, they cannot join. They do not like even my joining. As they grew they know it is dangerous."

17 It is clear that the views of the Tribunal set out in the passage from its reasons recited earlier were influenced by reliance upon an erroneous interpretation of the applicant's answers set out above. The proper interpretation shows that the applicant did not make the statement attributed to her by the Tribunal relied upon by it for the conclusion that the actions claimed to be undertaken by the applicant were inconsistent with her professed views or beliefs, namely, that the LTTE was "a terrible violent group who (sic) were (sic) unconcerned about the fate of ordinary Tamils". 18 It may also be noted that the other ground recited in that passage for finding the account provided by the applicant to be unconvincing ends with a non sequitur. The Tribunal states that it found unconvincing the applicant's reasons for deciding to support and assist the LTTE in 1996. By that statement the Tribunal meant, as it indicated later in its reasons, that it did not accept that any such decision or action by the applicant occurred as claimed by the applicant. In the passage referred to above part of the reason for not accepting the applicant's account is based on the acceptance of the applicant's evidence, and that of her husband, that he and both sons "strongly opposed her decision" to support the LTTE. Perhaps the Tribunal meant to say that it considered it unlikely that the applicant would ever contemplate making such a decision if she knew that her husband and sons would oppose it, but that is not how the reasons are expressed. 19 Further explanation provided by the Tribunal for its conclusion that the applicant was not a credible witness consisted of the following: "I find the claim that the LTTE approached (the applicant) in early 1996 and asked her to distribute information for them implausible. She claims she was approached because the group knew about her background and the violence which her family had experienced in 1983. However, according to her own evidence, she had no contact with the group between 1983 and 1996 and no history of supporting the group. The only political group she supported prior to this contact was the TULF which, as (the applicant) agreed, had nothing in common with the LTTE. When I expressed doubt about the claim that the LTTE had contacted her in 1996, (the applicant) tried to overcome this deficiency in her evidence by claiming that she had sought out the LTTE after having a change of heart about supporting TULF. However, this contradicts the evidence she had given previously, when she stated to both the Department officer and to me that she had been approached by the LTTE because they knew about her past problems." 20 That passage misstates and thereby misunderstands the applicant's statements. In her letter of 22 May 1997 set out above, which, in the absence of any suggestion to the contrary, may be assumed to be consistent with the statements made by her in the interview with the Department's officer conducted on the same day, the applicant stated that in early 1996 she had been informed she had to meet a member of the LTTE. 21 The relevant questions put by the Tribunal and the answers given by the applicant are as follows. The corrected interpretations are set out in bold type "Tribunal: Are you actually a member of the LTTE?

Matale is a small place, so all the Tamils who have been affected and who is affected that is how they to those people and gather them. That is how they came to me. Matale is a small area, a lot of people are there who have suffered atrocities. Tigers are like that, you know, they go to people who have suffered, one man took me to that place he…

Matale South. It is more like a hilly area near Kandy. The hilly area near Kandy where the Kalada Maligawa is.

Tribunal: Most people who live in that area, what party do they support?

Matale area is fully affected by Sinhala people. Most of the people who suffered atrocities are like tigers. Whole of Matale suffered atrocities by the Sinhalese.

Tribunal: What is their political view, do they support the LTTE?

Few of them may support the LTTE, because they are scared, they would not show they are supporting anybody. Nobody will know which group they are supporting. If anybody points out and say that they are Tigers they know; other than that most of them are supporters of the LTTE Some people support the LTTE, some people keep silent because, they are scared to say, but nobody knows who is in the LTTE cadres. If somebody identifies only they will be known. But most of the people there are supported of the LTTE.

Tribunal: When you distributed the noticed did you tell the people they are LTTE notices?

Tribunal: You did, it must have been dangerous then?

It is dangerous. I did understand, but I continued to do this for nine months. Only if somebody points out and fix me up only it is dangerous, but I have been doing that for nine months. It is dangerous no doubt. But there are a lot of people who have suffered like us. Only if someone fixes me it is dangerous. I have been doing this for the last nine months. I did that without getting caught. If someone gives a tip off of course I will get caught.

Tribunal: What is the attitude of the LTTE towards the Muslim people?

Nothing specially told anything about Muslims, but they have bombarded many mosques, destroyed many mosques.

Tribunal: I have to tell you quite frankly, it seems to me very unlikely by somebody from the LTTE would come to you, who has never been involved with the LTTE? These problems have occurred ten years before and you had been involved with a political party that opposed the LTTE, suddenly risk exposure by asking you to distribute leaflets.

When my children were small every minute of the time, I was living with a death fear only every minute I have to grow my children. I have already told you in the previous interview everything, I have to force my children to go out of the place and I brought my brother's son and still I could not keep him with me. I had to send him out and as I could not attend my father's funeral everything added up like, every minute I was living there with fear that I might die at anytime. It may be after so many years, but I was dying little by little in that country. When my children were growing up I was pushed into difficulties. I have already told a but this in my last interview. I was forced to send my children away out of the country one by one. I could not attend my father's funeral. I brought up my brother's son from infancy. I could not keep him with me. I was tormented to the utmost and every minute of time I lived mortally frightened.

Tribunal: I can certainly understand that the situation in Sri Lanka would make people fearful from the area that you come, I understand that it is not one of the areas, which has been most severely affected by the violence. Nevertheless I find it difficult to understand why suddenly in 1996 a Tamil Tiger will come to somebody like your background been involved in the TULF, suddenly ask you distribute these leaflets. It is also that fact that your husband is Muslim, the LTTE attacked and killed many Muslim people and attacked their mosques, should seem to me to raise some questions about your readiness to support that group.

He did not come to me actually, I went searching for him. He did not come to me. I went looking for him.

Tribunal: You told me just a minute ago he came looking for you.

I have already told out in the last interview one of the member of the TULF was the one who was before a member of the TULF took me to that place, then he went and introduced me to that man and after that only he gave me all these papers. A former member of the TULF only took me to him. I have already told this in the last interview. I went there and I was introduced to him after that only they gave me the papers.

22 Putting to one side ascertainment of what the Tribunal had in mind in the expression "deficiency in her evidence", the finding of the Tribunal that the claim by the applicant that she had sought out the LTTE was a claim of recent origin inconsistent with earlier statements made by her, appears to be based on the mistaken interpretation of the applicant's evidence presented to the Tribunal. 23 As indicated in the corrected interpretation set out above, the Tribunal was not informed by the interpreter that in answer to the Tribunal's question, "How did this person know you?" the applicant had included in her answer a statement that a man had taken her to "that place". Whether the applicant had completed her answer at that point is not clear but, in the context of the material as a whole, 'that place' must be taken to be the place of meeting with the LTTE representative. That response, of course, was consistent with her statement on 22 May 1997 that she had been informed that she had to meet a member of the LTTE and had done so. The Tribunal's mistaken understanding of the applicant's answer is the only explanation for the Tribunal putting to the applicant the following question "You told me just a minute ago he came looking for you." 24 The applicant's response to that assertion was that a former member of the TULF had taken her to meet the LTTE representative. That was consistent with her statement in her letter of 22 May 1997 and with her response to the earlier question put to her by the Tribunal correctly interpreted. 25 It follows from the foregoing that the errors made by the interpreter at the Tribunal hearing were material to the formation of the conclusion of the Tribunal adverse to the applicant and that the applicant was prevented from giving evidence to the Tribunal on matters relevant to her claim to the status of a refugee. 26 The essential requirement is that the interpretation provided be of sufficient standard to ensure that justice is done, and is seen to be done. (See: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290-292.) Errors by interpreters which lead a Tribunal to make adverse findings material to an applicant's claim will mean that such a requirement has not been satisfied, and ground for an order for review will be made out under s 476(1)(a) of the Act. (See: Perera v Minister of Immigration and Ethnic Affairs [1999] FCA 507 at para 46.) 27 Although the Tribunal recited other grounds for finding that the applicant was not "a truthful or credible witness", material findings by the Tribunal relevant to credit based on errors made by the interpreter cannot be said not to have affected the Tribunal's overall conclusion that the applicant was not a credible witness. It would be quite unsafe to conclude that the Tribunal would have reached the same conclusion had its deliberations not been affected by the material findings identified. 28 Indeed scrutiny of some of the other grounds relied on by the Tribunal suggests that the findings based on an incorrect interpretation of evidence played some part in the formation of an unfavourable view of the applicant as a witness. 29 For example, in its reasons the Tribunal stated that it had noted the applicant's statement that her sons "did not follow any religion" and preferred the evidence of her husband who stated that the sons followed his religion. The application form completed by, or on behalf of, the applicant states that her husband and each of their sons bear the name Mohamed Ismail. The Tribunal appears to have misunderstood the applicant's evidence given to the Tribunal at the hearing. The relevant questions put by the Tribunal and the responses of the applicant are set out below, with corrected interpretation set out in bold type. "Tribunal: What religion are you (sic) children being raised in?

They are common. I am a Hindu. My husband is a Muslim. I am a Tamil, he is a Muslim, therefore they gave us neutral treatment.

They are common. That is not that they do not have a religion in the sense, at this stage they do not consider.

Tribunal: What do people consider them to be Muslim or they are considered to be Hindu.

As you know in Sri Lanka the problem is between the Tamils and the Sinhalese and because they are my children they knew that I am a Tamil and my children are more considered as Tamils than Muslim. As you know the conflict in Ceylon is between the Tamils and the Sinhalese and since they know I am a Tamil, and mine is a Tamil family, they would attack my children who are considered Tamil children.

Tribunal: Don't they say that they are your husband's children? Muslim Tamils as I understand are in a very different position than a Hindu with regards to the LTTE in the situation in Sri Lanka.

Because more affected was my family, my house was burnt as our mother tongue was Tamil, we being affected and my children have suffered a lot and my family has suffered a lot. The yare more considered to be my family because my children when they were age 3 and 4, I had to go and stay in the jungle with my children alone. Whatever you say, our entire family was affected. They beat us up and have burnt down our family house. Mostly I used to live with my mother. Since my mother is Tamil the children considered to be Tamils; that is why they aimed at my children even at the tender age of 3& 4. When they were small I have been hiding in the jungle with them."

30 It seems reasonably clear that the responses of the applicant were to the effect that the religion followed by her sons would not be relevant to whether there was a risk of attack upon the applicant and her family by Sinhalese, by whom the applicant, her husband and sons would be regarded as Tamils whatever religion any of them followed. The applicant did not say that her sons did not adhere to the Muslim religion. In this part of the hearing the Tribunal appeared to be considering whether people of Muslim faith were at risk of attack from the LTTE whilst the applicant's response was an explanation that the relevant conflict was between Tamils and Sinhalese. The root of the applicant's claim was that as Tamils there was always a risk that she and her family would suffer mistreatment at the hands of Sinhalese. She stated that in 1983 her family home had been attacked and burnt by Sinhalese and, thereafter, her siblings and a parent had to resettle in India, Australia and Canada. This was the underlying circumstance that gave rise to her fear of persecution by Sri Lankan authorities if she were perceived by them to have a political opinion that tolerated or supported objectives of the LTTE. 31 Another example of the Tribunal readily perceiving inconsistency in the applicant's evidence from equivocal material occurs in the reasons of the Tribunal where it states that a claim by the applicant that neighbours who had introduced her to the LTTE had been detained and tortured after bomb blasts had occurred in the Matale area, was not mentioned by the applicant until the hearing before the Tribunal. The Tribunal stated that it had perused issues of a Sri Lankan publication for the months of February 1997 and March 1997 being a digest of newspaper headlines and commentaries, and had not seen mention of "a bomb blast leading to round-ups or arrests in Matale or elsewhere in Sri Lanka in March 1997". The only parts of the record of the hearing that bear upon this question are the following: "Tribunal: What do you thing (sic) will happen if you went back to Sri Lanka now?

If I go. At once they will catch me at the airport.

Tribunal: Because you say your were involved with the LTTE?

Yes, as soon as I came here, people to whom I have already issued the notice have already pointed out that I was the one I did.

Tribunal: Why should they suddenly do that after you left, not do it before, while you were there?

In Sri Lanka, a lots of this are happening if anywhere a bomb blasting happens, at once they come and round up the Tamil area, take some one and beat someone ask them to say anything. So naturally, people say what has happened."

and a statement by the applicant at the end of her evidence: "Tribunal: That's all the questions I want to ask you at this moment. Have you got anything to say before I say (sic) your husband to come in?

In the last thing in the Immigration when I told them I distributed those notice for nine months, they did not believe me. My neighbor was in front of my house. With them only I distributed all these things. When they went and caught them took them to police and beat them and all of them said I did. Thereafter only they came to my house and checked the house and took my son and detained him for three days, beat him so much. Otherwise he would not have identified his mother. So he has identified his mother and told that I belong to that movement."

32 It is to be noted that it is not recorded that the applicant stated that neighbours "who had introduced her to the LTTE" had been detained and the reference to 'a bomb blasting' appears to be a general statement seeking to illustrate how purges by authorities can be set in train. It was the applicant's case that the events of detention, torture and identification of the applicant as an LTTE supporter, occurred in March 1997, shortly before the applicant made application for the Protection Visa. When in May 1997 the applicant stated that her son had been tortured in police custody and had revealed her association with the LTTE and, therefore, she feared that she would suffer persecution if returned to Sri Lanka, it did not follow that at that time she must have known all that had occurred in Matale in March 1997, in particular, that her neighbours had suffered like treatment. Furthermore, if the Tribunal could conclude that the applicant had said that she had been informed that a 'bomb blast' occurred in Matale in March 1997 and a monthly information service providing summaries of headlines and commentaries from major Sri Lankan newspapers did not refer to such an event, it would seem to be drawing a rather long bow to conclude that such an event did not occur and, therefore, that the applicant's statement that she had been informed that her neighbours and her son had been detained and tortured in March 1997 reflected adversely on her credit. 33 After the Tribunal hearing the applicant's son was requested, by message conveyed by a family friend who returned to Sri Lanka from Australia, to provide an account of what had occurred in March 1997. At that time the son was 27. He provided a letter to his mother dated 7 August 1998. The contents of the letter were translated by the Translation Service of the Department and forwarded to the Tribunal. The letter bore an endorsement by the President of the Board of Trustees of the Jumma Mosque at Matale confirming that the facts set out in the letter were true. 34 The letter stated that in March 1997 the army had carried out a "cordon and search operation" in the surrounding Tamil area and that on 9 March 1997 police had searched the house opposite the applicant's residence and arrested occupants. The son asserted that these persons were beaten and persecuted had given "all information" about the applicant. On 12 March 1997 police searched the applicant's house and took the son into custody. It was stated by the son that the police had claimed that the applicant had assisted "enemies of the Government". In response to torture the son had confirmed what was alleged to have been said about the applicant by others taken into custody beforehand. 35 The Tribunal stated that it considered the statement made by the applicant's son but "in view of…findings regarding credibility of (the applicant's) claims" found the statement to be "a self-serving document" to be "given…no weight." 36 As explained earlier in these reasons the finding of credibility referred to by the Tribunal is itself unsafe and, therefore, the Tribunal's treatment of the account provided by the son is affected in like manner. 37 Finding relevant facts and determining whether a person is entitled to the grant of a Protection Visa are likely to be very difficult tasks for a decision-maker. "The debate regarding the standard of proof reveals some of the inherent weaknesses of a system of protection founded upon essays in prediction. It is no easy task to determine refugee status; decision-makers must assess credibility and will look to the demeanour of the applicant. Information on countries of origin will often be lacking or deficient, so that it is tempting to demand impossible degrees of corroboration. The applicant's testimony may seem unduly self-serving, though it could scarcely be otherwise, absent anyone else to speak on his or her behalf. The onus of establishing a well-founded fear of persecution is on the applicant, and some objective evidence is called for; but documentary corroboration is frequently unavailable or too general to be conclusive in the individual case." Guy S. Goodwin-Gill "The Refugee in International Law" (Clarendon Press, Oxford, 2nd Ed. 1996) at 39. 38 A person, or Tribunal, performing that function must take considerable care before refusing the application on the ground that it has been concluded that the applicant is "not a credible witness." In this case the son, whom the Tribunal accepted was of the Muslim faith, has provided a statement vouched for by a person of apparent authority in Islamic organisation. By the nature of the application, evidence provided by an applicant for refugee status is self-serving. To so describe, and dismiss accordingly, corroborative material produced by an applicant is not sufficient to meet the obligation of the Tribunal to determine whether an applicant qualifies for the grant of a Protection Visa. 39 The task of the Tribunal is to determine whether there is a real risk that an applicant may suffer persecution, as defined in the Convention, if returned to the country of nationality. As discussed by J.C. Hathaway in the passage from his text referred to below, in some cases, proper performance of that task may not be effected if an application for a Protection Visa is refused solely on the basis that the applicant did not appear to be a credible witness. It did not appear to be in issue in the instant case that if the applicant had provided some support to the LTTE by receiving and distributing pamphlets on its behalf, and Sri Lankan authorities had knowledge of that activity or believed that she had so acted, there would be a real risk that the applicant would suffer persecution if returned to Sri Lanka. Therefore, a determination that the applicant was not entitled to the grant of a Protection Visa under the Act could be made only if the Tribunal were satisfied that the Sri Lankan authorities did not, and would not upon the return of the applicant to Sri Lanka, impute to the applicant a political opinion consonant with the aims of the LTTE and persecute her for that reason. Any apparent lack of candour by the applicant would have to be assessed with all other relevant circumstances to determine whether a real risk of persecution existed. The Tribunal appears to have overreached that obligation by treating its doubts or misgivings about aspects of the applicant's evidence as grounds for finding that the applicant had presented a fraudulent application that required no further examination. 40 In the absence of objective material which shows a claim to be fraudulent, and in this case that the applicant and her husband and son were participants in such a fraud, a Tribunal must exercise great caution before drawing inferences from perceived inconsistencies in the evidence of an applicant where those inferences are relied upon to discount the applicant's credibility and, for that reason, to refuse the application for a Protection Visa. 41 The following comments, although directed to the operation of the system for determination of refugee status in Canada, have relevance to the method of such determination used under the Act. "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 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. …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 may, 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." Given the objective focus of the Convention definition, the purpose of eliciting evidence from the claimant herself is not to ascertain whether she harbours a subjective fear of return. Rather, it is to establish how circumstances in the homeland impact on her own security, and why she feels compelled to seek protection abroad." J C Hathaway The Law of Refugee Status (Butterworths, Toronto, 1991) at 84-86 (footnotes omitted). 42 It is unnecessary to consider the second ground for review relied upon by the applicant, namely, whether under s 476(1)(g) of the Act there was no evidence or other material to justify the making of the decision. 43 It is not obvious that an order for review would lack utility in that if the Tribunal were required to reconsider the material presented in support of the application the Tribunal would have to determine that the application be refused. Therefore, the decision of the Tribunal will be set aside and the matter remitted to the Tribunal for determination according to law. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Solicitor for the Applicant: Legal Aid Commission of Western Australia

Solicitor for the Respondent: Australian Government Solicitor