M51 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

The applicant's second point, "monitoring" in the Seychelles 29 Having held that the applicant's first ground of review establishes jurisdictional error, it is strictly unnecessary to deal with the second ground in order to dispose of this appeal. However, out of deference to the careful arguments addressed to it, and in case this matter goes further, I shall examine the second ground. 30 In Mr Krohn's submission, the Tribunal reasoned from its finding as to informers having reported on the applicant in the Seychelles before 1997 to cast doubt upon his alleged detention in 1997. Mr Krohn also submitted that the Tribunal's approach had precluded it from properly dealing with the issue of "monitoring" after 1997. His submission was the Tribunal had misapprehended the claim advanced by the applicant and had addressed something different, in that it had failed to appreciate a distinction made in the applicant's written evidence before the Tribunal of "reporting" upon him by Sinhalese informers in the Seychelles up to 1997 and rather more aggressive and overt "monitoring" of him, presumably by paid agents, from 1998. In this sense, it had dealt with all such monitoring or reporting as if it had occurred before to 1997 and would have been relevant to any detention of the applicant in Sri Lanka in 1997 and the re-issue of his passport in that year. 31 Even presuming this to be a correct reading of the applicant's evidence, which is far from precise in ascribing dates to events, I infer that the Tribunal was entirely unconvinced by the whole of the applicant's evidence on this point irrespective of whether it was directed to "monitoring" before or after 1997. The Tribunal noted that the applicant's evidence was of his belief as to what had occurred, rather than what actually had occurred; and it rejected his wife's evidence of aggressive monitoring in the Seychelles as "constructed simply to support the claims for protection". It is true that the Tribunal did treat the "monitoring" claim as going to credit, and, to some extent, that influenced its evaluation of the 1997 evidence of the applicant's detention. However, it is not an available inference that the Tribunal disbelieved in its entirety the applicant's claim as to detention in 1997. As quoted above at [13] the Tribunal said; 'This brings into doubt his claim that an incident in which he was taken into custody and held for a day was a sign that he was unsafe in his home country. The Tribunal notes the country information which indicates that Tamils can be held by the authorities until their identities are checked. It is plausible that this happened to the Applicant, particularly as his passport and national identity card would indicate that he was born in Jaffna.' I think that the correct inference is that the Tribunal's doubt was not that the detention had occurred, but that it had occurred in the circumstances, or had the character, which the applicant had claimed. That is, it considered that, if the applicant had been detained, that had occurred solely for the legally permitted and non-persecutory purpose of establishing his identity. It appears to me that the Tribunal's conclusion on the character of the applicant's detention had far more to do with its conclusion that the applicant had not attracted the adverse attention of the authorities because he never possessed a sufficient "profile" to do so. Any error of law committed on the way to that conclusion, occurred, as already indicated, when the Tribunal failed to make findings as to the fate of the applicant's two allegedly murdered colleagues. 32 In the absence of any claim that there was a S157 type of breach of procedural fairness, it must be shown that this finding by the Tribunal permits the imputation to it of an error of law of the type explained in Yusuf, and which I have found is available in respect of the applicant's evidence regarding his allegedly murdered colleagues. I do not see that such an inference arises in relation to the second point. At best, the applicant complains, as Mr Horan put it, of a simple error of fact. The Tribunal expressed a clear view of the evidence on this issue, which it is not for this Court to disturb. It might have been arguable, if Singh were still good law, that the issue of "monitoring" after 1998 in the Seychelles was an "objectively relevant matter" on which the Tribunal was obliged to make clear findings. However, it is not apparent to me that, in this regard, the Tribunal has asked itself the wrong question in a Yusuf sense. 33 For the reasons I have endeavoured to explain above, the Tribunal's decision should be set aside and the matter remitted to it to be determined in accordance with law. The respondent must pay the applicants' costs of the application. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.