NALF of 2002 v Minister for Immigration & Multicultural

"Accordingly, I do not accept that the applicant was ever involved in the transfer of money to Tamils in Jaffna by Fr Jebanesan."

7 The Tribunal went on to accept, however, that he had been detained by the authorities overnight in April 1996, but it said it was unable to determine the reason for his detention (par 87). It then said:

"… I am satisfied it [ie, the detention in April 1996] was not connected in any way with Fr Jebanesan. It may have been due to some involvement of the applicant in the money transfer claim which he has made, although the bank account details which he provided are insufficient to settle this issue because there are none from the period when this detention occurred. I note from the independent information that the LTTE detonated a bomb at the Central Bank in Colombo in January 1996, which triggered widespread searches and random security roundups and cordon-and-search operations for a considerable period of time thereafter. I am unable, on the state of the information before me, to determine the reason for the applicant's overnight detention in April 1996."

"However, I am satisfied that the applicant was of no further interest to the Sri Lankan authorities once he was released from this brief detention."

9 The Tribunal then gave five reasons for that conclusion:

"First, he was able to renew his passport in the same month as his release. Second, he was able to leave Sri Lanka for Denmark and does not claim to have had any difficulties departing. Third, he made no attempt to seek protection in Denmark, and fourth he returned voluntarily from Denmark, both because, as he stated in the first DIMA interview and at the hearing before me, the situation had 'relaxed' after his release from detention. Fifth, he stated in his statutory declaration that on his return to Sri Lanka, when he was promoted to the Colombo office of his employer, he had no problems with the authorities (until the claimed January 1997 incident, dealt with below), and he made no claims of harassment either during the interviews with the delegate or at the hearing before me."

10 As to the third of the three major issues, the departure from Sri Lanka, the Tribunal set out its views on this issue and its findings in par 104:

"For the reasons which I have given above in relation to the applicant's capacity to leave Sri Lanka on a passport in his own name, in combination with my finding that he was of no interest to the Sri Lankan authorities after his release in April 1996, I find that the applicant was of no adverse interest to the authorities at the time of his departure from Sri Lanka for Australia by reason of his departure from Sri Lanka. I do not accept that without the bribe paid by the applicant at the airport (to 'get through' and to have his bags checked through without delay) he would have been prevented, for a Convention reason, from departing Sri Lanka."

11 No complaint was made at first instance or here about how the Tribunal dealt with those two issues. The points taken before the learned primary judge and on appeal arise out of what the Tribunal had to say in dealing with the second of these three major issues, viz, the arrest in 1997. The Tribunal summarised its reasons for coming to this view at par 90 of its reasons:

"I do not accept the applicant's claim to have been arrested and detained for 2 and a half days in March 1997. I give my reasons for that finding below, but in summary I do not accept the applicant claim because: First, the applicant has provided sharply conflicting accounts, neither of which I accept, of the reason for this claimed detention; Second, the applicant's wife was adamant at the first DIMA interview that there was only ever one overnight detention, in April 1996; Third, the most recent explanation for this alleged detention was not raised until after the applicant's protection visa application had been rejected by the delegate and I do not accept the applicant's or his wife's explanations for not having raised this claim earlier; Fourth, the letters from Fr Sritharan mention only one episode of overnight detention, which I have accepted for the reasons given above to relate to the April 1996 detention; Fifth, the applicant experienced no difficulty in departing Sri Lanka legally on documents in his own name some 4 months after the alleged detention; Sixth, the applicant delayed his departure from Sri Lanka for 4 months after his alleged release and 3 months after he obtained his Australian visa and I do not accept, for the reasons given below, that the applicant's explanation for this delay is consistent with a genuine fear of persecution."

12 It is on the second of these reasons, "the applicant's wife was adamant at the first DIMA interview that there was only ever one overnight detention, in April 1996", that the appellants focused their case before the learned primary judge and in this Court, though they do submit the third and fifth reasons given in par 90 of the Tribunal's statement for rejecting this particular arrest claim were coloured by the view the Tribunal formed about the wife's evidence with respect to her husband's history of detention. 13 In this section of the Tribunal's decision (pars 90 to 103), the Tribunal explained at some length why it reached each of the six conclusions summarised in par 90. It dealt with the second one, the one of critical importance to this appeal and to which I have already referred, at par 92 saying:

"Second: I have listened to the tapes of the DIMA interviews. The delegate there gave the applicant's wife a number of opportunities to make all the claims she wanted to raise, and on a number of occasions specifically asked the applicant's wife whether the detention in April 1996 was the only time her husband had been detained overnight. After the protection visa application was refused, the applicant's wife then related the claim about harbouring LTTE members and, in order to explain why she had not previously raised this claim she failed to mention, as the applicant did, that her brothers in Australia had advised against mentioning the LTTE incident, merely saying that she and the applicant had failed to mention the matter through lack of familiarity with the process or because the delegate had not given her an opportunity."

14 The appellants have made no attempt to prove either in the proceedings at first instance or in this Court that the Tribunal was in error in thinking that the wife did say, and say repeatedly, at her DIMA interviews that the husband was only arrested once, ie, in April 1996. The appellants confined their case to putting into evidence before the learned primary judge only a short extract from the transcript of the wife's evidence at one of her interviews. In this extract she clearly at one point in the interview did say that her husband was arrested for a second time, ie, in March 1997. 15 At best for the appellants, it may be that the Tribunal failed to appreciate what she here clearly enough said in this extract. It is not clear that this extract is in fact the last part of her interview as the appellants here submit. But even if it was, it is not open to this Court to assess whether or not that would strengthen the appellants' appeal point in the absence of the entirety of the transcript of the interview. 16 The Tribunal's conclusion was that the appellant's wife was adamant at the first DIMA interview that there was only ever one overnight detention in April 1996. It can safely be inferred, in view of the way the appellants have conducted their case, that the wife did make statements at her DIMA interview well capable of entitling the Tribunal to make this particular finding. That she did, inconsistently with this, say on one occasion that there was a second arrest in March 1997 does not, in these circumstances, necessarily show that the Tribunal reached its decision in reliance on a fact, ie, the absence of an assertion by the wife of a second arrest, which fact did not exist. The position appears instead to be that the Tribunal reached its conclusion by taking into account what the wife said about there being only one arrest in preference to the inconsistent evidence that she also gave to the interviewing officer about a second arrest in March 1997. The true position may, in fact, be that the Tribunal did not overlook the wife's evidence about a second arrest in March 1997 and did nothing more than fail to explain with complete clarity why it chose to act on the other inconsistent evidence of the wife to the effect that there was only one arrest and that was in April 1996. The appellants have failed to make out the factual basis for the first ground of their challenge to the decision of the learned primary judge. 17 It follows that the appellants have failed to show that the learned primary judge was in error in refusing to grant review of the Tribunal's decision on the ground that there was no evidence that the wife had said on interview that her husband was never arrested after April 1996, even if an established absence of evidence on that particular issue could have been sufficient to show that the Tribunal's decision was flawed with error within s 476(1)(g) the Migration Act. 18 It is to that question, which is the subject of the appellants second attack on the decision below, that I now turn. The scope of the ground of review provided for by s 476(1)(g) was the subject of recent consideration by the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 76 ALJR 1048; [2002] HCA 32. Their Honours expressed differing views on the proper construction of this provision. Gleeson CJ held that it was not enough to find that s 476(4)(a) or (b) was satisfied. The Court must still go on, so his Honour said, and determine whether it can nevertheless be said that there was in terms of s 476(1)(g) no evidence of other material to justify the making of a decision. See pars [33], [34] and [41] of his Honour's reasons. 19 Gaudron and McHugh JJ regarded the words of s 476(1)(g) "as having introduced a new and discrete ground of review, with its precise content identified in s 476(4) of the Act": see par [53] of their Honours' reasons. Kirby J, ultimately dissenting, expressed a similar view at par [111]. Callinan J did not, in terms, confine the scope of s 476(1)(g) as did Gaudron, McHugh and Kirby JJ, though he did not, in terms, agree either with Gleeson CJ's construction of the provision. See pars [151] and [152]. 20 However, the majority, Gleeson CJ and Gaudron, McHugh and Callinan JJ, all held that, though the Refugee Review Tribunal, in reaching a view on the appellant's credibility adverse to him, took into account two of eight facts which two facts did not exist, that did not lead to the conclusion that the no evidence ground in s 476(1)(g) was established. Gleeson CJ said, at par [42]:

"The Act required the Tribunal to decide that visas should be refused if it was not satisfied that the first respondent satisfied the criteria for refugee status. The Tribunal's lack of satisfaction related to whether he could return to Sri Lanka without being persecuted. There was nothing in the evidence or other material that compelled a conclusion that the first respondent would be persecuted if he returned to Sri Lanka. … But this Tribunal was not satisfied that an elderly, respected, medical practitioner, who had many years of government service, and who was in receipt of a government pension, would be persecuted if he returned to Sri Lanka. It gave a number of reasons for that, which included, but were not limited to, reasons for not accepting him as a credible witness. Most of those reasons were plausible, and have not been shown to involve error. I find it impossible to conclude that there was no evidence or other material to justify the decision which was required by law in the event of such lack of satisfaction."

21 Gaudron and McHugh JJ said at pars [70] to [71]:

"It will be apparent from the above account of Dr Rajamanikkam's claims and the Tribunal's decision that, in reaching its decision, the Tribunal took into account two facts that did not exist, namely, the supposed denial by Dr Rajamanikkam that Point Pedro had been taken over by government forces and his supposed claim to have been new to Trincomalee in 1996. However, it does not follow that the Tribunal's decision was based on those particular facts.

Given the 'range of factors' to which the Tribunal pointed as giving rise to doubts as to Dr Rajamanikkam's credibility, it is not possible to say that, had it not found that Dr Rajamanikkam denied that Point Pedro had been taken over by government forces and/or that he claimed to be new to Trincomalee in 1996, it would not have found that he was not entitled to a protection visa. That being so, it cannot be said that its decision was based on those particular facts which did not exist."

"Having regard to the matters to which I have referred therefore this appeal must be allowed. The Tribunal held that the first respondent was not a credible witness. There was evidence to support that holding with respect to no fewer than six matters. There were clearly evidence and material to support the Tribunal's decision that the first respondent was not entitled to the status of a refugee for a Convention reason. The Tribunal did not reach its decision on the basis of the existence of a particular fact which did not in truth exist. … There was no finding of such a kind here. And, in any event errors with respect to two matters out of eight going to the first respondent's credibility do not, singly or together, answer the description of a 'decision based ... on the existence of a particular fact [which] did not exist.'"

23 Kirby J, in dissent, took a more expansive view of when it could be said that the decision in question was based on the existence of a particular fact that did not exist: see par [112]. 24 All the majority judges, however, emphasised the need to focus on the decision, there the decision to refuse Dr Rajamanikkam the protection visa he sought. Each held that, although there was no evidence to justify two of the eight findings of fact the Tribunal made, on the basis of which it rejected Dr Rajamanikkam as a credible informant, the decision to refuse the protection visa could not be said to be based on no evidence or on particular facts which did not exist, given the other evidence in that case. 25 I have referred in the course of these reasons to the quite detailed reasons the Tribunal gave in relation to the three major issues upon which it based its decision to refuse the appellants the protection visas they sought. The Tribunal took into account a range of matters and made numerous findings which led it to its decision. Even if the Tribunal wrongly found that the wife said that the husband was only detained once, in April 1996, that particular finding, in the context of the range of other unchallenged findings on many unrelated matters all rationally justifying the decision to refuse the visas, cannot be said to be so determinative of that decision that the latter was "based" upon that finding within s 476(1)(g) and s 476(4)(b). Nor is it possible, for the reasons already given, to say that, even if the finding about what the wife had to say was wrong, there was no evidence or other material to justify the decision to refuse the visas within s 476(1)(g). The approach of the majority in Rajamanikkam necessarily, in my opinion, leads to this conclusion. 26 For these reasons, the appeal must be dismissed. 27 NORTH J: I agree with the conclusion of the presiding judge and the reasons which he gives for those conclusions. 28 DOWSETT J:I also agree and wish only to point out that it seems that it has not at any stage in this case been necessary to consider the extent to which bona fide government attempts to prevent insurgency activity and to punish those who aid and abet it may constitute persecution for a Convention reason. 29 DRUMMOND J: The order of the Court will be that the appeal is dismissed. The Court will further order that the appellants pay the respondent's costs of and incidental to the appeal. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice North and the Honourable Justice Dowsett.