Pollocks v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The first applicant, Michael Pollocks, his wife the second applicant, Catherine Pollocks, and their three children, the third to fifth applicants, seek a review of the decision of the Refugee Review Tribunal refusing to set aside a decision of a delegate of the Minister of Immigration and Multicultural Affairs that none of the applicants is entitled to a protection visa under s 36 of the Migration Act 1958 (Cth). 2 The criterion for the grant of a protection visa is, in substance, that the Minister is satisfied that the applicant is a "refugee" as defined in the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees. There a refugee is a person who "owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". 3 Mr Pollocks claims to be a refugee because of imputed political opinion. He does not suggest that he fits within any other category of the definition. Although the remaining applicants have made applications for a protection visa on the ground that they also are refugees, in truth they did not submit evidence to support an independent claim for that status. Their respective claims are dependent on the successful outcome of Mr Pollocks' application. If he is ultimately granted a protection visa, each of the remaining applicants, as members of his family unit, will also be entitled to a visa: see Migration Regulations (Cth), Sch 1, Item 1126(3)(c). 4 The account that Mr Pollocks gave to support his claim for refugee status is as follows. Mr Pollocks was an assistant manager in a travel agency in Colombo, Sri Lanka, where he had been employed since 1980. A friend, Mr Francis, also worked at the agency. Mr Francis is an indigenous Tamil. On 24 July 1996 two bombs exploded on a crowded train at Dehiwela railway station in Colombo. More than 80 people were killed and over 400 injured. It was suspected that the bombing was carried out by the Liberation Tigers of Tamil Eelan (usually abbreviated as Tigers or LTTE) who are seeking to establish an independent state in the northern and eastern provinces of Sri Lanka. Within an hour or so of the explosion, Mr Francis telephoned Mr Pollocks. Mr Francis said that he and his family were in fear of attack from the Sinhalese population in the area where they lived. He asked whether Mr Pollocks would provide them refuge. Mr Pollocks, who is not a Tamil, agreed and that evening Mr Francis and his family moved in with the Pollocks. They stayed there for three days. 5 Mr Pollocks' neighbours discovered that there was a Tamil family living with him. He received abusive phone calls and threatening letters. Stones were thrown at Mr Pollocks' house causing minor damage. Although Mr Pollocks complained to the local police, they took no action. About a week after the explosion, three unknown assailants entered Mr Pollocks' home around midnight. They accused Mr Pollocks of being a Tigers sympathiser. They searched his home looking for Mr Francis and his family, but by that time the family had departed. Mr Pollocks was assaulted during the search, and threats were made to kill him and his wife. Mr Pollocks also complained about this incident to the local police which took no action to protect Mr Pollocks and his family. To the contrary, on one occasion security forces interrogated Mr Pollocks about "his Tamil colleague". 6 These events forced Mr Pollocks and his family to live with Mr Pollocks' brother for two months. When they returned to their home it had been damaged by intruders and dead rats had been left behind. Shortly after his return Mr Pollocks was taken to the local police station where he was detained for approximately four hours and interrogated about Mr Francis. A lawyer secured his release but only after some money had been paid to the police. 7 Throughout the whole of this period Mr Pollocks was unable to remain at work as was Mr Francis. Mr Pollocks resigned in December 1996 and, with his family, travelled to Australia on visitors visas they had obtained on 1 March 1996. Within a month of their arrival, Mr Pollocks and his family lodged their applications for protection visas. 8 Mr Pollocks was only entitled to a protection visa if the Tribunal was satisfied on the evidence and other material before it that the claims made by Mr Pollocks were true. This is not to say that Mr Pollocks carried any burden of proving the truth of that which he was asserting. He had no obligation to prove or disprove any fact, in the sense that a party to curial proceedings carries a burden of proof. The Tribunal is not required to determine the existence of an asserted fact according to any standard of proof, such as that employed in civil cases. All that the Tribunal is required to do is to be reasonably satisfied of the truth of any asserted fact having regard to all the material that is available to it: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. There is, so it seems to me, a real difficulty with this approach. In judicial proceedings no "fact" is ever proved to be more than probable to some degree: in criminal proceedings it is proof beyond reasonable doubt; in civil proceedings it is proof on the preponderance of probabilities. If in administrative proceedings the degree of proof is not stated even a rational administrative decision-maker, that is one who is not persuaded by invalid proof, may not fully appreciate his or her obligation. That is, to require an asserted fact to be proved to be probable to some degree, without requiring it to be proved to be probable to a stipulated degree, may impose a near impossible obligation. It is for this reason that in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 400 I said that, in general, administrative decision-makers should follow the civil standard. 9 In the present case, the only material before the Tribunal upon which it could decide whether Mr Pollocks had given refuge to his friend, was Mr Pollocks' own evidence. Thus it was necessary for the Tribunal to form an opinion about the credibility of that evidence. In this connection, the principal finding of the Tribunal was that it was "implausible" that Mr Pollocks gave refuge to Mr Francis and his family. The Tribunal gave four reasons which led to that conclusion, each reason in turn being a conclusion which has other premises as its foundation. First, the Tribunal said that it was "implausible" that within an hour after the explosion Mr Francis would have been aware of the extent of the damage that was caused or the enormity of the occurrence for him to fear harm. Second, the Tribunal said that it was "implausible" that even accepting that Mr Francis was concerned about his safety and that of his family, he would have sought refuge in Mr Pollocks' home which was approximately the same distance from the Dehiwela railway station as his own. The Tribunal reasoned that if Mr Francis had been worried about his own safety he would have gone further afield. Third, the Tribunal said that because both Mr Pollocks and Mr Francis continued to attend work at the travel agency, the inference was that there was no real sense of panic or fear on the part of Mr Francis especially given that in the days following the bombing there were intense operations by the security forces to find the culprits. Fourth, the Tribunal found it to be "implausible" that Mr Francis, who had lived in Colombo for a number of years when there had been a number of incidents similar to the Dehiwela railway station bombing, only sought refuge on this particular occasion. 10 The decision of the Tribunal is said to be flawed in four respects. The first relates to an alleged deficiency in the Tribunal's reasons for decision. Section 430(1) of the Migration Act provides: "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 11 Mr Pollocks alleges that the reasons do not satisfy these requirements because they do not refer to the evidence or other material on which the Tribunal based its findings. The Tribunal gave reasons for its finding that Mr Pollocks did not provide assistance to Mr Francis and his family and that therefore Mr Pollocks could not be at any risk for harbouring Tamils. I will refer to this finding by the Tribunal as the ultimate conclusion. However, it is said that no reasons were given for the four premises which were the foundation for the ultimate conclusion. The argument is that it is in respect of those premises, that is to say, the four reasons for the ultimate conclusion, the Tribunal was required to set out the evidence and other material upon which they were based. 12 For the purposes of this submission I will act on the view of the majority in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 that a failure to comply with s 430(1) is a failure to observe a procedure required by the Migration Act to be observed in connection with the making of a decision and therefore constitutes a ground of review: see s 476(1)(a). I note, however, that the Minister contends that Singh is wrongly decided and that he reserves his position for the purposes of an appeal. 13 Proof can be described as a process by which one proposition is asserted as true or probable (the asserted fact) as a result of the assertion of one or more other propositions as true or probable (the underlying proposition or propositions). To establish the existence of an asserted fact, or of an underlying proposition, it is necessary to point to evidence or other material from which the trier of fact can find, in terms of the relevant degree of probability, that the asserted fact, or an underlying proposition, is true. When the asserted fact or an underlying proposition is to be established from testimonial evidence, the trier of fact must decide whether he is persuaded by that evidence. Testimonial evidence may be rejected for a variety of reasons, not all of which depend upon credibility. Here we are concerned with testimonial evidence that is found not to be credible. The reasons why testimonial evidence is not credible may range from a failure to be satisfied that the evidence is reliable to outright disbelief of the witness. Where a party carries an onus, the trier of fact may not be persuaded that the evidence is sufficiently persuasive to discharge the onus of establishing the asserted fact. That does not amount to a finding that the witness is not telling the truth. It means that the trier of fact is not satisfied that the witness is necessarily telling the truth. Different circumstances will produce that result. In each case the rejection of evidence will be the result of the ordinary process of reasoning by the trier of fact. A trier of fact may reason that the demeanour of a witness leads to the conclusion that his evidence should be rejected. A trier of fact may reason that the evidence should be rejected because it is inconsistent with other more compelling evidence: that is, that contradictory evidence is true. A trier of fact may reason that the evidence should be rejected because that which is asserted is, according to the mind of the trier of fact, unlikely or improbable. 14 When a statutory tribunal is required to give reasons for its decision, being a decision which is arrived at because a witness is not believed, those reasons will be more or less detailed, dependent upon the factors which have caused the tribunal to reject the evidence. In a simple case, where a witness is disbelieved because of the manner in which he or she gave evidence, the tribunal need say no more than: "I do not believe X" or "Y did not appear to tell the truth". When a witness is not believed because a contradictory fact is more probable than the asserted fact, the tribunal must explain that position. It should refer to the contradictory fact and in some cases it may be required to explain why it prefers that fact. When the asserted fact is not accepted because the underlying proposition is not proven, the tribunal satisfies its obligation to give reasons for not accepting the asserted fact by identifying the underlying proposition it does not accept and stating why it has not accepted that proposition. If the reason is that the proposition is incredible then a statement to that effect is usually sufficient if that makes clear the tribunal's reasoning. Then it will not be necessary for the tribunal to give further reasons why the underlying proposition, which will often be based upon one or more other propositions, has not been accepted. If that were the obligation, it is difficult to see where it would end. 15 Yet this is what Mr Pollocks asks of the Tribunal. He complains that the Tribunal was required to set out the evidence and other material upon which it found that the underlying propositions were "implausible". I have attempted to explain why the Tribunal is not under any such obligation. Reference should also be made to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, where (at 417-418) McHugh J said: "Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.…The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged." 16 The second ground of complaint is that the Tribunal failed to give proper or realistic consideration to the substantive issues raised for its consideration, in particular that it did not give proper and realistic consideration to the factors which led to its conclusion that it was implausible that Mr Pollocks gave refuge to Mr Francis and his family. 17 In Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368Merkel J said that it is well established that the Tribunal is under a duty to consider an application on its merits and in so doing the Tribunal must have regard to all of the material and evidence before it and make findings on all the material questions of fact raised by that material and evidence. He also said that in arriving at its decision the Tribunal is under a duty to determine the material questions of fact before it for its determination after giving "proper, genuine and realistic consideration upon the merits" to those questions: Anthonypillai at [16] and [17]. Merkel J said (at [28]) that if the Tribunal failed to satisfy those obligations, its decision was reviewable under s 176(1)(a), (b), (c) or (e). It is not necessary to investigate which of these grounds of review is the appropriate one. What is important to remember, however, is that this ground of review is not to be regarded as a substitute for a complaint that the Tribunal failed to take into account relevant considerations, took into account irrelevant considerations, arrived at a decision that was unreasonable in all the circumstances or approached the resolution of the issues before it in an illogical manner. Those grounds of review are not available under s 476. To show that the Tribunal had not given "proper, genuine and realistic consideration" to the case before it amounts to saying that the Tribunal did not really appreciate or understand the issues that it was required to resolve in order to arrive at a lawful decision, or that it did not consider those issues in any real sense. 18 There are three relevant findings which are said to demonstrate that the Tribunal failed to satisfy its objectives. The first concerns the finding that it was implausible that Mr Francis was fearful of harm such a short time after the explosion at the railway station. It may be that this finding is a finding which is open to challenge as a finding of fact. I say that because it is not immediately apparent why it is unlikely that Mr Francis was in fear for his safety soon after the explosion. But merely because the conclusion may not be justified does not mean that the Tribunal failed to give genuine consideration to the issue. Indeed I do not believe that there was such a failure. 19 The same is to be said for the finding that it is "implausible" that Mr Francis would seek refuge in Mr Pollocks' home. As a reference to the transcript of the proceeding shows, the Tribunal was making the point that Mr Pollocks' home was approximately the same distance from the Dehiwela railway station as was Mr Francis' residence. Hence, so the Tribunal reasoned, it was unlikely that Mr Francis would seek refuge in the general vicinity of the explosion. It is possible to point to factors that might contradict the Tribunal's conclusion. For example by living with Mr Pollocks, Mr Francis had the protection of an upstanding member of the community. Further, Mr Francis only intended to stay with Mr Pollocks as an interim measure. He remained there for three days. If Mr Francis was in imminent danger, he could secure some protection with Mr Pollocks until more secure arrangements could be made. At worst the Tribunal's finding might be unreasonable, but that is not sufficient to conclude that the Tribunal did not give genuine consideration to the matter. 20 Less criticism can be made of the finding that it was "implausible" that Mr Francis had only on one occasion sought refuge for fear of reprisal when there were other incidents similar to the Dehiwela bombing that should have resulted in the same fear. The evidence before the Tribunal was that Mr Pollocks had been a friend of Mr Francis for some years. Yet on no occasion before the Dehiwela bombing had Mr Francis sought any help from Mr Pollocks. One reason for this might be that none of the earlier incidents had caused Mr Francis to be in fear because he was a Tamil. On the other hand, so far as the evidence before the Tribunal was concerned, if the bombing at Dehiwela had caused Mr Francis to fear for his safety, it was reasonable to suppose that he may have felt the same way on other occasions, and that he would have mentioned those fears to Mr Pollocks. This is not an unreasonable position to take, although other views are open. 21 The third ground of complaint is that the Tribunal should have obtained translations of the abusive letters, written in Sinhalese, which had been tendered by Mr Pollocks, but failed to do so. Section 427(1) of the Migration Act empowers the Tribunal to undertake inquiries that it thinks necessary with respect to a proceeding before it. A number of cases have held that the Tribunal has not only the power but sometimes the duty to undertake inquiries in special circumstances. Following the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 it may be that a failure to exercise a power to inquire will not amount to a breach of any duty by the Tribunal: see Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470; Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277. 22 In any event, even if it is still the law that the Tribunal can fall into reviewable error by failing to make an inquiry, it could hardly be said that it fell into that error in this case. Mr Pollocks tendered the letters which he said contained abusive material that resulted from him having given comfort to Mr Francis. He briefly indicated what was contained in the letters. In my view it is most unlikely that the Tribunal would have been assisted by having the text of those letters translated. In any event, if Mr Pollocks was of opinion that a translation would assist the Tribunal he could have provided one. 23 The final ground of complaint is that the Tribunal erred by failing to exercise its power under s 427 or otherwise in not taking evidence from Mr Pollocks' wife and children. Here again, the complaint does not raise a reviewable error, but if it did, the allegation would have to be considered against the following background. The application for a protection visa was first considered by a delegate of the Minister. The delegate was not satisfied that Mr Pollocks was a refugee. In written reasons which were made available to Mr Pollocks, the delegate said: "I do not accept that Mr Francis and his family lived with the applicant at his home after the Dehiwela train bombing in July 1996. I also do not accept that the applicant had the problems he claimed to have had with the security forces and with his Sinhalese neighbours." Accordingly, although the proceeding before the Tribunal was a hearing de novo, Mr Pollocks knew full well the area where he might face difficulty. Moreover Mr Pollocks was being advised by a lawyer at the time. It was the lawyer who assisted Mr Pollocks with the completion of the application to the Tribunal for the review of the decision of the delegate. Thus I infer that Mr Pollocks received advice on how he should conduct the review. In those circumstances, the Tribunal can hardly be criticised for failing to do what Mr Pollocks could have, but did not, do, namely call his wife and children to give evidence to support his claim. 24 The application will be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.