Pollocks v Minister for Immigration & Multicultural Affairs

Tribunal's decision 7 In its reasons for decision, under the heading "Findings and Reasons", the Tribunal considered Mr Pollocks' account of his earlier experience in Sri Lanka. The Tribunal doubted several aspects of the version of events put forward by Mr Pollocks. It stated, "the Tribunal finds it implausible and does not accept that the Applicant gave refuge to Mr Francis and his family". There were several reasons given by the Tribunal for reaching that conclusion. 8 The Tribunal considered it implausible that just one hour after the first bomb had exploded, Mr Francis already had a sufficient understanding of the gravity of the incident to fear that reprisals might follow. The Tribunal also considered it implausible that, even if Mr Francis was afraid for himself and his family, he would seek refuge in a house no further from the bombsite than his own and that while there, he would continue to attend work with his colleague, Mr Pollocks. Such behaviour was regarded by the Tribunal as inconsistent with the type of fear which might lead someone to leave his or her home just hours after the bomb blast. The Tribunal indicated that had Mr Francis been genuinely afraid he would have fled with his family further afield and would not have continued his daily routine as the search for the culprits went on around him. The Tribunal also found it implausible that although Mr Francis had lived through a number of incidents similar to the Dehiwela bombing, he was never reported to have sought refuge with friends for fear of reprisals on other occasions. Similarly there were no reports that Mr Francis was ever detained by police or targeted because he was a Tamil living in Colombo. The Tribunal found that this was consistent with the country information before it which indicated that in Colombo only Tamils of a certain profile were subject to more stringent security measures, in particular, young Tamils from Jaffna without proof of identity and without a reason for being in the capital. 9 The Tribunal found that even if it were to accept that Mr Francis and his family spent three days in Mr Pollocks' house, it could not accept that the consequences were as claimed. The Tribunal referred to independent country information from a variety of sources which it viewed as inconsistent with Mr Pollocks' claims of ongoing harassment by his Sinhalese neighbours. The Tribunal found that these reports presented a picture of relatively peaceful relations between Tamils and Sinhalese in the capital, even in the aftermath of the Dehiwela bombing. Having regard to that information, the Tribunal did not accept that housing Mr Francis and his family for such a short time could result in such persistent and sustained abuse and enmity from Mr Pollocks' Sinhalese neighbours. 10 As the Tribunal did not accept that Mr Pollocks housed Mr Francis, it also did not accept that he was visited by armed men in the middle of the night, that he reported the incident to police and was ignored or that he was detained by police for questioning. The Tribunal also noted that Mr Pollocks did not leave Sri Lanka until several months after his troubles were said to have begun, although he and his family were in possession of valid visas for travel to Australia throughout the period. The events discussed above were said to have occurred between the end of July and the first week of August and then onwards from sometime in October. Mr Pollocks and his family left the country on 19 December. The Tribunal considered that such behaviour was inconsistent with a person whose fear of harm was such that he needed to leave the country. 11 On the basis of those findings, the Tribunal concluded that there was no real chance that Mr Pollocks would be persecuted for a political opinion imputed to him should he be returned to Sri Lanka. The Tribunal affirmed the decision not to grant Mr Pollocks a protection visa.

Issues before the primary judge 12 The appellants filed an application for an order of review in this Court on 5 July 1999. For reasons which the parties could not explain (other than a delay arising from a dispute about the contents of the appeal book which took four months to resolve) and which are not apparent from the file, the application in this Court was not heard until over a year later, on 25 September 2000. In the application the appellants alleged that the decision of the Tribunal was affected by legal error in four respects. 13 The first error was the Tribunal's failure to comply with s 430(1) of the Migration Act 1958 (Cth) ("the Act") which relevantly 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." The appellants alleged the Tribunal's reasons did not satisfy the requirements of s 430(1) because they did not set out the evidence or other material on which the Tribunal based its findings. In particular, it was asserted that, although the Tribunal set out four reasons for finding that Mr Pollocks did not house Mr Francis and his family, no evidence or material was provided in support of the four reasons. 14 The second error was that the Tribunal failed to give proper or realistic consideration to the substantive issues raised by the material and evidence before it, and 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. 15 The third error was that the Tribunal breached s 427(1) of the Act when it did not obtain translations of the abusive letters, written in Sinhalese, which had been tendered by Mr Pollocks. It was submitted that s 427(1) not only empowers the Tribunal to undertake inquiries but in some circumstances mandates such inquiries. 16 The fourth error of law alleged by the appellants also related to s 427. It was claimed that the Tribunal erred by failing to use its powers under s 427 to take evidence from Mr Pollocks' wife and children.

Decision of the primary judge 17 In relation to the contention that the Tribunal's reasons for decision were insufficient to satisfy the provisions of s 430(1), the primary judge held that the Tribunal was not required to set out the evidence and other material upon which it found four underlying propositions (as characterised by his Honour) were implausible. His Honour held, ([2000] FCA 1514) at par 14: "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." 18 In relation to the second ground, the primary judge explained (at par 17) that, in his view, a failure to give proper, genuine and realistic consideration to a case amounts to a failure by the Tribunal to "really appreciate or understand the issues that it was required to resolve in order to arrive at a lawful decision", or a failure to "consider those issues in any real sense". His Honour found that, although the Tribunal's findings about the plausibility of certain aspects of Mr Pollocks' claim might variously be regarded as unjustified, unreasonable or only one of several views open, nonetheless that alone was not sufficient to support the conclusion that the Tribunal had failed to give genuine consideration to the matter. 19 In relation to the third and fourth grounds, the primary judge found that the facts of the appellants' case did not require him to express a concluded view as to whether a failure by the Tribunal to make an inquiry is a reviewable error. His Honour found that Mr Pollocks had already outlined for the Tribunal what was contained in the letters provided by him and that a translation was most unlikely to offer any further aid. Moreover, his Honour noted that it was open to Mr Pollocks to provide a translation of the letters if he believed it might assist the Tribunal. Likewise, the primary judge held that it was open to Mr Pollocks to call his wife and children to give evidence in support of his claim before the Tribunal. His Honour noted that the decision of the Minister's delegate should have put Mr Pollocks and his legal representatives on notice as to what aspects of his claim might be the subject of doubt or disbelief. Mr Pollocks, nonetheless, chose not to call the members of his family to give evidence in support of his story. It was held that no fault could be found with the Tribunal for failing to do what Mr Pollocks himself chose not to do, particularly in view of the fact that he had apparently received legal advice on how to conduct his review.

Issues on appeal 20 The appellants raised three issues in the appeal. The first is whether the primary judge erred in his consideration of whether the Tribunal had satisfied s 430(1). In particular it was contended that the primary judge erred in characterising certain of the Tribunal's findings as merely underlying propositions founding other findings and thus not, themselves, findings of the type comprehended by s 430(1)(c) in respect of which the Tribunal is required, by s 430(1)(d), to refer to supporting evidence or other material. The appellants relied on the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. 21 The appellants submitted that in this case the Tribunal made the following three findings of fact: "Firstly, it is implausible that barely an hour after the explosion of the first bomb the friend in question would be aware of the extent of the damage or the enormity of the occurrence for him to fear harm as a result. ... Secondly, it is implausible that even accepting that Mr Francis was in fact so worried about his safety and that of his family he would have sought refuge in the applicant's house which was approximately the same distance from Dehiwela, the place of the bomb blast, as his own. ... It is also implausible to the Tribunal that Mr Francis lived through a number of incidents of similar nature to the Dehiwela bombing in Colombo such as the Central Bank bombing of 31 January 1996 and only this time is he reported to have sought refuge for fear of reprisals against him." It was submitted that these findings were findings on a material question of fact, namely whether or not Mr Francis and his family stayed in Mr Pollocks' home after the Dehiwela bombing. That question was a material question of fact, it was submitted, because the Tribunal's finding that Mr Francis did not stay with Mr Pollocks was the only basis for rejecting Mr Pollocks' claim that his home was raided by anti-LTTE forces and that he was detained and interrogated by police. Counsel for the appellants submitted that, although the Tribunal offered reasons in the alternative for dismissing Mr Pollocks' claims of harassment by his neighbours, the only reason given for dismissing Mr Pollocks claims in relation to the police and anti-LTTE group was that it did not accept that Mr Pollocks had housed Mr Francis in the first place. It was submitted that finding was pivotal to the Tribunal's ultimate conclusion and accordingly the Tribunal was required to refer to evidence or material supporting it. 22 Counsel for the appellants also submitted that simply stating that certain crucial propositions were "implausible" was insufficient when it was not immediately apparent that those claims were inherently unlikely. It was conceded that had the Tribunal cited Mr Pollocks' lack of credibility as a witness as the basis for dismissing his claims then that would have sufficed to satisfy s 430. However, counsel for the appellants contended that a finding of implausibility is materially different from a finding that a witness lacks credibility because it implies that the content of what the witness has said is objectively improbable. 23 The second issue raised by the appellants was whether the primary judge erred in not finding that the Tribunal failed to discharge its obligation to "consider" or "review" the appellants' application. On that question counsel for the appellants made the following written submission: "Since the judgment of the Full Court in Anthonypillai v Minister for Immigration & Multicultural Affairs [2001] FCA 274, mentioned above, it is clear that failure to give 'proper, genuine and realistic consideration' is not a reviewable error within Part 8 of the Act. The Full Court in Anthonypillai, however, said that 'Nonetheless, it seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to 'review' the decision of the Minister. In other words, although we consider the use of the formula 'proper, genuine and realistic consideration' to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth 'considered' the application for a visa at all ... a failure of that type may well fall within the ambit of section 476(1)(e)'." 24 It was submitted that the Tribunal's obligation to "review" or "consider" all valid applications before it arises under s 65 of the Act and perhaps also s 54, which in conjunction with ss 412, 414 and 415 requires, by implication, the Tribunal to do what the Minister was required to do, namely, to have regard to all the information in the application. 25 Counsel for the appellants submitted that in this case Mr Pollocks' single, central claim was that he gave refuge to a Tamil man after the Dehiwela bombing. It was submitted that "to consider" properly this claim the Tribunal was required to go further than simply asserting that the claim was implausible on the basis that several underlying matters were regarded by the Tribunal as implausible. It was said that simply assuming and asserting implausibility in circumstances where, without further explanation, a proposition can not be regarded as inherently implausible, amounts to a failure "to view or contemplate attentively … examine … scrutinise … to fix the mind upon … to reflect upon" the claim, which was the definition of "consider" adopted by the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274. 26 The third issue raised by the appellants was that the primary judge erred in finding that the Tribunal was not obliged, in the circumstances of the case, to request or take evidence from the second, third and fourth appellants. It was acknowledged by counsel for the appellants that s 427 of the Act confers a power that is permissive and does not oblige the Tribunal to make inquiries or summon a person to give evidence. However, counsel for the appellants submitted that the Tribunal's obligation to "consider" and "review" applications before it, in this circumstance, necessitated the calling of Mr Pollocks' family to give evidence so that the Tribunal may be properly satisfied one way or the other as to the likelihood that Mr Pollocks gave refuge to Mr Francis as claimed. It was submitted that the primary judge erred in treating the review before the Tribunal as adversarial in nature rather than a more informal fact-finding exercise. Similarly it was submitted that given that hearings before the Tribunal are hearings de novo, the primary judge erred in finding that Mr Pollocks should have prepared his case before the Tribunal in response to the findings of the Minister's delegate. Counsel for the appellants submitted that the fact that the appellants were represented before the Tribunal was not material to the question of whether the Tribunal should have, at the very least, suggested that the members of Mr Pollocks' family be called to give evidence. It was argued that the stress of the proceedings might well be such, and in this case were such, that an applicant may be quite reluctant to call another, his wife for example, to give evidence even though advised by a legal representative to do so.

Consideration of the issues 27 Since the decision of the primary judge and the hearing of this appeal, the High Court has handed down judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 in which the Court considered the operation and effect of s 430 and the relationship between the various sub-sections in s 476. In Yusuf in the joint judgment of McHugh, Gummow and Hayne JJ their Honours said, at par 82: "'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive …. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law …." 28 In supplementary written submissions the appellants have sought to rely on observations of the members of the High Court to provide further support for submissions already made. 29 We deal with the last matter first, namely the alleged failure of the Tribunal to call members of the Pollocks' family to give evidence. The primary judge's consideration and conclusions concerning the contention that the Tribunal should have called them is correct. We do not repeat his reasons. The reasons of the members of the High Court in Yusuf do not suggest the approach of the primary judge or his conclusions are wrong. 30 As to the second matter, the primary judge's consideration of this issue predated the judgment of the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai. There is no ground of judicial review that the Tribunal failed to give proper, genuine and realistic consideration to the substantive matters before it. Accepting this, counsel for the appellants sought to amend the application to contend that the Tribunal failed to consider the application and that was apparent from the way the Tribunal dealt with the application and, in particular, its statement that certain things were implausible. However plainly, in our opinion, the Tribunal did consider the application. It addressed the issues raised by the appellants and their claims and expressed a view about them. Its consideration of Mr Pollocks' account of having harboured Mr Francis manifested an attempt to grapple with the question of whether the account should be accepted or not, and that remains so even if the reasoning adopted is not beyond criticism. Counsel for the appellants submitted in the supplementary written submissions that the purported failure of the Tribunal to deal with the factual issue of whether Mr Pollocks harboured Mr Francis involved a failure to take into account a relevant consideration. But in this case the Tribunal reached factual conclusions that the appellants challenge. It cannot be said to have "ignored" the matter so as to fall into "jurisdictional error" or error of law in the sense referred to in Yusuf. 31 This leads to a consideration of the first issue and whether the primary judge erred in his consideration of the contention that the reasons of the Tribunal did not satisfy s 430. 32 The primary judge's consideration of this issue involved a description of a conceptual framework concerning fact finding articulated at an abstract level and then applied to the facts. It also involved a characterization of the three statements of the Tribunal that certain things were implausible, as embodying propositions or premises to which the conceptual framework could then be applied. For our part, it is unnecessary to adopt the same method of analysis. 33 In Yusuf the Court decided that the requirement in s 430 to set out the findings on any material questions of fact did not require the Tribunal to make a finding on every question of fact which might be regarded by the Federal Court on judicial review of the Tribunal's decision as being material. The Chief Justice, at pars 8 and 9, pointed out that: "To treat a failure to make a finding on a question of fact as a failure to observe a procedure in connection with the making of a decision involves a strained interpretation of the statutory language, especially in a context which distinguishes between legal review … and full merits review … The major difficulty for the respondents, however, lies in the language of s 430. There is nothing in that language which imposes a requirement to make a finding on every question of fact which is regarded by the Federal Court … as being material. … Questions of fact which appear to have been regarded by the Tribunal as material are sometimes described as 'subjectively material', to distinguish them from questions of fact which are regarded as material by a court reviewing the Tribunal's decision. Facts of the latter kind are then described as 'objectively material'. And the level of generality, or particularity, at which facts are to be classified for the purpose of determining their materiality is a problem. The distinction between facts in issue, particulars, and evidence, which may be difficult even in adversarial litigation conducted with or without formal pleadings, is even more difficult when applied to proceedings before the Tribunal." (Emphasis added) In par 10 the Chief Justice speaking of s 430(1) continued: "… It is impossible to read the expression 'the findings' as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. … But all the Tribunal is obliged to set out is such findings as it has made." In their joint judgment McHugh, Gummow and Hayne JJ said at par 68: "… A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision‑maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons ithad for reaching that decision." At par 77 their Honours said: "… It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the recording of what was found and does not impose any duty to makefindings, means that an asserted failure to make findings is not a breach of s 430." 34 These observations caution against an interpretation of s 430 which imposes too stringent an obligation on the Tribunal particularly when considering what findings should be made on material questions of fact. 35 In the present case the Tribunal set out its actual findings of fact on those matters which it considered to be material. The selection of what are material facts and what is the evidence, or other material, which is relied on for making those findings is a matter for the Tribunal in its consideration of the circumstances surrounding the application. In terms, s 430(1)(c) only requires the Tribunal to "set out" the findings on any material questions of fact. It does not require the Tribunal to make or set out additional findings to those which it has actually made: see Yusuf par 68. Nor does it require any more than that the reasons should be "set out". It does not call for the exposure of any reasoning process for making those findings. Section 430(1)(d) in terms only requires that the Tribunal must "refer" to the evidence or other material on which the findings of fact were based. It must of course, disclose its reasons for the decision but this requirement does not extend to subsections (1)(c) or (1)(d). When the expression "findings of fact" is used in s 430(1)(d) it is clearly a reference to the finding on any questions of fact which it considers "material" to make in support of its reasons for decision within s 430(1)(c). 36 In the present case the findings are set out and the principal issue is whether the primary judge was correct in concluding that the Tribunal had satisfied the requirements of s 430(1)(d) and that the evidence and other material on which its findings on material facts were based had been "referred to". 37 Each of the three findings quoted in par 21 above indicate that the Tribunal had considered the facts which the Tribunal considered material as recounted by Mr Pollocks and it expressed an opinion that the asserted facts or sequence of events was implausible. The Tribunal indicates in those findings that it did not believe the asserted facts existed because they did not correspond to the circumstances which the Tribunal considered were consistent with normal human behaviour or experience. 38 The gravamen of the complaint of the appellants is that these findings must have been based on some other incidental findings or material accepted by the Tribunal which provided the yard-stick against which the facts asserted by Mr Pollocks' evidence were measured in order to enable it to reach the conclusion the assertions were implausible. The three findings constitute, in substance, a rejection of the evidence of Mr Pollocks concerning the events and incorporate a brief reference to the evidence. It is not for this Court to substitute its views as to whether the assertions were implausible or whether the conclusion reached by the Tribunal is justified on an objective analysis by this Court on an application for review. When each of the findings is examined it is apparent on the face of the findings themselves what evidence the Tribunal has referred to in making the findings. 39 The first finding of implausibility refers to the evidence that the friend in question purported to be aware of the extent of the damage or the enormity of the occurrence within an hour of the explosion of the first bomb. In the second finding reference is made to the evidence that Mr Francis sought refuge in the appellants' house and that it was approximately the same distance from the place of the bomb blast. In the third finding of implausibility the finding refers to the sequence of events and the period of time during which Mr Francis lived through a number of incidents of a similar nature to the bombing without seeking refuge for fear of reprisals. It is not necessary that there should be an in‑depth discussion or evaluation or indeed a detailed catalogue of every piece of evidence on the basis of which the findings on these material questions of fact were made. The findings in the present case, in our view, sufficiently "refer" to the evidence on which the findings on material questions of fact were made and therefore satisfy the requirements of s 430 of the Act. 40 For the above reasons the Court is not satisfied that the appellant has shown any error of law or principle in the reasoning of the primary judge or in the reasons for decision given by the Tribunal. 41 Accordingly, the appeal should be dismissed with costs and the Court so orders. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 4 July 2001 Counsel for the Appellants: Mr A Krohn

Solicitors for the Appellants: Pushpa Hettiarachi & Associates

Solicitor for the Respondent: Australian Government Solicitor