CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW
43 As mentioned, the applicant seeks to ground his application for judicial review on several bases. It will be convenient to deal with them in turn.
44 The first ground relied upon is (as noted) a claim of failure to make a finding on a material question of fact. In support of this ground, in his careful written submission, Mr Lloyd of counsel has prepared a table which states first, the claims made by the applicant and secondly, the Tribunal's response, or in some cases non-response. The particular matter relied on for present purposes is as follows:
45 In his written submission contained in his adviser's letter dated 27 July 2000, the applicant stated that in 1990 he was attacked by Muslims who were attacking a Hindu temple. He stated that he was attacked with hockey sticks, chased to the edge of a roof, had his throat scratched at with a razor, was forced to jump from the roof and was badly injured in the course of these activities. Following the incident a false charge was filed against him by "Muslim fanatics".
46 On behalf of the applicant, it is said that the Tribunal accepted that the injury had occurred, but the Tribunal made no finding on the question whether the incident had led to a false charge being filed against him. Moreover, the argument runs, the Tribunal did not consider that the beatings/injuries he received were serious enough to constitute persecution. It is said, therefore, on behalf of the applicant, that although the Tribunal accepted that the incident occurred, it did not make any finding on the question of whether the applicant faced a false charge upon his return to Bangladesh, and that this failure constitutes an error of the kind described in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287. It is said, in this connection, that the application for an order of review, for the sake of brevity, referred only to a breach of s430(1)(c) of the Act, but that this also constitutes a reviewable error under s 476(1)(a) of the Act (reference being made in this connection to the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469).
47 I have difficulty accepting the argument. In Singh's case, the majority of the Full Federal Court (at pars 55,56), explained that materiality in this context could arise in one of two ways. First, it could arise (obviously) if the matter were material to the Tribunal's process of reasoning. Secondly, materiality could arise (the majority of Full Court held), if the applicant's case was presented in such a way that it was necessary for the Tribunal to deal with a particular aspect. However, in the present case, when the Tribunal's reasons are read as a whole, I cannot accept that it was necessary for it to make a finding on the particular point raised. As noted, the allegation of the false charge incident was raised only in the letter written by the applicant's advisers, dated 27 July 2000. The Tribunal went to some length to emphasise that the lateness of the provision of the detail of this information reflected poorly on the credibility of the applicant's claims overall. In other words, the approach taken by the Tribunal to what was material was conditioned, properly I think, by the assessment or judgement that the Tribunal was not only entitled, but was bound, to make on the overall credibility of the case sought to be made on behalf of the applicant. As has been noted, the Tribunal found, for the reasons it gave, that overall the applicant's case lacked plausibility and suffered from fundamental defects in terms of the exaggerated nature of the claims made. These are in truth issues not only of credit, but of credibility, which depend upon the Tribunal's assessment, guided as it was (and as it was entitled to be guided), by the sequence of events which objectively occurred, that is to say, the timing and manner in which the details of the information came forward to the Tribunal from the applicant's advisers. In my opinion, given the Tribunal's legitimate approach on this aspect, I do not consider that the particular matter now pointed to was "material", for the purposes of s 430(1)(c) of the Act.
48 The second ground of review is the applicant's claim that the Tribunal failed to comply with ss 424A, 424B and 441A of the Act. By those provisions, the Tribunal is required to comply with a certain procedure, in the events there specified. In those events, the visa applicant is required to be made aware of the particulars of certain information. Subject to s 424A(3), the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason for affirming the decision under review, and ensure, so far as reasonably practicable, that the applicant understands why it is relevant to the review, and invite the applicant to comment on it (see s 424A(1) of the Act). However, s 424A(3) provides that the section does not apply to information (amongst other things) that is not specifically about the applicant or other person, and is just about a class of persons of which the applicant or other person is a member. It is clear then, that information that is specifically about an applicant as distinct from information that is just about a class of persons, of which an applicant is a member, must be disclosed.
49 It is true, as the argument for the applicant stated, that the Tribunal's reasons indicate that it relied upon a significant amount of information that was not sourced from the applicant, and that this information is used by the Tribunal to reject the applicant's claim to face discrimination. In that sense, I accept that it was information which formed part of the Tribunal's reasons for affirming the decision. However, in my opinion s 424A(3) is applicable in the present case. In Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301, Merkel J, at par 21, explained that the following propositions can be taken to have been established by the cases in this areas.
50 First, the obligation to provide the information in question is enlivened when the Tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant. Secondly, if information adverse to an applicant is relied upon in the reasons of the Tribunal, the failure to have complied with the statutory requirements in respect of that information found is a ground of review. Thirdly, untested assertions, communicated to or received by the applicant, can constitute information irrespective of whether the information is reliable or has a sound factual basis.
51 Thus, the section can apply when the Tribunal has received information, regardless of its source, if it considers the information would be a reason or part of a reason for affirming the delegate's decision. Fourthly, the section is concerned with information of which the Tribunal becomes aware of, rather than with its objective decision making process. However, in two cases, members of the Court have specifically considered the position of "country information" in the present context. In Tharairasa v Minister for Immigration & Multicultural Affairs [2000] FCA 520,Carr J said (at pars 15,16):
"In my opinion, the language of s 424A is clear. Section 424A(1)) is expressed to be subject to subsection (3). Subsection 3(a) provides that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.
I think that the exclusion worked by subsection (3) should be applied according to its terms in this matter. The country information upon which the Tribunal relied was not specifically about the applicant or other person and it was just about a class of persons of which the applicant is a member i.e. Tamil civilians, deportees to Sri Lanka, young Tamils, and Tamils wishing to return to Jaffna for other parts of Sri Lanka. In those circumstances, I do not consider that s 424A required the Tribunal to particulars of this information to the applicant…[a]ccordingly, I reject the applicant's first ground."
52 Carr J was followed by Nicholson J in Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331, (at par 28), as follows:
"Section 420 of the Act does not require the Tribunal to refer to every piece of country information which it obtains with respect to an application. The obligation on the Tribunal to give information to an applicant is governed by the provisions of s 424A of the Act. This provides the Tribunal must 'give to the applicant… particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review' and 'invite the applicant to comment on it'. That obligation is 'subject to subs(3)' which provides the section does not apply to information 'that is not specifically about the applicant or another person but is just about a class of persons of which the applicant or other person is a member'. Country information is of this character so that the section has no application in respect of it. I am reinforced in that view by reference to the reasoning of Carr J in [Tharairasa, above], par 16."
53 With respect, I agree. I accept that s 424A will have an application where the information in the Tribunal's decision would be relevant to the review in the sense that it is such that it could have a bearing on the outcome: see Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908, per Hill J, at par 16. I further accept that in the exercise of the discretion to refuse or grant relief by way of judicial review, if it is possible that a different result might be arrived at on the remitter, then the Court is more likely to decline to exercise the discretion and refuse relief: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540 and see also Carlos (above), per Merkel J at par 57, and the other cases there cited.
54 As Merkel J (above) went on to say there:
"Ultimately, the question of whether the discretion is exercised will depend on the particular circumstances of the case."
55 In the present matter, even if I'd been of the view that I should not follow Carr J and Nicholson J on the more general question, I would in the particular circumstances of this case have refused in my discretion to grant relief on this account. It is true, as I have mentioned, that the Tribunal referred to the country information in the course of its reasoning. However, as has been noted from the description I have given of the Tribunal's process of reasoning, some of the material at least, was actually put by the Tribunal to the applicant during the course of hearing in any event.
56 Moreover, when the Tribunal's reasons are read as a whole, it emerges that the Tribunal was likely to come to the conclusion it did solely on the ground that the claims made by the applicant lacked credibility in fundamental respects.
57 The final ground relied upon is a suggestion that there has been an error of law. In essence, the applicant submits that the Tribunal erred when it considered that being beaten and badly injured, or being shot at was not serious enough to constitute persecution. It is accepted of course, on both sides and by myself, that I have jurisdiction to intervene in the present area only if an error of law has been demonstrated, and that an error of fact or mistake in the fact finding process will not enliven the Court's jurisdiction: see for instance Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
58 The distinction between an error of fact and an error of law in a statutory context has recently been considered by the High Court of Australia in Vetter v Lake Macquarie City Council [2001] HCA 12. There, Gleeson CJ, Gummow and Callinan JJ said (at par 24):
"Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as was put by Priestly JA in his judgment [(1999) 18 NSWCCR 34 at 48] whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be, susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test for whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer General [(1940) 40 SR (NSW) 126 at 138.]:'If the facts inferred… from the evidence… are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law'. In his speech in Edwards (Inspector of Taxes) v Bairstowe [1956] AC 14 at 36] Lord Radcliffe identified an error of law as arising if 'the true and only reasonable conclusion contradicts the determination'".
59 Applying that test to the present case, I do not think it can necessarily be said that the facts of an attack and being injured or the fact of being shot at, are necessarily either within or outside the description used in the Convention, in its definition of persecution, for that purpose. It is simply not possible to generalise in this area in a way that will throw up necessarily a question of law.
60 Moreover, when the Tribunal's reasons in the present case are read as whole, what emerges is that the Tribunal's approach was not grounded on any narrow or specific basis by which certain events were isolated and looked at individually. Rather, the Tribunal approached the matter, properly in my view, by considering all the material before it collectively and as a whole, and forming a judgement or assessment in the light of the criteria laid down by the Convention as explained in the course of authority in the High Court of Australia, which was correctly stated by the Tribunal at the commencement of its reasons (see pages 2 to 4 of those reasons).
61 It should be noted that there was no suggestion that, in the statement of those general principles, the Tribunal fell into any error. It follows, therefore, that I am of the view that the application must be dismissed and I so order.
62 The application is dismissed with costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.