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[1999] FCA 615
Federal Court of Australia
1999-04-14
Emmett J, Emmett JJ
Original judgment source is linked above.
REASONS FOR JUDGMENT OF JUSTICES EINFELD AND NORTH 1 The facts of this matter are set out in the reasons for judgment of Justice Emmett which we have had the benefit of reading. We agree with his Honour that the arguments advanced by the appellant do not in this case provide adequate reasons for overriding the Tribunal's decision. Nonetheless, for our part we consider that at least two of the appellant's arguments provided a basis for concern and for careful consideration. 2 One relates to the Tribunal's reliance on the creditworthiness of the appellant by comparing statements made at the airport upon arrival and other places with those made at interview. A number of Judges of the Court have previously expressed serious reservations about this method of deciding applications for refugee status. As commonsense, humanity and the Handbook of the United Nations High Commissioner for Refugees demonstrate, a person escaping persecution or worse, often not knowing if there will ever be an opportunity to see loved ones again, is likely to be quite distressed and nervous upon arrival in a foreign country for the first time, obviously not knowing what might occur. In many cases, including this appellant's, they will be at best uncertain in English and will generally not be in a position to require an interpreter. They will normally not be accustomed to official interrogation in English. They will have been travelling for several hours. What they say at that time should not be treated as definitive of a set of facts as, or treated as more likely to be true than, matters stated to department officials or the Tribunal at a hearing some time later. 3 Moreover, hearings before the Tribunal are virtually unique in Australian legal procedures and in the common law system generally. They are not interrogatory or adversarial proceedings: Abebe v The Commonwealth of Australia [1999] HCA 14, lawyers are generally absent, and the appropriateness of providing an interpreter is apparently within the sole discretion of the Tribunal. The Tribunal will normally not be proficient in the first language of the asylum seeker and will generally know nothing of the culture or practices of the person's country of origin or the idiom of its language. The Tribunal is both judge and interrogator, is at liberty to conduct the interview any way it wishes, without order, predictability, or consistency of subject matter, and may use any outside material it wishes without giving the person being interrogated the opportunity of reading and understanding the material before being questioned about it. Moreover, the Tribunal has been known to rely on supposed inconsistencies in the factual account being given without stating the alleged contradictions to the interviewee and giving the person an opportunity to explain them. 4 These methods contravene every basic safeguard established by our inherited system of law for 400 years. They should not lightly be cast aside except by express legislation complying with the Australian Constitution. They certainly do not, in our opinion, provide an easy basis for accepting conclusions based on credibility. With all the traditional criteria for hearing petitions of persons doing business before the courts, it is difficult, and rare, enough for cases to be determined on the basis alone of the general creditworthiness of a party or witness by reason of inconsistency between two or more statements the person has given in different and often stressful situations. It is or ought to be virtually impossible for such a finding by the Tribunal unless in a very clear case where there is other, usually written, material of impeccable quality and where the alleged inconsistencies or contradictions are squarely put to the person being interrogated and the answers taken and expressly recorded in the reasons for determination so that the rejection of credibility can be examined. 5 In this case the Tribunal erroneously relied upon the perceived inconsistency between the immigration inspector's report of the interview with the appellant at Melbourne airport and later accounts given by the appellant on the question whether he had spent two years living and working in Colombo since late 1994. Reliance upon this inconsistency was not a proper step in rejecting the account of the appellant. In a civilised society based upon the rule of law, it would be expected that the failure of the Tribunal to comply with such a fundamental requirement would provide an express ground for judicial review of the decision in question: State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] 73 ALJR 306. As explained in Justice North's judgment in Sun Zhang Qui v Minister for Immigration and Ethnic Affairs 151 ALR 505 at 564-5, it is not so under the Migration Act. 6 The second problem which affected the Tribunal's determination in this case was the joint or partially joint hearing which it afforded the appellant in conjunction with another person. We agree with Justice Emmett that in this particular case the ultimate result of the application was not affected by the procedure adopted but in our view this practice should not occur. Although the legislation provides for quick and informal hearings of applications, the Parliament should be presumed to have intended that each asylum seeker be afforded a separate and exclusive hearing, to which no other person unrelated to that person's application is admitted unless invited by the person. Privacy of hearings is guaranteed by the statute. It cannot be waived by the unilateral action of anyone. 7 The reason we agree with Justice Emmett that the appeal must be dismissed notwithstanding the defects we have discerned in the processes followed by the Tribunal, is simply that we can see no basis upon which the appellant could have succeeded even if these defects had not occurred. Whilst the Court is not empowered to decide or to form its own opinion about facts, it is in our view futile and exceptionally wasteful to uphold appeals because of procedural defect in cases where the evidence is so clear that correction of the defects could not possibly affect the result. This is such a case. We agree with the reasoning of Justice Nicholson at first instance and with the conclusions of Justice Emmett and the orders he proposes. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justices Einfeld and North.
Associate: Dated: 12 May 1999 IN THE FEDERAL COURT OF AUSTRALIA
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Emmett J 8 This proceeding is an appeal from a decision of a Judge of the Court dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the respondent ("the Minister") not to grant a protection visa to the Appellant. 9 The Appellant is now a 35 year old Sri Lankan national of Tamil extraction. He is of the Hindu faith and hails from Mahiyapiddy in the Jaffna region of Sri Lanka. The Appellant arrived in Australia on 30 March 1997 without a visa. On that day he was interviewed by an immigration inspector at Melbourne airport. On 8 April 1997, he applied for a protection visa. 10 On 4 June 1997, the Appellant was interviewed by the Minister's delegate, who determined on 12 June 1997 that the Appellant was not a refugee. On 16 June 1997, the Appellant applied to the Tribunal for a review of the delegate's decision. A hearing took place before the Tribunal on 1 July 1997. On 25 July 1997 the Tribunal affirmed the decision made by the delegate. 11 By application dated 14 August 1997, as subsequently amended on 9 September 1997, the Appellant applied to the Court for an order of review of the decision of the Tribunal. On 24 April 1998, R.D. Nicholson J dismissed the application with costs. The Appellant has now brought this appeal to the Full Court by notice of appeal dated 5 May 1998. 12 In the amended application for review, the grounds stated were as follows: (1) The decision involved an error of law within section 476(1)(e) of the Migration Act 1958 (Cth) in that, rather than considering whether or not the Appellant had a subjective fear that was objectively well founded, the decision-maker sought to rely on conflicting statements made by the Appellant to determine credibility and failed to look properly or at all at the individual claims of the Appellant to see whether the claims of the Appellant satisfied the test in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. (2) The decision-maker erred in law in adopting a procedure whereby he accepted parts of the Appellant's claims and rejected other parts in circumstances where there was no logical or reasonable basis for doing so and there was no logical or accepted basis for the decision-maker differentiating between evidence he accepted and evidence he rejected. It was inappropriate in the circumstances to accept as credible parts of the Appellant's claims but reject other aspects of the Appellant's claims on the basis that such claims were inconsistent with statements made by the Appellant on his arrival at Melbourne airport. Such a procedure constituted a failure to afford substantial justice or properly consider the merits of the Appellant's case within the meaning of section 420(2)(b) and accordingly constituted a ground of review under section 476(1)(a). (3) The decision-maker erred in law in that he effectively placed an evidentiary burden on the Appellant to state directly all claims to be recognised as a refugee at the time the Appellant was at Melbourne airport. In drawing an adverse inference as to the Appellant's credibility on the basis of the information then supplied, the decision-maker prejudged and/or failed to look objectively at other material submitted and statements made by the Appellant in circumstances which amounted to failure to afford substantial justice or to look properly at the merits of the Appellant's case. (4) The decision-maker erred in seeking to support findings to reject the Appellant's credibility by drawing conclusions and making adverse findings on his own suppositions which were not supported by evidence or any probative material. (5) The decision was totally flawed in that the decision-maker having formed a view that the Appellant's claims were not credible, rejected all material put before him rather than considering whether his claim fell within the terms of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention"). 13 The argument on appeal did not focus directly on the grounds specified in the application for review. The amended grounds of appeal before the Full Court were as follows: "1. His Honour erred in deciding that the Tribunal had not failed to act in accordance with the substantial justice and merits of the appellant's case in its approach to the determination of the appellant's case, including in relation to its approach to the assessment of the appellant's credibility, within ss 420(2)(b) and 476(1)(a), alternatively s 476(1)(e), of the Migration Act 1958 ('the Act') and, in so doing, His Honour misconstrued the scope, and nature, of the obligation imposed upon the Tribunal to so act. 2. His Honour erred in deciding that the Tribunal had not failed to act in accordance with the substantial justice and merits of the appellant's case in its approach to the determination of the appellant's case, in the circumstances which attended the holding of the 'tandem hearing' of the appellant's case and that of Mr J Kirupatharan, within ss 420(2)(b) and 476(1)(a), alternatively s 476(1)(e), of the Act and, in so doing, His Honour misconstrued the scope, and nature, of the obligation imposed upon the Tribunal to so act. 3. His Honour erred in deciding that the Tribunal had not failed, in the circumstance of the exposure of the appellant's identity to the witness who gave evidence only in Mr Kirupatharan's case, to observe procedures that were required to be observed by the Act within s 476(1)(a) of the Act or, alternatively, incorrectly interpreted and applied the applicable law within s 476(1)(e) of the Act and, in so doing, His Honour misconstrued the scope, and nature, of the requirement imposed upon the Tribunal (by s 429 of the Act) to ensure that the appellant's hearing be held in private. 4. His Honour erred in deciding that the Tribunal had not wrongly (within s 476(1)(e) of the Act) interpreted, or applied, the 'well-founded fear' test: (a) in the circumstance that the Tribunal had neither made an express finding as to the appellant's subjective fear nor identified the characteristics of that fear as claimed by the appellant; (b) in the circumstance that the Tribunal had not engaged in the requisite 'speculation' implicit in the 'well-founded fear' test; (c) in the circumstance that the Tribunal had applied a higher threshold than that warranted by the 'well-founded fear' test in its approach to the determination of whether the appellant would be differentially at risk of persecution, as a young Tamil male from Jaffna, upon his return to Sri Lanka; and (d) by approaching the decision of the Tribunal, including the question whether the Tribunal was required to consider whether its finding of fact against the appellant might have been wrong; (i) upon the basis that the tenor of the expression of such findings by the Tribunal justified the Court's confidence in their apparent strength when the findings did not justify that confidence; and (ii) upon the basis that the appellant's challenges to the foundation of the Tribunal's confidence (as reflected in the tenor of its expression of its findings) would be rejected as an attempt to seek a review on the merits when the Court's assessment of the procedure of the Tribunal, of necessity, required the Court to make an assessment of the legal adequacy of: (A) the rational consideration by the Tribunal of the evidence before it; and (B) the Tribunal's consideration of matters that were logically probative of the findings made by it." THE TRIBUNAL'S FINDINGS 14 Before the Tribunal, the Appellant claimed that he worked on behalf of the Liberation Tigers of Tamil Eelam ("LTTE") from 1984 or 1985. He said that the LTTE asked him to work for them after the departure of the Indian Peacekeeping Force ("IPKF"). He said that his work on behalf of the LTTE included building bunkers and shelters, erecting stages for meetings and building other structures. He said that his work on behalf of the LTTE was known throughout his village. 15 The Appellant told the Tribunal that he went to Colombo for a week in 1994 in order to obtain a passport. He obtained a passport in August 1994 which he said he did not use until coming to Australia. The passport contained entries attesting to two changes in his occupation but he claimed not to know why. The Appellant said that he saw no need to leave Sri Lanka in 1994 as Jaffna was under LTTE control. He told the Tribunal that he spent about a week in Colombo in late November 1994, after which he returned to Vavuniya. He said that he again went to Colombo for 7 or 8 days over the Christmas period in 1994 and did not experience any problems. He also told the Tribunal that on one occasion in 1994 he was stopped by the authorities, but after his ID card was checked he was left alone. 16 The Appellant stated that he left Jaffna in 1995 when the security forces advanced on the area. He said that a brother-in-law was killed at that time, although in his initial statement he explained that the death of his brother-in-law occurred as a result of a snake bite. He claimed that in October 1996 he went to Vavuniya where he was beaten at a camp where checks were made concerning him over the course of about a week. He said that he was in camps in Vavuniya for more than 3 months. 17 After a brother-in-law visited him, he was given permission to go to Colombo where he went by train. He remained in Colombo for about 1½ months staying first with his brother-in-law and then with a friend. He told the Tribunal that he left Colombo by air in March 1997, travelling first to Singapore where he met an agent at the airport who handed him a boarding pass for a flight to Australia. He claimed that he did not know what name was on the boarding pass. 18 The Appellant claimed before the Tribunal that groups that support the Government against the LTTE will regard him as a member of the LTTE and will seriously harm him. He said that notwithstanding the fact that his six siblings are still living in Jaffna, it is not possible for him to settle there now as the security forces are in control and his history of political activity leaves him especially vulnerable to harm. 19 A witness from the Australian Council for Tamil Refugees told the Tribunal that Jaffna is now under military control and that many people, including innocent citizens, are being harmed. He said that it is problematic to endeavour to pass through check points without ID and that Tamils are in constant fear for their well being. He said that some ten thousand people are waiting in Vavuniya, but only a handful are given permission to pass through the check points to head south. 20 The Tribunal was satisfied that the Appellant is able to return to Colombo. The Tribunal considered that, while serious abuses of human rights continue to occur in Colombo, the Appellant had encountered no difficulty there. The Tribunal found that, in view of his previous association with Colombo and the absence of any problems there, the Appellant is able to return to Colombo and that any fear of persecution held by him is not a well founded fear for a Convention reason. 21 In the alternative, the Tribunal found that the Appellant is also able to go to Jaffna. The Tribunal concluded that, on the evidence before it, the death of the Appellant's brother-in-law did not occur for a Convention reason. The Appellant has six siblings who continue to live unharmed in Jaffna. The Tribunal considered that the Appellant's claim that he was beaten in a transit camp in Vavuniya in late 1996 is at odds with other evidence that he was living in Colombo at that time. The Tribunal was not satisfied on the evidence before it that the Appellant spent any time in a camp at Vavuniya after 1995. 22 After referring to a cablegram from the Department of Foreign Affairs and Trade ("DFAT") in relation to security checks at Vavuniya, the Tribunal concluded that the fact that the Appellant was able to obtain a pass to Colombo at some point of time indicated that he was not considered a security risk or suspected of being a member of the LTTE. 23 The Tribunal found that the Appellant was provided with a passport in 1994 which he was able to retain. In preparation for his eventual trip to Australia, he produced his own passport and any other ID that was required, and passed through all checks. Notwithstanding the existence of widespread corruption in Sri Lanka, the Tribunal considered that it was improbable that the authorities would permit the Appellant to leave Sri Lanka if they had any real interest in him. The Tribunal referred to information from DFAT indicating that passports are issued only after presentation of a birth certificate and a national identity card, and after checks of registers of names of people in whom the authorities have an interest. Passports must be collected in person unless there are medical reasons for not doing so. 24 The Tribunal referred to an independent report that the LTTE had run a virtual state within a state since 1990 in the Jaffna peninsula. Between October and early December a fiercely fought offensive had pushed them out of their stronghold, Jaffna City. The report said that Jaffna City appeared to be limping back to a semblance of normality and that tens of thousands of civilians were returning home. The Tribunal also referred to DFAT communications indicating that the LTTE had lost its administrative and logistical base in Jaffna, as well as its financial support from the people who have now moved back to Jaffna. The Tribunal referred also to a Canadian source confirming that many people had moved back to the North since the Government had asserted its control in Jaffna. 25 The Tribunal observed that, notwithstanding reports of an improvement in the human rights situation, there continued to be reports of some random arrests, of frequent mistreatment of detainees and of other more serious breaches of human rights. The Tribunal concurred with the analysis said to be submitted by the Appellant's adviser that a category of persons who are differentially at risk of persecution is that of "young Tamil males with real connections to the LTTE". However, the Tribunal considered that a caveat must be applied to such an analysis to the effect that the LTTE connection must be sufficiently strong and produce a profile such that it would invite the adverse attention of the authorities. The Tribunal considered that in certain circumstances a former LTTE connection may be insufficient to arouse the interest of the authorities due to its commonality or its lack of recency or some other mitigating factor. 26 The Tribunal considered that it was apparent that anyone who lived on the Jaffna peninsular during the period of defacto government by the LTTE would, out of necessity at least, have had informal, and probably "official" dealings with the LTTE. The Tribunal observed that the Appellant had testified that all villagers were required to work on behalf of the LTTE. The Tribunal also noted that the Appellant's six siblings who continue to live in the North have not come to harm. 27 The Tribunal took account of the fact that the Appellant had since 1994 been able to hold a passport and to travel to Colombo, passing stringent security checks and that he had been free of difficulties of any significance in Colombo. The Tribunal was not satisfied that any activity that the Appellant may have undertaken in Jaffna provided him with a profile such that he would be of interest to the authorities. The Tribunal concluded that the Appellant's alleged activities had not brought him to the attention of the authorities despite the number of opportunities that have existed for them to take action against him. 28 The Tribunal concluded that any fear that any erstwhile activities in support of the LTTE, such as were outlined by the Appellant, might give rise to a well founded fear of persecution for a Convention reason is not supported by the Appellant's later experiences. The Tribunal found that the Appellant had not provided any evidence to satisfy the Tribunal that a person with the profile of the Appellant would face a real chance of persecution by reason of his race or political opinion. CONSIDERATION OF GROUNDS OF APPEAL Ground 1 - Appellant's Credibility 29 The Appellant contended that, while the Tribunal did not make express reference to an adverse finding with respect to the Appellant's credibility, its reasons illustrate that the decision was predicated primarily upon its negative view of the Appellant's credibility. The primary issue upon which such a view was predicated was the Tribunal's perception, and ultimate finding, that the Appellant had resiled from the statement attributed to him in his interview by the immigration inspector concerning his alleged residence in Colombo. The Appellant contended that the fair and just disposition of the case required further investigation having regard to the following circumstances: · The revision of material parts of the immigration inspector's report. · The consistency of the Appellant's claims on the substantive matters put forward by him. · The absence of an interpreter at the airport interview. · The status of the immigration inspector's report as relating to no more than a screening interview for the purposes of determining whether a refugee claim was intended to be made. · The Appellant's explanation to the Tribunal that he had told the immigration inspector that his brother-in-law, with whom he had stayed, worked as a mason in Colombo. 30 The Appellant contended that the Tribunal's approach to the assessment of his case was affected by its unquestioning reliance upon the immigration inspector's report. Because it did not deviate from its initial view that the Appellant had resided in Colombo since 1995, the Tribunal discounted the detailed and consistent account given by the Appellant in other documents filed in support of his application, at the departmental interview and at the hearing. The Appellant contended that such reliance was unsafe because of the existence of a draft of the report which was found on the department file. There were changes from the draft including a change in the reference to the capacity of the Appellant to comprehend English. 31 The Appellant contended further that the Tribunal did not refer to the DFAT communications and other country information which were referred to in submissions made on behalf of the Appellant. It was said that the Tribunal failed to consider properly the extent of official corruption prevalent in Sri Lanka as chronicled by Australian government agencies which would enable a person such as the Appellant to pass even stringent security checks. 32 Those considerations were said to lead to the conclusion that the Tribunal failed to act according to the substantial justice and merits of the case within section 420(2)(b) of the Act. I consider, however, that such a contention, notwithstanding the decisions of the Full Court in Eshetu v The Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 and Sun Zhan Qui v The Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, has no substance. Findings of fact are a matter for the Tribunal. The weight to be given to evidence available to the Tribunal is a matter for the Tribunal. I consider that this ground amounts to no more than an invitation to the Court to take a different view of the material before the Tribunal. Ground 2 - Tandem Hearing 33 It appears that the member who constituted the Tribunal decided to hear two applications for review at the same time. One application was that of the Appellant. The other was that of Mr Kirupatharan. They apparently arrived in Australia together. Both applicants were present when the member first entered the hearing room. The member said that he would hear the evidence of each in confidence but that evidence concerning Sri Lanka, which was common to both applications, would be taken on the basis that it would be evidence in both hearings. Mr Ramanan, from the Australian Council for Tamil Refugees, gave evidence which was received by the member in relation to both matters. 34 The Appellant contended that while there may have been utility in holding the Appellant's hearing and that of Mr Kirupatharan "in tandem", in the pursuit of an economical, informal and quick processing of those applications, the actual process was not conducive to the "fair" and "just" procedure mandated by section 420 of the Migration Act. 35 It is difficult to see why the procedure adopted by the Tribunal was not fair and just by reason only of that matter. I do not consider that there was any failure to act according to substantial justice and the merits of the case by reason of the procedure adopted. Ground 3 - No Private Hearing 36 By section 429 of the Migration Act, the Tribunal is required to ensure that a hearing take place in private. There are good policy reasons for such a requirement. An applicant for a protection visa should be confident that nothing said in the course of a hearing would find its way back to the authorities in the country in which he or she claims to be persecuted. 37 However, in the present case, it appears that the fact that the Appellant was making an application was already known to Mr Kirupatharan. It was not suggested that the evidence of the Appellant was given in the presence of Mr Kirupatharan. The taking of evidence from Mr Ramanan in both proceedings at once does not, in my opinion, constitute a relevant failure to comply with section 429 of the Act such as would justify intervention of section 476(1)(a) of the Act. Ground 4(b) - (d) - Well Founded Fear 38 The Appellant contended that the Tribunal's approach to the assessment of the Appellant's case was based upon an incorrect interpretation of the test for a "well founded fear" of persecution. It was said that the Tribunal failed properly to interpret and embark upon the process of determining whether the Appellant had a well founded fear in accordance with the decisions of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567. It was said that the Tribunal failed to "speculate" as to what might befall the Appellant, in all the circumstances of his case and in the context of his peculiar circumstances, were he to return to Sri Lanka. It was said that, against the backdrop of the Tribunal's "irrational, unfair and unjust" acceptance of the immigration inspector's report in preference to the claims of the Appellant, the Tribunal dwelt unduly upon the past treatment of the Appellant and was left with nothing "upon which to engage in the requisite speculation". It was contended that the Tribunal had failed to assess properly the Appellant's differential risk of persecution as a young Tamil male from Jaffna. It was said that the test applied by the Tribunal, of a sufficiently strong connection to the LTTE such as to produce a profile that would invite adverse attention of the authorities, was higher than was required. 39 However, the Tribunal, in its reasons, directed itself as to the law concerning well founded fear of persecution as interpreted in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. This Court should not assume that a Tribunal did not apply the correct test unless that appears clearly from the Tribunal's reasons - Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271. The Tribunal made an express finding of absence of real chance of persecution if the Appellant returned to Jaffna. It did so after giving appropriate consideration to the Appellant's profile. I do not consider that there is a reason for concluding that the Tribunal wrongly interpreted or applied the test for a well founded fear of persecution. Ground 4(a) - Subjective Fear 40 The Appellant contended that the Tribunal failed to apply the correct test in that it neither made an express finding as to the Appellant's subjective fear nor identified the characteristics of that fear as claimed by him. However, even if it be assumed that the Appellant had the relevant fear, the question still remains as to whether the fear was well founded. The Tribunal, in effect, made a finding that any fear which the Appellant in fact had was not well founded. Accordingly, the failure to make a finding as to the Appellant's subjective fear is of no relevance. OTHER CONSIDERATIONS 41 The Tribunal based its decision on two alternative bases. The first involved rejection of evidence given by the Appellant concerning the time spent by him in Colombo. The Tribunal made a finding that the Appellant had spent at least two years living and working in Colombo and had not reported any harm in Colombo. The Appellant denied that he had spent two years living and working in Colombo. That was the period during which the Appellant, according to his written statement, had spent time in detention camps when he was kicked and beaten. The Tribunal's conclusions in that regard are based very much on the report of the immigration inspector upon the Appellant's arrival at Melbourne airport. 42 The thrust of the Appellant's complaint relates to the Tribunal's findings concerning the Appellant's time in Colombo. The first of the two alternative bases upon which the Tribunal based its decision was that the Appellant was able to return to Colombo. A critical finding by the Tribunal was that the Appellant had spent at least two years living and working in Colombo since late 1994. Since he had reported no harm from living in Colombo, the Tribunal concluded that he was not at risk in Colombo. It is not surprising that the Appellant did not report any harm in Colombo since, before the Tribunal, he denied that he had spent at least two years living and working in Colombo. 43 There was evidence before the Tribunal of the immigration inspector's report of his interview of the Appellant at Melbourne airport. The report contained the following statement: "PAX has spent the last (2) years living in Colombo and working as a builder. The remainder of his family. Mother, three sisters and three brothers still live in the village of Mahiyapiddy in the Jaffna district. Which he left in 1995 as it was no longer safe for his to remain. Due to the problems with the army and this was the reason for him leaving Sri Lanka and seeking refugee status in Australia." 44 The immigration inspector was not called to give evidence before the Tribunal and the statement that the Appellant had spent the last two years living in Colombo was at odds with the evidence which the Appellant gave before the Tribunal. The Appellant contended that it was unsafe for the Tribunal to rely on the evidence of the immigration inspector's report in circumstances where the inspector was not called and the Appellant did not have available to him a Tamil interpreter at the interview. The Appellant contended that any inconsistency could well be explained by misunderstanding on the part of the inspector. 45 However, the report itself contained a statement that the Appellant's knowledge of English was good and that he was able to be interviewed without the assistance of a Tamil interpreter. Further, the circumstances surrounding the Appellant's arrival, as recorded in the Inspector's report, were such as to arouse suspicion. The Appellant in fact travelled under a false name although he held his own Sri Lankan passport and identification card. He would not, according to the report, provide any details concerning the initial part of his journey from Colombo to Singapore. He arrived in Australia from Singapore. The Appellant had travelled under a ticket booked in Dubai to Melbourne. Visas had been granted to UK passport holders in London, although the visa had been cancelled on 28 March 1997, two days before the Appellant's arrival. 46 The Tribunal rejected the Appellant's evidence that he had been mistreated in Vavuniya in late 1996 because of its conclusion that he had been living in Colombo. That conclusion also seems to play a part in the reasoning process which supported the alternative basis of the Tribunal's conclusion. Further, the Tribunal was satisfied that the Appellant is able to go to Jaffna because it was not satisfied that he had spent any time in the camp at Vavuniya. 47 Ultimately, the Tribunal appears to have based its decision on the evidence which was before it. That finding inevitably involved a determination of credibility in relation to the Appellant. I do not consider that the Appellant's complaint amounts to anything more than a complaint as to the weight given by the Tribunal to different aspects of the evidence before it. The Tribunal attached weight to independent evidence that the fact that the Appellant was able to pass to Colombo at any time was an indication that he was not considered a security risk. 48 The fact that the Appellant was provided with a Sri Lankan passport and was able to retain the passport was inconsistent with the contention that the authorities regarded him as a danger. I consider that it was open to the Tribunal to conclude that the concept of having a "real connection" with the LTTE required a profile such as would attract the adverse attention of the authorities. There was material to which I have referred upon which the Tribunal could fairly base a conclusion that the Appellant, while he had done work for the LTTE as had all other villagers, his connection to the LTTE was not sufficiently real to place him in a situation where there was a real chance of danger, being a substantial as distinct from a remote chance of persecution occurring within the meaning of Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. 49 The alternative basis upon which the Tribunal based its decision involves an assessment of the risk to a Tamil in the Jaffna area, coupled with the fact that the Appellant's siblings apparently reside in Jaffna without any difficulty. I do not consider that any basis has been made out for interfering with the second basis upon which the Tribunal placed its decision. 50 Accordingly, the appeal should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate: Dated: 12 May 1999 Counsel for the Applicant: Mr R. Appudurai
Counsel for the Respondent: Mr C. Gunst QC; Mr W. Mosley
Solicitor for the Respondent: Australian Government Solicitor
Selliah
Minister for Immigration & Multicultural Affairs
(1989) 169 CLR 379
(1997) 71 FCR 300
(1997) 151 ALR 505
(1996) 185 CLR 259
(1997) 144 ALR 567