Sundararaj v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant - whose evidence to the effect that he left school at the age of 11 in 1972, his schooling having been interrupted by civil unrest in Sri Lanka, does not seem to have been doubted, and who has addressed the Court through an interpreter - appeals against a decision of the Refugee Review Tribunal rejecting his application for a protection visa. This was the second rejection of that application by the Tribunal, a previous rejection having been set aside by Lindgren J, broadly on the basis that three out of the four major incidents on which he relied to establish the foundation of his fear of persecution had not been dealt with by the Tribunal in its reasons. 2 At his second hearing, the evidence of the applicant's experiences as a Tamil in the hill country of Sri Lanka was discussed in some detail; and the applicant's claims were substantially rejected on issues of credit. There is no doubt that the applicant had given false evidence about the situation of his wife and family and about his ability to communicate with them after his departure from Sri Lanka, or at least about his ability to ascertain their whereabouts. The applicant said he had feared to disclose information about his wife and family in case it got back to the authorities in Sri Lanka. 3 The Tribunal did not accept this explanation, but its rejection of the applicant's evidence did not rest on the one point. First, what the Tribunal rejected was any suggestion that difficulties the applicant had prior to December 1995 were of a nature likely to be repeated. Those earlier difficulties had related to a subversive organisation which had since gone out of effective existence. Then, in December 1995, the applicant claimed, he was arrested by the Sri Lankan authorities, being later re-arrested in February 1996, because, as the Tribunal put it, "in September or October 1995 he unwittingly gave accommodation to five people who it subsequently transpired were LTTE - that is "Tamil Tigers" members - who were responsible for the attack on the oil storage tanks at Kulonnawa on 20 October 1995". The Tribunal specifically disbelieved these claims, which went to the heart of the applicant's allegation of a real foundation for his fears of persecution. In doing so, it made no mention of his demeanour, but the disbelief of the oral evidence must, in the circumstances, have involved some assessment of the person who gave it. It must also have involved some view of the inherent probability that the applicant would necessarily have appreciated that the group of persons who stayed over a period at his house were, as in fact they were, LTTE terrorists. Although the Tribunal did not spell out clearly this issue of probability, it twice used the word "unwittingly" in summarising the allegation which it rejected. That was, I think, to put its finger on the aspect of the evidence which made it implausible. In my opinion, no error of law is disclosed by the Tribunal's rejection of the essence of the applicant's case. If he knowingly harboured terrorists, the whole claim was one of a different nature from that which he actually made. Indeed, only the one claim was ever put to the Tribunal. 4 However, it is relevant to the question whether the application should be dismissed with costs, as the Minister seeks, or simply dismissed, to observe that many pages of the decision obfuscate quite seriously the straightforward question of fact on which it depends. A series of discrepancies as to times and other details is discussed at length. In other circumstances, the extraordinary idea that discrepancies of this kind are damaging to the credit of an almost illiterate person communicating through an interpreter - indeed of most people not so handicapped - in respect of past events involving considerable trauma, events the substance of which would tend overwhelmingly to assume the important place in anyone's memory, might well cast doubt on whether the evidence was considered in accordance with the applicable legal principles. 5 Although, in this case I have concluded that the central question of the credibility of the applicant's story, including the importance of his demeanour, must have ultimately dictated the decision, and that no error of law actually affected it, I think in the circumstances the applicant was well entitled to seek the only form of review open to him. The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service. However, in this case, for the reasons I have already given, the application must be dismissed; but I make no order as to costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.