VGAB v Minister for Immigration & Multicultural & Indigenous Affairs

TRIBUNAL'S DECISION 3 The Tribunal did not regard the appellant as a credible witness. It accepted that he had served in the army, but did not accept that he had left in the circumstances he described, that he had been involved in burying people in mass graves, or that he had been threatened by the four officers who had been responsible for the killings. The Tribunal said that the exact matching of his claims with the events described in a newspaper and a Human Rights Watch Report submitted by the appellant caused it to suspect that he had prepared his case based on these reports and then presented the reports to substantiate the claims. 4 The Tribunal also rejected the claim that one of the four officers had shot two of the soldiers the appellant said had been ordered to assist him in burying the victims. It said: "Based on its disbelief of these elements of the applicant's claim, the Tribunal finds that the applicant has fabricated the claims that he was one of the soldiers required to help dig mass graves and that the four officers involved threatened that he would be killed if he spoke about what had happened. The Tribunal finds that the applicant did not desert from the army in 1999 because he feared that he would be harmed by the four officers. The Tribunal therefore does not accept that the applicant's family were threatened by the four officers or their associates …. The Tribunal is strengthened in its conclusion that the applicant's claims are not true by the implausibility of his story that while he was hiding in a temple in Colombo, he was able to participate in selection trials for a Sri Lankan Life Saving Association tour of Australia and that he was assisted to come to Australia to escape his fear of persecution by being selected for the team."

The Tribunal rejected a letter from Mr Lokuge which was said to corroborate the appellant's claims because it did not accept that he had been truthful in what he had told Mr Lokuge any more than he had been truthful in what he had told the Tribunal. It noted an inconsistency between the appellant's evidence and the letter which gave it further cause to disbelieve his claim to have been involved in burying people killed by the four officers.

DECISION APPEALED FROM 5 Two grounds of appeal were pursued before the Magistrate. The first was that the Tribunal had made a jurisdictional error in that it asked the wrong question in relation to "own nationality" protection. The Tribunal is said to have asked the appellant: "Why wouldn't the Sri Lankan government protect you?"

It was submitted that this was not a question the Convention required the Tribunal to answer. Rather it should have asked what was the basis for the appellant's unwillingness to avail himself of his country's protection. It was said that had that question been asked, the appellant would have been able to explain why his "well founded fear of persecution" would have prevented him from approaching the government. The Magistrate rejected this ground. Her Honour said:

"The issue is not whether any particular question was asked during the decision making process but whether the decision maker directed its mind to the question that that decision maker was required by statute to answer. There is no suggestion in the reasons for decision that the Tribunal misunderstood its functions. … If in attempting to understand the claims made by an applicant the Tribunal asks a question or questions not strictly required in order for the Tribunal to discharge its task, that does not reveal error of law unless by an examination of the reasons provided by the Tribunal that examination shows that the Tribunal misunderstood its task. That is not the case here. Indeed, the Tribunal made a finding of fact that the applicant was not in need of protection from anyone as he had not experienced the threats or engaged in the conduct that he claimed gave rise to his fear of persecution. Thus whether the Sri Lankan authorities would protect him (as submitted by counsel for the respondent) did not play any part in the Tribunal's decision to refuse to grant the applicant a protection visa." 6 The second ground of appeal as recorded by the Magistrate was that in finding the applicant was not a credible witness the Tribunal "left itself open to a claim that it was open for a reasonable person to apprehend bias in its deliberations and reasons". Her Honour rejected this ground. She said: "The Tribunal determined as a factual matter to reject certain parts of the applicant's evidence. The Tribunal determined that the applicant was not a credible witness, which is a finding of fact."

Her Honour then referred to W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 at [64] where Tamberlin and Nicholson JJ said:

"A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding."

The Magistrate said it was clear that the Tribunal's credibility findings were open on the evidence.

APPLICATION TO RECEIVE FRESH EVIDENCE 7 When the appeal was called on, the appellant's counsel sought to tender the tapes of the Tribunal's hearing and transcripts thereof. They were not before the Magistrate. They are said to be relevant because they will disclose the "wrong question" referred to at [5], and that a witness to the burial incident, who could have corroborated the appellant's account, was not required by the Tribunal to give evidence. 8 The tapes can be put aside. The appellant's counsel informed me that the transcript accurately records what is on the tapes. The tapes may have had some independent relevance to the bias ground that was before the Magistrate. But that is not pursued here. The tender of the tapes was not pressed. 9 Resort to the transcript is not necessary in order to deal with the "wrong question" issue. Although there was no evidence before the Magistrate about the "wrong question", because the tapes and transcript were not before her, the matter appears to have been argued on the basis that the Tribunal had asked the question set out at [5]. I will proceed on the same basis. 10 In Guss v Johnstone [2000] FCA 1455 at [30] Sackville J, with whom Drummond and Dowsett JJ agreed, said: "it is ordinarily necessary for the party seeking to adduce further evidence to demonstrate that the evidence relied on is cogent; that is, the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at the trial." 11 The application was not supported by any evidence. In particular there was no evidence from the burial witness as to what he would have said had he given evidence before the Tribunal. The witness lives in Melbourne and attended the Tribunal hearing. In the absence of such evidence the Court is unable to determine whether his evidence would be likely to have produced a different result had it been available to the Magistrate. Cf Guss v Johnstone at [29], [35]‑[42] and Cottrell v Wilcox [2002] FCA 232 at [16]. Further, the transcript was in counsel's possession and could have been tendered to her Honour. It is a factor militating against the exercise of the discretion to admit fresh or further evidence on appeal that it was in the hands of the party and available for use at the trial. See Wilson v Official Trustee in Bankruptcy [2000] FCA 304 at [34] and CDJ v VAJ (1998) 197 CLR 172 at [116]. In these circumstances, I will not receive the transcript into evidence.

GROUNDS OF APPEAL TO THE FULL COURT 12 The appellant first contends that the Magistrate erred in concluding that the Tribunal's credibility findings were open on the evidence. This ground was not taken before the Magistrate. The contention was that the Tribunal's conclusions about credibility established that it had prejudged the application. It does not seem that the credibility findings themselves were attacked, for they were the basis of the bias case. The grounds of review in the application for an order of review by this Court, which was remitted to the Federal Magistrates Court, do not attack the Tribunal's credibility findings. Counsel for the respondent alerted the appellant's counsel to the need to obtain leave to raise the new ground. No express application was made, though it may be that counsel thought he had by implication sought leave. In case that is so, I will say why I would not have granted leave. Leave to rely on a ground of appeal not raised at first instance will be granted only if it is expedient in the interests of justice that the new issue should be argued and decided. Whether it is so expedient requires reference to considerations such as the appellant's prospects of success on the new argument, the explanation given for failing to raise the argument below, the prejudice to the respondent in allowing the raising of a new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process. See VACC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [26]. No submissions were advanced by the appellant in relation to these matters. His counsel, who appeared before the Magistrate, offered no explanation as to why no attack on the Tribunal's credibility findings had been made. The prospects of success on the new ground, if it were allowed, are so slight that it would be pointless to give leave. In NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] the Full Court said: "The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact."

The Magistrate acted in accordance with that admonition. As I have said, her Honour referred to W148/00A, which is to a similar effect. She would have made a reviewable error if she had taken upon herself to review the facts upon which the Tribunal made its credibility finding.

13 For the reasons I have given, I will not allow the new ground to be raised. It is clear from what I have said that, if I had allowed it, I would have rejected it.

THE SECOND GROUND OF APPEAL 14 This ground is that the Magistrate erred in not finding that the Tribunal had denied the appellant procedural fairness because it failed to consider an integer of his claim, namely why he could not or would not seek protection from the Sri Lankan government. As I have said at [9], the matter appears to have been argued on the basis that the Tribunal had asked the "wrong question" even though there was no evidence of it before the Magistrate. The Magistrate's rejection of the ground involved no error. Her Honour correctly said that in a jurisdictional error context, "asking the wrong question" is not to be understood in the literal sense of asking a witness a particular question in the course of an inquisitorial hearing. Instead it is a reference to a decision‑maker directing its mind to a question other than the one it is required by statute to answer. In other words, the inquiry is whether the decision‑maker has properly understood its function, not whether any particular question was asked during the decision‑making process. There is nothing in the Tribunal's reasons for decision to suggest that it misunderstood its function. Indeed counsel accepted this. In its treatment of the law relating to the meaning of "refugee", the Tribunal correctly stated the "own nationality" protection position, and accurately recorded the way the appellant put his case, namely that he did not trust the government to protect him, for the reasons he gave. 15 Further, as the Magistrate accepted (see [5]), whether the Sri Lankan authorities would protect the appellant did not play any part in the Tribunal's decision. It found he was not in need of protection from anyone, because he had not experienced the threats or engaged in the conduct that he claimed gave rise to his fear of persecution. Thus, even if the Tribunal had erred in the manner urged, that error would not have provided a basis upon which the decision could be set aside.

CONCLUSION 16 The appeal must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Counsel for the Applicant: A Hands, appearing pro bono

Solicitor for the Respondent: Australian Government Solicitor