VWAL v Minister for Immigration & Multicultural & Indigenous Affairs

We were detained and questioned intensively by the security forces and detained in custody for three days.

8. However, after being released, I was continually harassed by the LTTE, who would make a number of demands. That because of the allegation that I had provided aid to the LTTE in Saudi Arabia, this information had got around and the LTTE made use of this. They would come to my home and ask if they could store certain items in the house. They would also ask for money and food. That initially, I refused, but they then threatened my family. The threats continued and I did what they asked, as we all knew what happened if you disobeyed the LTTE, especially since my sister's husband was taken by the LTTE in 1990 and we have not heard of him since.

That I was then visited by the police, who alleged that persons associated with the LTTE had been seen at my home and that I had been providing them with assistance. That despite denying the allegations, they refused to believe me and told me that I would be under observation. This really scared me, as there were a number of former members of TELO and EPRLF in the area and I was afraid of what information they might pass on to the authorities. I then contacted my husband and I then made arrangements to depart Sri Lanka.'

3 In his reasons for decision, the learned Federal Magistrate focused first on the following passage from the reasons of the Tribunal; 'The applicant's account of the assistance she gave the LTTE in Town A was not clear to the Tribunal in that she did not claim to have stored weapons for the LTTE in her protection visa application. Additionally, at the review hearing the applicant claimed initially that in the search operation the authorities questioned the applicant but did not know which house they were looking for. She subsequently said that they did not know which house initially but they came to know which house they were looking for. However she claimed that nothing was found at the house because somehow the LTTE had prior knowledge of the search and removed their weapons. The Tribunal finds that the lack of coherence in these accounts and the implausibility of the LTTE getting prior knowledge of the search of her house undermine the credibility of the applicant. The Tribunal finds that the applicant did not conceal LTTE weapons at her house and that the SLA did not search her house after the weapons had been removed.' 4 That passage, his Honour noted, made it apparent that an issue for the consideration of the Tribunal was "what might be described as evidence concerning the storage of weapons by the applicant" for the LTTE. After recording that the Tribunal had made a further finding as to whether the appellant had made any financial contribution to the LTTE, his Honour noted that the issue in respect of that further finding had not been pursued by Counsel for the appellant in the Federal Magistrates Court. 5 After referring to the assertion in the appellant's original written statement which is reproduced at [2] above, the learned Federal Magistrate set out this extract from the Tribunal's reasons which related to the appellant's claim to have stored material for the LTTE; 'The applicant was asked what things she had stored for the LTTE. She replied that she had stored food and weapons. The Tribunal asked what had happened during the search she had described earlier in her testimony. She said that the authorities claimed they had seen the LTTE visiting her house. The Tribunal observed that the applicant had earlier said the authorities did not know the location of her house. She replied that initially the authorities were not sure but then they established its location. Her house was a little outside the town so it was a useful place for the LTTE. The Tribunal asked why the authorities were unable to find the weapons in her house. The applicant said that the LTTE were aware that the authorities were looking for those items so they removed them beforehand.' 6 His Honour's analysis of the Tribunal's treatment of the appellant's statements in her original application and her oral evidence is to be found in these paragraphs of his reasons for decision; '6. The extracts from the RRT decision and the applicant's statement clearly indicate the way in which the factual matrix relied upon in this application had evolved. Initially it is clear from the extracts that the applicant, in referring to items which she had been requested to store on behalf of the LTTE clearly refers to them as "certain items" and then later, upon questioning by the RRT, provides further specific details and refers to the items as being "rice and weapons - guns". It is further clear that in the statement originally made in support of the application the applicant refers to her residence in terms that the police then alleged that persons associated with the LTTE had been seen at (her) home.

7. Hence the way in which the facts evolved explains in part then the reasoning adopted by the RRT when it ultimately found that the applicant did not conceal LTTE weapons at her house and that the SLA did not search her house after the weapons had been removed. In support of her application before this court it was submitted on behalf of the applicant that the claim that she allowed the LTTE to store the certain items in her house has significant repercussions in convention terms. It is argued that this formed a further plank in her fears of the harm that would befall her if she returned to Sri Lanka, as in the case of her sister's husband, who had disappeared.

8. It was acknowledged that in her original application the applicant had indicated that because of the allegation that she provided the LTTE with aid that knowledge then became known to others in the region and the LTTE would attend the applicant's home on the basis that if she provided financial support she may provide other support, including storage of certain items. It was after this that the applicant was visited by police, who made the allegation referred to earlier.'

7 The learned Federal Magistrate then rehearsed the arguments which had been advanced before him by Counsel for the appellant and the submissions in reply on behalf of the Minister, including references made in those respective submissions to various judgments in this Court and the High Court. His Honour then reasoned as follows; '25. I note further the authorities referred to by counsel for the applicant in relation to a finding by an RRT of an account being "implausible". In the present case, in my view, it is difficult to determine a proper basis upon which the RRT has found a lack of coherence in the accounts of the applicant in relation to the issue of the search of the house. It is not quite as clear that there is no basis at all in relation to the issue of not disclosing the nature of the "certain items" said to have been stored.

In relation to the implausibility of the LTTE getting prior knowledge of the search I can see no basis upon which that conclusion has been reached. Indeed, in the context of there being a search and given the applicant's residence was out of the town it seems that a contrary inference would be more evident in any event. However, that is only one part of the fact-finding process. If it were the only part then I would be prepared to find that there is no basis upon which that conclusion of implausibility in relation to that specific fact could be established and if it were critical and the determinative factor, that may provide a basis for jurisdictional error of a kind which would be permissible, having regard to the authorities to which I have referred earlier in this judgment.

The finding, however, about the lack of specific reference to weapons in the original application is not a finding that cannot be said to be without any basis. Whilst the court may be critical of the basis it ultimately could not be claimed that there is no basis at all. The real question, it seems to me, is whether or not it provides any or any proper basis for the conclusion. To make an adverse finding against an applicant is a legitimate and entirely appropriate process for the RRT. A finding of credibility, as McHugh J states in the decision to which I have referred, is a matter uniquely within the domain of the RRT through where further detail is elicited by questioning by the RRT of details which must necessarily arise from the disclosure in the application of, at the very least, an act of storing "certain items" for the LTTE, an adverse conclusion may more readily be drawn where there has been a total absence of any reference to an activity which might attract the attention of the authorities. In this case, a clear indication was given that there was at least an activity, that is, the storing of certain items on behalf of the LTTE which one would reasonably infer would attract the attention of the authorities. After all, had it not been for reference to the storage of certain items then presumably the RRT would not have asked the questions which it properly asked in seeking out further information from the applicant.

In the course of its inquisitorial process the RRT frequently asks questions to obtain further detail not always apparent in either application forms or supporting statements. It is difficult to determine in the present case whether there was any detailed interview by the delegate. There is a reference in the court book to material which would suggest some further material was obtained by the delegate, though this specific issue was not the subject of close questioning.'

In my view there does not appear to be any or any proper basis for the implausibility or incoherence conclusion reached by the RRT in relation to the lack of detail concerning the certain items. As to the locality of the applicant's house there is at least in that material some equivocation in the various versions before the tribunal itself as to why the authorities appear to have located or identified the applicant's house. It is clear that in the initial claim there is no indication that the authorities were then aware of the applicant's whereabouts, though she does refer to the police alleging that persons associated with the LTTE had been seen at her home and that she had been providing them with assistance.

Whilst the difference may not be so great it could not be said that there is not at least some evidence in relation to this issue to justify a finding of inconsistency. Slight though the evidence may be it does at least provide some basis upon which a conclusion is drawn. Hence it would seem that perhaps one of the three critical findings which were adverse to the applicant may properly be said to escape from being described as a sufficient basis upon which they could constitute jurisdictional error. Taken alone, however, it would be difficult for that finding of fact to provide any or any proper basis upon which the tribunal could reach its decision.

The RRT, however, made a further finding of fact which the respondent submitted in the circumstances should be a significant issue for this court to consider on judicial review. That finding appears in the following passage from the RRT decision:

"The Tribunal accepts that the situation in Vavuniya area was potentially dangerous in 1998 and that the applicant was generally fearful of the situation but it does not accept the applicant's account of the particular incidents she claimed had happened to her. The Tribunal also finds from the applicant's own account that she was able to leave Sri Lanka on her own passport without difficulty from the authorities there is no real chance that she is wanted by the Sri Lankan authorities".

After making that finding the RRT had also accepted that the applicant's brother-in-law disappeared in the early 1990s after being taken by the LTTE but did not accept that the disappearance puts the applicant under threat from the LTTE. The RRT further goes on to consider country information, particularly that information which provided it with the opportunity to draw the following conclusion:

"The Tribunal also finds that since the ceasefire and peace talks the security situation in Sri Lanka has improved considerably with the state of emergency lifted by the government. In current circumstances and the foreseeable future the Tribunal finds that while the applicant does not face a real chance of harm, her children also do not face a real chance of recruitment into the LTTE (or SLA)".

In my view despite the criticisms which are properly levelled at the fact-finding process of the RRT in relation to the storage of guns and the prior knowledge of the search of the applicant's house by the authorities there is ultimately a sufficient basis upon which the RRT could reach a decision reasonably open to it, including the finding in relation to the issue of the locality of her house, combined with the further finding in relation to the issue concerning the passport and other findings which then followed on in the RRT's reasoning, including the assessment and reliance upon country information. In the circumstances the ultimate conclusion reached by the RRT is not one where there is sufficient jurisdictional error to cause this court to intervene. It follows therefore in the circumstances that the application should be dismissed with costs.'

8 On 31 March 2005 the appellantfiled in this Court a notice of appeal from the judgment of the Federal Magistrates Court of 15 March 2005. The grounds set out in that notice of appeal are: '2. The Federal Magistrate erred in failing to find jurisdictional error in the Refugee Review Tribunal's (RRT's) finding of implausibility in relation to the LTTE having prior knowledge of the search of the Appellant's house.

3. The Federal Magistrate erred in failing to find jurisdictional error in the RRT's finding of lack of coherence in the Appellant's claim relating to items stored at her house.

4. The Federal Magistrate should have found that both of these findings did not have the necessary evidentiary basis and as a consequence the decision of the RRT was without jurisdiction.

5. The Federal Magistrate erred in finding that the errors in the fact finding process of the RRT did not amount to a failure to exercise jurisdiction and/or that other findings in the decision overcame the decision's shortcomings.

6. The Federal Magistrate should have found that the Refugee Review Tribunal made an error going to jurisdiction or failed to exercise jurisdiction.'

Parties' Submissions 9 In the appellant's written submission, the grounds of appeal were formulated slightly differently to include an additional claim that the Federal Magistrate had erred in failing to identify jurisdictional error in the Tribunal's finding of implausibility and incoherence in relation to her account of the authorities' knowledge of the location of her house. 10 The appellant submitted that the Federal Magistrate had erred in failing to impute jurisdictional error to the Tribunal in finding that the appellant's claim relating to items stored at her house lacked coherence. It was also contended that there was no factual basis for the Tribunal's findings that the applicant's answers as to the assistance she had rendered the LTTE lacked clarity, that her account of the authorities' knowledge of the location of her house was incoherent and her assertion that the LTTE had prior knowledge of the Sri Lankan army's intention to search her home. In the appellant's submission, the answers which she had given at the Tribunal hearing were merely a development of her initial claims. 11 Counsel for the appellant referred to [26] of the Federal Magistrate's reasons set out at [7] above where his Honour held that there was no basis upon which the Tribunal could have concluded that it was implausible that the LTTE had prior knowledge of the search and that there were similar problems with the Tribunal's reasoning (at [29]-[30] also reproduced at [7] above) as to the authorities' awareness of the location of the appellant's house. The appellant acknowledged, however, that the Federal Magistrate had found that there was a basis for the Tribunal's findings in relation to the storage of items. 12 In the appellant's submission, but for the unwarranted rejection of the claims about the LTTE's prior knowledge of the search and the authorities awareness of the location of her house, the Tribunal would have been required to consider whether, in the context of her past experience, the appellant would face a real chance of persecution were she now to return to Sri Lanka. It was submitted that the Tribunal would have had to consider her future safety given that she had stored certain items on behalf of the LTTE and had come to the attention of the authorities who had located and searched her house. 13 It was further contended that by basing its decision on matters such as the lack of difficulty the appellant encountered in leaving Sri Lanka and the changes to the country as a result of the ceasefire, the Tribunal had erred. That was an error which the learned Federal Magistrate had failed to identify when he held that there was "ultimately a sufficient basis upon which the RRT could reach a decision reasonably open to it"; (see [33] of the reasons below reproduced at [7] above). In support of this argument, the appellant relied on SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 231, W70/2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1159 and W148/00 v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 to each of which the Federal Magistrate had referred in his reasons for decision. There was also reliance upon another decision of a Full Court of this Court in SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 in support of the submission that the Tribunal had committed a jurisdictional error. Finally, it was contended that if it be found that jurisdictional error had occurred, it would be inappropriate in the present circumstances for the Court's discretion to be exercised by denying the relief sought by the appellant. The first respondent's submissions 14 Ms Riley of Counsel for the Minister submitted that the appellant was seeking to challenge the Tribunal's findings of fact which are not reviewable, except in limited circumstances, as the merits of a matter are for the Tribunal to determine. She referred in this context to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. As well, it was pointed out on behalf of the Minister that the learned Federal Magistrate had accepted at [29] of his decision (see [7] above) that it had been open to the Tribunal to find, as it did, that the appellant's account of how the authorities' came to know of the location of her house was incoherent. 15 In the Minister's submission the assessment of whether something is plausible is the function par excellence of the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 at [67]. It was submitted that such an assessment is based on the Tribunal's understanding of the ways of the world for which the Court should not substitute its own views. 16 W148/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703 which had been relied on by the appellant, was said by Counsel for the Minister to have been decided under the statutory regime which existed before the introduction of the privative clause in s 474 of the Act and did not assist in identifying jurisdictional error. Moreover, according to the Minister, Tamberlin and RD Nicholson JJ considered in W148/00A at [69] that, in isolation, some of the matters identified by the Tribunal would not have warranted a conclusion that the appellant's evidence should not be accepted. It was submitted, however, that their Honours had regarded the cumulative weight of the matters relied on by the Tribunal as sufficient to justify its conclusion. Similarly, in the present case, that the Tribunal's findings about the alleged storage of weapons were said to have been clearly justified by the material before the Tribunal. In any event, the fundamental principle remained that enunciated in Eshetu, that the merits are for the Tribunal to determine, not the Court. 17 Counsel for the Minister pointed also to the Tribunal's finding that, as the appellant had been able to leave Sri Lanka on her own passport, there was no real chance that she was wanted by the Sri Lankan authorities. It was submitted, as well, that the Tribunal had found, as a separate matter, that the ceasefire in Sri Lanka meant that the appellant did not face any real chance of harm. These matters, according to the Minister, provide support for the Tribunal's decision independently of the findings of fact which have been challenged by the appellant. 18 In the Minister's submission, therefore, the appeal should be dismissed with costs. Resolution of Issues 19 The learned Federal Magistrate found that there was no basis upon which the Tribunal could have reached certain of its conclusions. In particular, he found that there was no basis for the Tribunal's conclusions that the appellant's account of the assistance she had rendered the LTTE and that her responses in relation to the items stored at her house lacked clarity and that her assertion that the LTTE had prior knowledge of the Sri Lankan army's intention to search her home was without factual basis. 20 However, his Honour dismissed the application because he considered that Tribunal's ultimate conclusion was justified having been independently based upon certain other factors, including the implausibility of the appellant's evidence of the authorities' knowledge of the location of her house, the lack of difficulty experienced by her in leaving Sri Lanka on her own passport and the latest country information. 21 In Minister for Immigration and Multicultural Affairs v Eshetu (supra), Gleeson CJ and McHugh J, after identifying, at 627, the question as being "whether the Tribunal was satisfied that Mr Eshetu's fear of persecution was well-founded," continued, at 629; '… The Tribunal concentrated its attention on Mr Eshetu's explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held that fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear.' 22 That passage makes it clear, I consider, that it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as "unclear", "incoherent" or "implausible". That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion. As Gleeson CJ and McHugh J indicated, in the passage just quoted, different minds may form different views about issues which arise for determination on the way to resolving the ultimate question. The fact that a reviewing Court might disagree, even strongly, with a conclusion reached by the Tribunal on a question on the way to determining the ultimate question does not import jurisdictional error on the part of the Tribunal. 23 It is true that in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 231 a Full Court of this Court observed, at [19]; ' … If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was "Wednesbury" unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 ('S20') at 62, 67, 76, 90-91.' 24 However, by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error. This analysis is borne out by the passage from Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited by their Honours in the course of which Mason CJ pointed out, at 355; 'The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd(1934) 52 WN (NSW) 8, at p 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light(1940) 40 SR (NSW) 126, at pp 137-138; Hope v Bathurst City Council(1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd(1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v MaryboroughMining Warden (1975) 132 CLR 473, at pp 481, 483.' 25 His Honour then noted that there is "no error of law simply in making a wrong finding of fact" and continued, at 356; 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference -- in other words, the particular inference is reasonably open -- even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (original emphasis) 26 In the present case the impugned rejection by the Tribunal of certain of the appellant's assertions of fact about assistance rendered to the LTTE or the LTTE's knowledge of the Army's intention to search her home did not depend on any inference from other facts. It resulted merely from a failure to attain a state of satisfaction that the assistance had been rendered or that the LTTE had the prior knowledge imputed to it. The fact that the rejection may appear to a reviewing court to be illogical is not to the point. As the Full Court went on to observe, at [20] of the reasons in SFGB; 'On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a 'jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin(1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a 'bright line', but it is nevertheless an essential one:Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.' (emphasis added) 27 It follows that the impugned findings of fact, even if illogical or erroneous do not entail jurisdictional error in the sense in which that concept was explained by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001 206 CLR 323, where their Honours observed, at 351; '"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 cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. 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 Craig (1995) 184 CLR 163 at 179.' 28 It has been the failure of the appellant both at first instance and on appeal to identify an error of law by the Tribunal in that sense which compels the conclusion that her appeal must be dismissed. There will be an order that the appellant pay the Minister's costs of the appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Appellant: Wimal & Associates

Date of Hearing: 15 September 2005

Date of Judgment: 22 March 2006.