Sutharsan Kopalapillai v Minister for Immigration and Multicultural Affairs

C O R R I G E N D U M

In the Reasons for Judgment given by the Court - Justices O'Connor, Branson and Marshall on 8 September 1998:

* On the seventeenth (17^th) page, in the first sentence after the subheading "Sections 476(1)(b) and (c)" please delete the word "relevance" and substitute it with the word "reliance".

Dated: 14 September 1998

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from decision of judge of Court exercising jurisdiction of the Court to review a decision of the Refugee Review Tribunal ("RRT") - whether procedures required by the Migration Act 1958 or Migration Regulations to be observed were observed by the RRT - whether the approach of the RRT to its task of assessing the credibility of the story told by the appellant involved an error of law - whether the RRT failed properly to give consideration to whether the appellant held a well-founded fear of being persecuted for reasons of imputed political opinion by reason of his age and ethnicity

Migration Act (Cth) ss 31, 36, 420, 475, 476

Migration Regulations

Craig v South Australia (1995) 184 CLR 163, cited

Chan v Minister for Immigration and Ethnic Affairs (1989) 189 CLR 379, cited

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, considered

Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, cited

Abalos v Australian Postal Commission (1990) 171 CLR 167, cited

Devries v Australian National Railways Commission (1993) 177 CLR 472, cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Emiantor v The Minister for Immigration and Multicultural Affairs (Full Court of the Federal Court of Australia, Merkel J, unreported, 3 December 1997), cited

Emiantor v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, unreported, 20 July 1998), followed

Aguilera-Cota v Immigration and Naturalization Service 914 F.2d 1375 (1990); cited

Ramirez Rivas v Immigration and Naturalization Service 899 F.2d 864 (1990); cited

Diaz-Escobar v Immigration and Naturalization Service 782 F.2d 1488 (1986); cited

Arteaga v Immigration and Naturalization Service 836 F.2d 1227 (1988); cited

VG 747 of 1997

O'CONNOR, BRANSON AND MARSHALL JJ

MELBOURNE

8 SEPTEMBER 1998

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

NOTE: SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

REASONS FOR JUDGMENT

INTRODUCTION

This appeal is from a decision of a judge of this Court exercising the jurisdiction of the Court to review a decision of the Refugee Review Tribunal ("the RRT"). The applicant before the RRT, and before the primary judge ("the appellant"), is a Sri Lankan Tamil of the Hindu faith who claims that Australia has protection obligations to him under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Refugees Convention"). The RRT was not satisfied that Australia has protection obligations to the appellant under the Refugees Convention. The decision of the RRT was based principally on findings as to the credibility of the applicant. The primary judge declined to interfere with the findings of credit made by the RRT.

The principal submission of the appellant was that the RRT erred in its approach to the issue of the applicant's credibility.

Background Facts

The applicant is a 26 year old citizen of Sri Lanka. He is a Tamil of the Hindu faith from the Jaffna Peninsula.

The appellant arrived in Australia on 8 April 1997 from an international flight which landed at Melbourne airport. He was interviewed at the airport by an immigration inspector with the assistance of a telephone interpreter service. He was subsequently permitted to make an application for a protection visa.

The appellant informed the immigration inspector that he had departed from Colombo ten days earlier, making three stops enroute to Melbourne. He said that he had used his genuine Sri Lankan passport to leave Colombo. The report of the immigration inspector records the following:

"PAX [PASSENGER] WAS THEN QUESTIONED ABOUT HIS EXPERIENCES IN SRI LANKA AND TO PROVIDE REASONS WHY HE HAD FLED HIS COUNTRY OF ORIGIN.

...

PAX STUDIED AT TECHNICAL COLLEGE IN JAFFNA UNTIL 1995. HE CEASED STUDYING IN 1995 BECAUE THE SRI LANKAN ARMY ARRIVED IN JAFFNA. SINCE 1995 HE HAS BEEN MOVING FROM PLACE TO PLACE; HE MENTIONED CHAVACHERI, KILLINOCHI, ARRIVING IN COLOMBO 11/2 MONTHS AGO. HE HAS BEEN FLEEING THE ARMY, SEEKING FOOD AND REFUGE AT VARIOUS PLACES ALONG THE ROUTE. AS PAX WAS YOUNG, MALE AND TAMIL, HE WAS CONSTANTLY BEING ROUNDED UP BY THE SRI LANKAN ARMY FORCES, SUSPECTED OF BEING INVOLVED WITH TAMIL MILITANT GROUPS. PAX DENIED ANY ASSOCIATION WITH SUCH GROUPS.

WHEN ASKED TO BE SPECIFIC AND DETAIL ALL INCIDENTS OF PERSONAL ENCOUNTERS WITH ARMY MEMBERS, PAX RECOUNTED TWO SUCH INCIDENTS. THE FIRST HAPPENED IN CHAVACHERI IN EARLY 1996 WHERE HE WAS BEATEN AND DETAINED FOR 3 DAYS IN A GENERAL ROUND UP OF YOUNG TAMIL MALES. THE SECOND INCIDENT OCCURRED IN JAFFNA WHEN HE WAS WORKING IN A PHOTO STUDIO NAMED KSR PHOTOS IN KKS ROAD, JAFFNA. ON THIS OCCASION HE WAS TAKEN TO AN ARMY CAMP AND IDENTIFIED BY MASKED MEN AS BEING A TAMIL MILITANT AND WAS ONLY RELEASED A FEW DAYS LATER WHEN ASSURANCES WERE PROVIDED BY HIS EMPLOYER THAT HE DID NOT HAVE AN ASSOCIATION WITH THE TAMIL MILITANTS. THIS INCIDENT OCCURRED IN MAY 96."

In a statement attached to his application for a protection visa, the appellant indicated that for about four years he worked as a photographer. Initially his boss would send him to take photographs for the Liberation Tigers of Tamil Eelam ("the LTTE") but over time the LTTE asked him directly to assist them. Although he said that he had no choice other than to work for the LTTE, he said he was sympathetic to LTTE. The statement asserts:

"Every time there was a large LTTE function, funeral meeting, negotiations with other organisations, etc., I had to take photographs for the LTTE. I was issued with an LTTE identity card to allow me entry to the special events. The card had my name on it, photo, rank B (amateur cameraman), my date of birth, expiry date and the signature of a senior officer.

The public were under the impression that I worked for the LTTE because I photographed them. People suspected that I would be collecting money for the LTTE. I could not stop people suspecting me so I preferred to let them think as they wished. Many LTTE senior members were known to me because I met them at functions."

The statement also refers to an incident in April 1996 when the appellant was in Chavacheri. The army moved into the area and arrested Tamil youngsters from the streets. The appellant was picked up with two friends and taken, with other boys, to Mattuvil Amman Temple. He was held under arrest for three days. His mother and sister came every day to the temple and "the persistence and weeping" of his mother persuaded the guards to release him.

After referring to the above incident, the statement describes a second arrest incident as follows:

"Later in the same month, I was arrested again from my home by the army. I was taken to Narvil camp and beaten badly. The army had suffered heavy casualties and took revenge on the people. Myself and other people in the camp were beaten with a stick. ... My parents came to the camp and begged for my release. There were about 20 to 30 other boys in there with me. The army would not permit me to be released. They attempted to have other LTTE people point to me and connect me with the LTTE. My sister was working for the St Johns Bosco primary school. My sister begged the Sister of the school to have myself and another brother released. Eventually I was released. I was warned not to become involved with the Tigers again."

As to his departure from Colombo, the statement says:

"On 7^th April 1997 I left Colombo airport. When I first arrived in Australia I told the official that I left Sri Lanka on 29 March and that I stayed 10 days in a number of airports. This was not true. I flew directly to Melbourne from Colombo".

The statement indicates that he was advised by a man who arranged his travel to say that he did not travel directly to Melbourne from Colombo so that officials would not be able to trace his route. The statement further indicates that the man who organised his travel gave him a passport which had his photograph on it but the name "Mohamed Farook Mohamed Naseek".

The Refugee Advice and Casework Service (Vic) Inc made a written submission to the delegate of the Minister in support of the appellant's claim for a protection visa. Such submission contains the following paragraph:

"Prior to fleeing Jaffna, the applicant worked as a photographer where he was forced by his employer to work for the LTTE. The applicant was required to make videos and take photographs of LTTE meetings for LTTE propaganda. To access such events, the applicant was issued with a special LTTE identity card. Owing to his activities, the applicant was `labelled' as an LTTE worker. After being displaced from his home, the applicant was detained and mistreated twice by the Sri Lankan army. When the applicant attempted to flee from the north, into government-controlled areas, he was detained for 8 days and released upon the payment of a bribe by his uncle".

Before the RRT the appellant gave evidence that he was a person with LTTE links who had videoed and photographed very important LTTE events, including negotiations between the government and the LTTE. He said that when videoing the negotiations between the government and the LTTE, he would himself have been videoed by those recording the occasion for the government. He indicated that he was in charge of editing and producing videos for the LTTE. When reminded that at his airport interview he had said that he had had nothing to do with the LTTE, he indicated that "the agent" had told him to say particular things.

The appellant denied in his evidence before the RRT that he had said during his airport interview that he had travelled from Sri Lanka with his own passport.

Reasoning of the Refugee Review Tribunal

In its written reason for decision the RRT observed:

"The Applicant initially stated that he had no affiliation with the LTTE. He later submitted that he was a photographer who recorded some special LTTE events for the studio at which he worked. At the hearing, he indicated that he was an avid and known supporter of the Tamil Tigers over a period of several years, collected money for that group, made photographic and video recordings of LTTE special events, including meetings between LTTE leaders, and was also involved in editing video recordings to the satisfaction of those leaders. One reason for not mentioning an association with the LTTE at the airport was that he believed that he would be immediately returned to Sri Lanka as a terrorist. Another was that he made claims that his agent told him to make. The Tribunal finds those explanations to be far-fetched.

...

While it is understandable that the Applicant may have been nervous at the airport, that is no reason to hide information that he was a supporter of the LTTE aims for a separate state of Tamil Eelam, a photographer and video cameraman who recorded gatherings of LTTE leaders and members between 1990 and 1995, that these things were known to local people and the authorities and that he believed he would be harmed as a consequence. The information is integral to his claims and is now claimed to be the very reason for fleeing his country. It is the explanation for his flight from the peninsula and the necessity to obtain false departure documentation. The Applicant impressed the Tribunal as an educated, sophisticated person whose father is a successful businessman and whose uncle is a senior bureaucrat. When he was approached at Melbourne airport, he immediately stated that he was a Sri Lankan seeking refugee status and mentioned that he had twice been detained. The Tribunal does not accept that he would then fail to divulge the core reasons for his detentions and flight.

Nor does the Tribunal accept that the Applicant would abandon his genuine reasons for seeking asylum in favour of following an agent's instructions. On his own evidence, the reason he utilised an agent in Colombo was because he was afraid that an application for a passport would lead to his detection as a wanted person. He now claims that he followed that person's advice about what to say (or not say) on arrival in Australia, although he also claims that some of what he stated at the airport was genuine. The Tribunal finds that later claims about links with the LTTE were made after the Applicant had an opportunity to discover that his initial claims may not have been sufficient to lead to recognition as a refugee. It concludes that the subsequent claims were not hidden because he was told not to disclose them by an agent, but were contrived or embellished for the purpose of shoring up a refugee claim he believed was weak".

The RRT went on to note various discrepancies in the accounts given by the appellant as to the circumstances attending his detention by the Sri Lankan army. The RRT found that the second claim of detention and mistreatment was contrived, and that his early release on the first occasion was strong evidence that he was not suspected of being an active LTTE supporter. It further found that he had extrapolated limited photographic work in 1994 and 1995 into the past in order to suggest that he had close links with the LTTE. The RRT concluded that the appellant left Colombo using his own passport and that he later surrendered the passport to the agent who arranged his passage to Australia. The RRT found that the Sri Lankan authorities would not have issued a passport to the appellant if he were a known supporter and active assistant of the LTTE. It concluded that the appellant is not wanted by the security forces in Sri Lanka.

The RRT gave consideration to whether the appellant faces persecution if required to return to Sri Lanka because he is a young Tamil male. It noted that he had lived in Jaffna all of his life without being persecuted, and that the only time that he encountered difficulty with the security forces was in 1996 when the Sri Lankan security forces took over an area previously controlled by the LTTE. It further noted that on that occasion the appellant was questioned and released unharmed after three days. The RRT required that there was evidence that some round-ups of young men in Jaffna were still occurring and that some disappearances resulted from those operations. It noted, however, that the appellant had been detained and released previously in a situation in which the security forces were particularly seeking LTTE activists, and that he had successfully negotiated a range of security procedures in Sri Lanka on his way to Australia. It concluded that "his fears of persecution for a Convention reason are not well founded".

Reasons of the Primary Judge

Merkel J observed that a substantial part of the appellant's case related to the RRT's findings against him on credit. He referred to comments that he had made in Emiantor v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Merkel J, unreported, 3 December 1997):

"The approach of the RRT to the credibility issues was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility. In these circumstances I do not accept the contentions of the applicants that the RRT erred in law in relation to these findings or that the findings were open to challenge on any other reviewable ground. That conclusion is important to the outcome of the review as it must follow that the findings of RRT as to the past events relied upon to support the claims for refugee status must be accepted as the starting point for the application of the `real chance' test." (at 22)

His Honour concluded that precisely the same observations could be made as to the RRT's approach to the credibility issues in the present case. He rejected the submission that the RRT did not rationally consider the material before it or failed to bring an open mind to the assessment of the appellant's case. He also rejected a contention that there was "no evidence" to support the findings of the RRT, and a contention that the RRT had failed to apply the test from Chan v Minister for Immigration and Ethnic Affairs (1989) 189 CLR 379 correctly.

Contentions on Appeal

The contentions of the appellant fell into two classes. First it was argued that the primary judge erred in concluding that the RRT did not make an error of law in adopting the approach which it did to the assessment of the credibility of the applicant. This aspect of the appellant's case on appeal was outlined in the following paragraphs of the appellant's written submissions:

"16. The proper construction and application of the refugee criteria in the Act involves both substantive and procedural considerations The test must be properly understood, and must be administered and applied properly. These two aspects cannot be sensibly separated.

17. The main contention of the appellant in the present case is that the RRT erred in its approach to the issue of the applicant's credibility. The case raises, in the context of the obligations and mechanisms described above, a question of principle as to the proper approach to be adopted in relation to this issue.

...

19. The law recognises, however, that special considerations apply in certain cases in which issues of credibility arise. ... It has frequently been stated in the academic learning that refugee cases involve such special considerations. ... The appellant submits that the RRT in the instant case and other cases like it has not taken sufficient account of these considerations and has thereby adopted an improper approach to the fulfilment of its function and role under the Act and Regulations and Australia's obligations under the Refugees Convention.

20. A decision maker who adopts an incorrect approach to the issue of credibility will have failed to ask the right question or misunderstood his or her proper function when administering the Refugees Convention and thereby will have erred in law, failed properly to exercise their jurisdiction and misconstrued and misapplied the Convention ... .

...

25. The task of deciding whether particular claims are credible must never be allowed to become a substitute for the true test in the Refugees Convention. The approach of the RRT in the instant and other cases is to treat "credibility" as a test in, and of, itself. This approach fundamentally distorts the function of the RRT under the Act". (citations omitted)

Second, the appellant argued that the primary judge erred in upholding the finding of the RRT that the appellant does not have a well-founded fear of being persecuted by reason of imputed political opinion arising from his being a young Tamil male in Sri Lanka.

STATUTORY BACKGROUND

The class of visa to which the applicant claims to be entitled is that provided for by s 36 of the Migration Act 1958 (Cth) ("the Act"). Section 36 is in the following terms:

"36. (1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

Australia has protection obligations to the applicant under the Refugees Convention if he is a person who:

"... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country". (Art 1A(2) of the Refugees Convention)

Section 31 of the Act authorises the making of regulations which prescribe criteria for a visa or visas of a specified class, including protection visas. Clause 866.221 of Schedule 2 of the Migration Regulations ("clause 866.221") provides that a criteria to be satisfied by the applicant for a protection visa is that at the time of the decision on his or her application:

"The Minister was satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."

The decision of the RRT is a decision reviewable by the Federal Court (s 475 of the Act). Section 476 of the Act prescribes the grounds upon which an application for review may be brought in the Federal Court. It is in the following terms:

"476. (1) Subject to subsection (2) application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or regulations to be observed in connection with the making of the decision were not observed;

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision.

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power

(f) an exercise of discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

CREDIBILITY ISSUES

Section 476(1)(a)

Section 476(1)(a) of the Act is concerned with procedures required by the Act or the Regulations to be observed. The majority of the Full Federal Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 took the view that s 420 of the Act describes procedures with which the Refugee Review Tribunal is required by the Act to comply (per Davies J at p 303 and per Burchett J at p 317). Although the High Court has granted special leave to the respondent to appeal the decision in Eshetu's case to the High Court, we consider that it is appropriate for us to follow the decision. No application was made for the hearing of this appeal to be adjourned pending a decision of the High Court in Eshetu's case.

Section 420 of the Act provides as follows:

"420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case."

Davies J observed in Eshetu's case at p 304 that one of the elements of acting "according to substantial justice and the merits of the case" is -

"the provision of procedures which are fair and just and are directed to ensuring that the application can be decided according to its substantial justice and merits".

When asked to identify the matter of procedure concerning which the appellant made complaint under s 420 of the Act, Mr Bell QC, senior counsel for appellant responded:

"The matter of procedure was the manner in which the tribunal approached its task of assessing ... credibility ..."

Counsel for the appellant submitted that the primary judge failed to adopt a proper approach with respect to the identification of the amount of deference to be paid to a finding on credit made by the RRT. They drew attention to the purpose intended to be served by the Refugees Convention, namely the positive purpose of ensuring that those persons who fall within the terms of the convention can obtain refuge. Counsel submitted that it was important that a decision maker adopt a positive stance towards the Refugees Convention and towards the fulfilment of Australia's obligations thereunder, and avoid any assumption that applicants for protection visas are untruthful.

Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the applicant an onus of establishing that he was truthful, or even a procedure based on the assumption that the purpose of the hearing before it was to discover whether the applicant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s 420 of the Act. As Foster J observed in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194:

"It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected."

However, for the reasons given below, we agree with the approach taken by the primary judge to the criticisms made by the appellant of the RRT's approach to issues of credibility.

The role of the RRT was to determine whether, on the totality of the evidence and other material available to it, it was satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention (s 415 of the Act and clause 866.221). It may be that the submissions of the appellant amount to a contention that the criterion for a protection visa prescribed by clause 866.221 should be understood, not as a criterion requiring satisfaction in the decision maker that the applicant is a person to whom Australia has protection obligations under the Refugees Convention, but rather, as a criterion designed to eliminate from consideration for the grant of a protection visa a person whom the RRT is satisfied on the evidence and other material before it is not a person to whom Australia has protection obligations. To the extent that the appellant did advance such a contention, it must be rejected as being contrary to the plain meaning of s 31 of the Act and clause 866.221: the criterion prescribed by clause 866.221 is a positive and not a negative criterion.

Section 476(1)(e)

The appellant submitted that the approach of the RRT to its task of assessing the credibility of the story told by the appellant also involved an error of law within the meaning of s 476(1)(e) of the Act. In Eshetu's case at pp 304-305, Davies J expressed the view, which we consider it appropriate to follow, that the "applicable law" for the purposes of s 476(1)(e)-

"will include not only criteria specified in the Act and Migration Regulations but also the substantive elements of the s 420(2)(b) requirement that the Refugee Review Tribunal act in accordance with the substantial justice and merits of the case."

(See also Burchett J at p 317).

The appellant accepted that the determination of the credibility of a witness in legal or administrative proceedings may be an important part of the role of the trier of fact in any given case. However, he contended that decisions of the High Court such as Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472 are distinguishable in the context of judicial review of decisions of administrative bodies such as the RRT. Such authorities, it was argued, are to be applied only where a decision on credit has been made: -

(a)  by a court constituted by judges with years of legal training and security of tenure;

(b)  where pleadings have identified the issues for decision so that witnesses are on notice of the relevant issues;

(c)  in a context in which legal representation is the norm so that the impartiality of the judge is not infringed by his or her involvement in the process of obtaining evidence from a witness;

(d)  in a context in which careful attention is paid to the formal qualifications of any interpreter, and to the quality of the interpreting service provided by him or her; and

(e)  following a hearing open to public scrutiny.

Counsel for the appellant observed that the RRT is different from a court of law in each of the above regards. Moreover, the appellant submitted that refugee cases involve special considerations so far as credibility is concerned. Reference was made in the submissions of the appellant to the views expressed by Professor Hathaway in "The Law of Refugee Status" (1991, Butterworths) at pp 84-86 as referred to by the primary judge, and also to Taylor, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions" (1994) 13 University of Tasmania Law Review 43 and Kneebone, "The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role?" (1998) 5 Australian Journal of Administrative Law 78.

We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the knowledge and experience of members of the RRT may be expected to ensure that they are sensitive to these special considerations. The specialist nature of the experience of members of the RRT was recognised by Kirby J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 394.

The passage from Hathaway cited by the primary judge is as follows:

"First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the [Immigration Appeal] Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with the testimony given at the hearing is thus highly suspect, and should be constrained in the contextually sensitive manner discussed previously in Chapter 2.

Second, it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant's testimony. A claimant's credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution. Because an understandable anxiety affects most claimants compelled to recount painful facts in a formal and foreign environment, only significant concerns about the plausibility of allegations of direct relevance to the claim should be considered sufficient to counter the presumption that the sworn testimony of the applicant is to be accepted as true. As stated in Francisco Edulfo Valverde Cerna [Immigration Appeal Board Decision, 7 March 1988]:

The Board does not expect an applicant for Convention refugee status to have a photographic memory for details of events and dates that happened a long time ago, but it is reasonable to expect that important events that happened as a consequence of other events should be found to have taken place in some consistent and logical order.

Ultimately, however, even clear evidence of a lack of candour does not necessarily negate a claimant's need for protection:

Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. `Lies do not prove the converse.' Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility." (footnotes omitted)

His Honour described the cautions of Professor Hathaway as sound and sensible advice to, and guidelines for, decision makers. We join with him in reiterating the wisdom of that advice in the context of decision making by the RRT.

Did the RRT in the present case fail to comply with the substantive elements of the requirement s 420(2)(b) that it act in accordance with the substantial justice and merits of the case by failing, as the appellant contended, to take sufficient account of the special considerations affecting refugee cases so far as assessments of credibility are concerned? In answering this question it is important for us to bear in mind that it is not open to the appellant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 - 36:

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

Moreover, for present purposes, the crucial criterion for the grant to the appellant of a protection visa was that the Minister, or on review the RRT, is "satisfied" that the appellant is a person to whom Australia has protection obligations under the Refugee Convention. A decision as to "satisfaction" is not immune from review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). However, it is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision maker, and not the satisfaction of a judge or a court, the determinant of eligibility for the grant of a protection visa. That is, it is part of the test of eligibility that such satisfaction be entertained by a decision maker who may not be legally trained, does not enjoy security of tenure, will not ordinarily conduct a public hearing and may involve himself or herself in the process of obtaining and elucidating evidence. Incidentally, we wish to make it plain that we do not consider that any, or all, of the above features is or are inimical to fair and just factual determinations. A number of highly regarded fact finding bodies and tribunals in this country share some or all of the above features.

Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43). Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo's case at p 191, to a requirement for a "positive state of disbelief" was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist.

The primary judge, in giving consideration to the appellant's submission that the RRT adopted a legally flawed approach to the assessment of his credibility, repeated observations earlier made by him in Emiantor v The Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Merkel J, unreported, 3 December 1997). His Honour expressed the view that the same observations could be made as to the RRT's approach to the credibility issues in the present case.

The Full Court of the Federal Court has expressed agreement with his Honour's treatment of the credibility submissions in Emiantor's case and found no error in his approach (Emiantor v The Minister for Immigration and Multicultural Affairs, Full Court of the Federal Court of Australia, unreported, 20 July 1998). We similarly express agreement with his Honour's conclusions in the present case that the RRT made no error of law in reaching its conclusion on the credibility of the applicant. We also agree with the primary judge that the RRT made no error of law in the use which it made of those conclusions. That is, we agree with his Honour that the RRT did not fail correctly to apply the test from Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in determining whether the appellant had a well-founded fear of being persecuted for a convention reason. We reject the submission that the approach of the RRT to the task of assessing the credibility of the story told by the appellant involved an error of law within the meaning of s 476(1)(e) of the Act. We note that the United States decisions to which we were taken in argument are of limited, if any, relevance in the context of s 476 of the Act, being based on a quite different regime of judicial review where the Court has general and wide powers than are not available to this Court under the relevant legislation. The US powers were described by Counsel for the appellant as "de novo legal review" - allowing judicial review of factual findings. See Aguilera-Cota v Immigration and Naturalization Service 914 F.2d 1375 (1990); Ramirez Rivas v Immigration and Naturalization Service 899 F.2d 864 (1990); Diaz-Escobar v Immigration and Naturalization Service 782 F.2d 1488 (1986); Arteaga v Immigration and Naturalization Service 836 F.2d 1227 (1988).

Sections 476(1)(b) and (c)

The relevance placed by the appellant on these grounds of review is based upon his submission that the RRT lacks jurisdiction to reach a decision otherwise than in accordance with the law (Anisminic Ltd v Foreign Compensation Commission [1969] AC 147 per Lord Reid at p 171; considered in Craig v South Australia (1995) 184 CLR 163 at 178-179). The error of law on which relevance was placed was that referred to above. That is, the allegedly erroneous approach of the RRT to its task of assessing the credibility of the appellant. As we are not satisfied that the RRT acted in this regard otherwise than in accordance with the law, it is not necessary for us to consider further these grounds of review.

IMPUTED POLITICAL OPINION

The appellant contended that the RRT failed properly to give consideration to whether the appellant held a well-founded fear of being persecuted for reasons of imputed political opinion by reason of his age and ethnicity.

The RRT gave consideration to the appellant's claim in this regard in the following passages form its reasons for decision:

"The question still remains as to whether or not the Applicant faces persecution because he is a Tamil. It is submitted that he is particularly at risk because he is a young Tamil male, has no connections in Colombo and cannot speak Sinhala. The Tribunal doubts that he has no connections in Colombo. His father is a successful trader and his uncle is a senior government official who was able to accompany the Applicant to Colombo and put him in contact with an agent. Previously, his brother had a bus company that operated between Jaffna and Colombo. In any event, the Applicant was able to travel from the Jaffna peninsula to Colombo previously without being persecuted for any Convention reason. He used his own identity card and, apart from a delay caused by usual security checking in Vavuniya, he did not encounter any problems. He has lived in Jaffna all of his life without being persecuted and the only time he has encountered difficulty with the security forces was in 1996 when the SLSF took over an area previously controlled by the LTTE. However, the Applicant was questioned and released unharmed after three days. He has a family that still lives in Jaffna and the information available to the Tribunal indicates that the situation in Jaffna has resumed some normalcy, despite the deprivations that attend the ongoing battle between the LTTE and the SLSF.

...

There is evidence that there are still some round ups of young men occurring in Jaffna, and some disappearances flowing from those operations, while there is a much more intense battle continuing to the east, in Trincomalee and Batticaloa, where the LTTE has greater numbers since it fled Jaffna. The Applicant has been detained and released previously in a situation where the SLSF was specifically seeking LTTE activists. He has negotiated security procedures in Vavuniya, at the passport office and at the airport, where the authorities also actively seek to identify LTTE activists. He has his well-known father and his influential and connected uncle to assist him in Jaffna if necessary. His past history of encountering security checks leads to the conclusion that there is no more than a remote chance such checks will result in serious harm. While there continue to be shortages of medicine and some food supplies and there are regular curfews in Jaffna, those deprivations are the consequence of a situation that pertains to the general population, regardless of the reasons in the Convention and, while the Tribunal is sympathetic to the Applicant's desire not to return to such a situation, it does not alter the conclusion that his fears of persecution for a Convention reason are not well-founded. There is not a real chance that he faces serious harm because of an association with the LTTE or for any other real or imputed political opinion. Nor is there a real chance he faces persecution on account of his race or for any other Convention reason."

In our view the above passages disclose that the RRT did give proper consideration to the question of whether the appellant had a well-founded fear of being persecuted for reasons of imputed political opinion. The findings which it made were open to it on the evidence and other material before it and are not open to challenge on any of the grounds prescribed by s 476 of the Act.

The order of the Court is that appeal is dismissed with costs.