Case: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10
Outcome: cited
The satisfaction or otherwise of whether the appellant is a person to whom Australia owes protection obligations on the ground of a contended well-founded fear of persecution for a Convention reason might be determined by the Tribunal in the purported exercise of the statutory review function in a way that reveals a failure to reach findings supported by any evidence or reveals findings based on inferences drawn by the Tribunal from facts that do not support those findings, as a matter of law. Such a determination might be characterised as irrational, illogical, arbitrary, capricious or made according to humour or private opinion rather than by reference to a reason or justice. Such a decision is unreasonable. However, for present purposes, I use each of these terms to describe a decision of the Tribunal based on findings unsupported by any evidence or based upon findings thought to be supported by inferences drawn from primary facts where those inferences are not open as a matter of law. Decisions made by the Tribunal in such circumstances are not made in the performance of the duty imposed on the Tribunal by the Act and thus involve jurisdictional error. Such decisions do not simply reflect insufficiency or inadequacy of evidence but rather an absence of any foundation in fact for the state of satisfaction or otherwise of the Minister or decision-maker. As to the role of independent country information, the Full Court of this Court per Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 , said this at [11]: [11] ... There can be no objection in principle to the Tribunal relying on "country information". The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to "guidance", as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law or a jurisdictional error for the Tribunal to base a decision on "country information" that is not true. The question of the accuracy of the "country information" is one for the Tribunal not for the Court. If the Court were to make its own assessment of the truth of "country information" it would be engaging in merits review. The Court does not have power to do that. 16 In analysing in NAHI the extent to which the Tribunal relied upon country information in reaching its decision and the relationship between findings on credit and the use of country information, the Tribunal said this at [12]: [12] The appellants' submissions asserted that the Tribunal rejected all of the appellant's claims on the basis of "country information". The Tribunal's reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent probability of some aspects of the first appellant's story, inconsistencies between different parts of his story and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant's credibility in determining whether it accepted some of the "country information". ... The very function of the Tribunal was to assess the appellants' claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants' country of origin. [emphasis added] 17 The central matter therefore is to assess whether there was material before the Tribunal upon which it was entitled to rely as a result of the process it undertook in weighing the merits of the appellant's claims. 18 The appellant arrived in Australia in August 2004 and lodged an application for a protection visa on 16 August 2004 supported by a six page handwritten statement of those matters said to demonstrate a well-founded fear of persecution for a Convention reason. The application document contains a short answer to question 40, "Why did you leave [India]?" to which the appellant said: I had political and commercial problems in India. If I go back to India the police and local political people try to kill me.