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Federal Court of Australia |
Last Updated: 24 November 1999
Muthukuda v Minister for Immigration & Multicultural Affairs
CREEDA IRENE MUTHUKUDA & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 468 of 1998
WEINBERG J
1 NOVEMBER 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
VG 468 OF 1998 |
BETWEEN: |
CREEDA IRENE MUTHUKUDA First Applicant MEVAN RAJENDA ABEYARAMA Second Applicant |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent |
JUDGE: |
WEINBERG J |
DATE OF ORDER: |
1 NOVEMBER 1999 |
WHERE MADE: |
MELBOURNE |
Amendment to the Reasons for Judgment of Weinberg J delivered on 1 November 1999.
Catchwords page "Migrations Regulations 1994 (Cth) Sch 2" should read "Migration Regulations 1994 (Cth) Sch 2".
Associate to Justice Weinberg
11 November 1999
Muthukuda v Minister for Immigration & Multicultural Affairs
CREEDA IRENE MUTHUKUDA & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 468 of 1998
WEINBERG J
1 NOVEMBER 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
VG 468 OF 1998 |
BETWEEN: |
CREEDA IRENE MUTHUKUDA First Applicant MEVAN RAJENDA ABEYARAMA Second Applicant |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent |
JUDGE: |
WEINBERG J |
DATE OF ORDER: |
1 NOVEMBER 1999 |
WHERE MADE: |
MELBOURNE |
Amendment to the Reasons for Judgment of Weinberg J delivered on 1 November 1999.
Catchwords page "Migrations Regulations 1994 (Cth) Sch 2" should read "Migration Regulations 1994 (Cth) Sch 2".
Associate to Justice Weinberg
11 November 1999
Muthukuda v Minister for Immigration & Multicultural Affairs
MIGRATION - refugees - appeal from decision of RRT refusing application for refugee status - fact finding by RRT - so-called "what if I am wrong?" test an aspect of determining whether an applicant has a well-founded fear of persecution - whether RRT rejected applicants' allegations of having been threatened - whether RRT engaged in requisite process of speculation as to likelihood of future persecution - whether RRT's reasons adequate.
WORDS AND PHRASES - "what if I am wrong?".
Migration Act 1958 (Cth) ss 430, 476(1)(a) and (e)
Migrations Regulations 1994 (Cth) Sch 2
Eshetu v Minister for Immigration and Ethnic Affairs [1999] HCA 21; (1999) 162 ALR 577 referred to
Abebe v The Commonwealth [1999] HCA 14; (1999) 162 ALR 1 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291-3 referred to
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Saliba v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 247 referred to
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 referred to
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414 referred to
Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719 at pars 46-50, 60-67 applied
Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 160 ALR 24 at 27 referred to
CREEDA IRENE MUTHUKUDA & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 468 of 1998
WEINBERG J
1 NOVEMBER 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
The application for review, as amended, be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
BETWEEN: |
CREEDA IRENE MUTHUKUDA First Applicant MEVAN RAJENDA ABEYARAMA Second Applicant |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent |
JUDGE: |
WEINBERG J |
DATE: |
1 NOVEMBER 1999 |
PLACE: |
MELBOURNE |
1 There is before the Court an application by Mrs Creeda Irene Muthukuda ("the first applicant") and her son Mr Mevan Rajenda Abeyarama ("the second applicant") for judicial review of a decision made by the Refugee Review Tribunal ("the RRT"). The decision was that the applicants not be granted protection visas. The application is brought pursuant to Part 8 of the Migration Act 1958 (Cth) ("the Act").
2 The criteria which are prescribed for the grant of a protection visa are those under s 36 of the Act, and those in Pt 866 of Schd 2 to the Migration Regulations 1994. To obtain such a visa an applicant must be a person to whom Australia owes protection obligations under the 1950 Convention Relating to the Status of Refugees ("the Convention"), as amended by the 1967 Protocol.
3 Article 1A(2) of the Convention relevantly provides that Australia has protection obligations to any 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 ..."
The background to the applicants' claim to refugee status
4 The applicants are Sri Lankan nationals of Sinhalese extraction. They arrived in Australia on 11 August 1996. The first applicant is 55 years old and a widow. The second applicant, her son, is 22 years old. On 14 August 1996, the first applicant lodged an Application for a Protection Visa ("the application") with the Department of Immigration and Ethnic Affairs. Initially, both of the first applicant's sons were included in her application but, upon the advice of a case officer of the renamed Department of Immigration and Multicultural Affairs ("the Department"), her elder son submitted a separate application.
5 The first applicant set out her claims in the application, in a statutory declaration made on 11 November 1996 and in an interview with the Minister's delegate on 26 November 1996. On 13 August 1997, the delegate refused to grant protection visas to the applicants.
6 On 26 August 1997 the first applicant applied to the RRT for review of the delegate's decision. On 7 May 1998 she lodged a submission with the RRT outlining her concerns about the delegate's decision. The RRT, constituted by Mr Kissane, held a hearing on 19 May 1998 at which the first applicant gave evidence. On 28 July 1998 the applicants' solicitors lodged written submissions for the consideration of the RRT. On 27 August 1998 the RRT affirmed the delegate's decision and published its reasons. By application for an order of review dated 21 September 1998, and an amended application dated 4 December 1998, the applicants applied to the Court to have the RRT's decision set aside.
7 The first applicant claimed that her husband, a supporter of the JVP (People's Liberation Front), was abducted from his work in September 1989 and has not been seen since. It is presumed that he was killed by his abductors; a Death Certificate has since been issued. The first applicant claimed that her husband had been a JVP "sympathiser and activist" and that he was a "financial supporter and campaigner for the Party". She claimed that over several years her husband had come to the attention of the United National Party ("the UNP") and that he had been arrested in 1971 and 1987. The first applicant claimed that in 1988 the JVP became very active and there was much political unrest in Sri Lanka. She claimed that he was very open about his support for the JVP and very critical of the government. He had predicted that the JVP would soon come to power.
8 The first applicant claimed that in 1990, about nine months after her husband's abduction, two people came to her house and told her that she should not look for her husband or complain about the people she suspected of abducting him. They said that if she did not stop doing so then she "would face disaster".
9 The UNP President was killed in 1993 and subsequently a new government came to power. The first applicant met the new President, who told her that a Presidential Commission would be established to investigate the cases of those who had "disappeared" under the old regime.
10 On 3 March 1995 the Presidential Commission requested the first applicant to give evidence before it. On 17 March 1995 she gave evidence to the Commission including the names and details and whereabouts of people she suspected of having been involved in the abduction of her husband. One of the suspects she named was a serving police officer. The first applicant claimed that all of the people she named were subsequently asked to appear at the Commission. She claimed that, "(a)nybody else who could give that information is too scared to do so. They know it was me and that is why I am so frightened that my life and the life of my sons is in danger."
11 The first applicant claimed that on 20 April 1995 two people she did not know came to her house and threatened her when she was alone. She claimed that those people told her that "if things go too far I will have to face serious repercussions because I have divulged the names and the whereabouts of people suspected of being involved in the abduction." She claimed that they told her not to report their coming to the house to the police, and that they told her that the same thing that happened to her husband would happen to her and her children. Following this incident, she was very scared and stopped her eldest son from working as she believed he would not be safe in public.
12 She sold a property in October 1995 and sent her younger son to Russia. After six months he returned to Sri Lanka. In January 1996 her eldest son came to Australia. The first applicant said that she sent her sons abroad "primarily to ensure their safety".
13 The first applicant claimed that she was threatened at her home on 1 April 1996 by the same people who threatened her on 20 April 1995. On 24 May 1996 she wrote to the Presidential Commission detailing what she described as the death threats, and requesting protection. On 19 June 1996 she went to the Police Station and reported the threats made against her. She said that the police knew of her husband's case and told her that they could not give her individual protection. They advised her to look to her relatives for protection or go to another country.
14 In August 1996 the first and second applicants left Sri Lanka and travelled to Australia. The first applicant claimed that she had been advised by letter by the person living in her house in Sri Lanka that after she left Sri Lanka two men came to the house and asked after her whereabouts. The first applicant said that she telephoned the person living in her house after receiving that letter, and that the person told her over the telephone that "men had come and been standing at the gate to the house for a long time".
15 The first applicant claimed that if she were forced to return to Sri Lanka, her life and the lives of her sons would be in danger from the people she had named at the Commission and from associates of those people. She claimed that she and her sons were ostracised and isolated in Sri Lanka because of her husband's activities with the JVP. She claimed that in 1971 when a government of the same party as the present government was in power they had massacred JVP supporters and that if there were to be another JVP insurgency her family would be at risk of persecution by the government.
The RRT's findings and reasons
16 The RRT accepted the first applicant's claim that her husband had disappeared in 1989 and that she had given evidence relating to his disappearance to the Presidential Commission in 1995. The RRT accepted that in 1990 the first applicant was threatened not to pursue her husband's abductors. The RRT noted that there was "no suggestion that such threats were repeated in the ensuing years, until the presidential commission was established."
17 The RRT described the claims of the first applicant that she had been threatened in relation to giving evidence to the Presidential Commission as "more problematic". At pages 6-7 of its reasons for decision, the RRT stated:
"The applicant claims to have been threatened twice since then, once a month after she gave evidence and again a year later. The Tribunal considers it strange that such threats would be made after the applicant gave evidence and then around a year apart. If the desire was to place pressure on her not to give evidence to the Commission of Inquiry, then such threats have been directed at her too late. Her explanation for this is that the Commission was investigating her husbands [sic] death in April 1996. However there was no suggestion that she could further help the Commission and so it seems strange to threaten her at this stage. One can envisage a situation where threats are made to someone about to give evidence. However making threats to someone one month and then one year after the event does not seem credible to the Tribunal. The applicant then arrived in Australia in August 1996, which is four months after the alleged last threat. The fact that the applicant was able to live in Sri Lanka for the next four months indicates to the Tribunal that there was no prospect of her coming to serious harm as a result of any threats that were made. The applicant does claim that men came looking for her after her arrival in Australia and produces a letter from a relative to this effect. However in the Tribunal's view if someone really did want to harm the applicant there was ample opportunity and the Tribunal does not find it credible that thugs came looking for her after her departure to Australia."
18 The RRT referred to the evidence of the first applicant that after the initial threat in 1990 the family went into hiding at her sister's house. It found that this evidence was not consistent with the first applicant's initial application for a protection visa in which she stated that she had lived at an address from 1980 to her departure from Sri Lanka. It went on to say that in any event, living with her sister did not amount to being in hiding.
19 The RRT referred to a cable from the Department of Foreign Affairs and Trade dated 16 May 1997 (Cable CL610) which stated in part:
"The three presidential commissions of inquiry into disappearances were originally due to close on 30 June 1996. After several extensions they finished hearings on 30 April and will submit the final reports to the President by 31 May.We are surprised that people claim to have received death threats in relation to the inquiries into disappearances. These inquiries were fact-finding inquiries. The recording of evidence was designed to establish that a missing person was in fact dead, which has two primary objectives: to enable the family to finally accept the loss and to grieve, and to activate the issue of a death certificate, thereby enabling relatives to go forward with other arrangements, such as receiving compensation, obtaining inheritance and remarrying.
We have spoken to one of the commissioners, as well as lawyers involved in the commissions to clarify the situation of threats to the safety of witnesses. All concur that many witness [sic] felt afraid to give evidence in the early stages of the commissions and so the commissioners agreed in some cases to hear evidence in camera. However, we understand that some witnesses were afraid by virtue of the fact that they were testifying that police or soldiers (some of who [sic] they could identify) had taken people away, rather than as a result of threats actually received. Our contacts had not heard of a single case of any of the tens of thousands of witnesses who came before these inquiries being attacked.
The authorities are able to protect witnesses to presidential commissions of inquiry.
Amongst those cases where the identities of the alleged perpetrators are known, many of them are still in the police or armed forces."
20 The RRT noted that the DFAT cable was not consistent with a statutory declaration provided by a Mr Bopage, who gave evidence supporting the first applicant's case. The RRT stated:
"Mr Bopage claims that several people have informed a United Nations delegation of such threats whereas DFAT has not heard of a single case where a witness before the Commission was attacked. When the DFAT advice is considered together with the applicant's remaining in Sri Lanka for four months after the last alleged threat the Tribunal is satisfied that there is no real chance that the applicant will face any further problems as a result of such Commissions of inquiry if she returns to Sri Lanka."
21 The RRT stated that "even if such threats were made they do not bring the [first] applicant within the Convention." The RRT rejected the first applicant's contentions that the threats made against her related to her political opinion, actual or imputed, and to her membership of a particular social group. The RRT held that the threats, if they occurred, related to the first applicant's knowledge of those involved in the death of her husband, and her willingness to participate in the Presidential Commission; the threats, if made, related to what happened to her husband and not to his political opinion.
22 The RRT stated (at p 8):
"[e]ven if the people that the applicant blames for her husband's death were aligned with the former UNP government, this does not mean that the applicant's evidence has anything to do with her political opinion...In this case the actions of the applicant can be characterised as the actions of someone seeking justice as a result of the death of her husband. They do not relate to her political opinion."
23 The RRT found that the first applicant did not fear persecution because of her membership of a particular social group. The Tribunal considered whether she belonged to a particular social group comprising "those of JVP background and sympathies, who have pursued justice and appeared before the Commission." The RRT held that there was no evidence that those who gave evidence to a Presidential Commission would be a particular social group within Sri Lanka. The RRT rejected the first applicant's contention on three bases: first, the "group" alleged to exist was not "identifiable as a social unit" or "a cognisable group within [the] society"; secondly, the characteristic or element which unites the group cannot be a common fear of persecution - the group "must not be defined by the persecution"; and thirdly, there must be a causative link between the membership or perceived membership of a social group and the fear of persecution. The RRT found (at p 9) that the first applicant's contentions concerning her membership of a particular social group failed on all three of those bases:
"The Tribunal is not satisfied that those who have given evidence before a Presidential Commission are identifiable as a social unit. In addition if there is someone who has been threatening the applicant the Tribunal considers that this could only be about the applicant's specific evidence and not because she is perceived to be a member of a group who his [sic] jointly condemned for giving evidence. In other words any threats would be for reasons of what the applicant has done or is believed to be able to do, not because she is jointly condemned. As a result the Tribunal finds that any fear the applicant has is not related to her membership of any particular social group."
24 Having decided that the first applicant did not have a well-founded fear of persecution for a Convention reason, the RRT considered her evidence relating to the failure by Sri Lankan government authorities to protect her from those who, she claimed, had threatened her. The RRT considered the first applicant's evidence that she had complained to the Commission on 24 May 1996 (sometimes erroneously referred to as 25 April 1996) and also that she had complained to the police. While accepting that the first applicant may not have received an adequate response to those complaints, the RRT stated (at p 10):
"It is not suggested that Sri Lanka does not have a fully functioning police force. In such circumstances the Tribunal also does not accept that the applicant would lack the protection of the state. The Commission she has been involved in is a presidential commission. Even if some of the people who she claims to have named are or were police officers, this does not mean she would not get the protection of the police. The Tribunal accepts the advice of DFAT above that the authorities are able to provide the applicant with protection from any threat of violence as a result of any involvement in a presidential Commission."
25 The RRT also did not accept that the JVP would again be involved in a violent campaign or that the first applicant would be considered a supporter of the JVP. It considered material provided by DFAT, as well as newspaper clippings provided on behalf of the first applicant, and concluded that there was little chance of the JVP being involved in a violent campaign as it had been in 1988-9. Moreover, even if the JVP were to be involved in such a campaign, "there is not a real chance of the applicant being at risk because of her husband's previous involvement in the JVP."
26 The RRT considered that the first applicant suffered from psychological problems stemming from the death of her husband, and that it was understandable that she did not wish to return to Sri Lanka. However, it found that her problems did not bring her within the ambit of the Convention. The RRT therefore found that neither she nor her son had made good their claim to refugee status.
The applicants' contentions
27 The applicants' amended application for review dated 7 December 1998 contained three grounds, but grounds two and three were abandoned by counsel for the applicants, Mr Appudurai, at the commencement of the hearing before me. These grounds, which pertained to an alleged failure by the RRT to act in accordance with the substantial justice and merits of the case, were discarded in light of the decision of the High Court in Eshetu v Minister for Immigration and Ethnic Affairs [1999] HCA 21; (1999) 162 ALR 577.
28 The remaining ground on which the applicants sought to have the decision of the RRT set aside was ground one. It was set out in the amended application for review as follows:
"The decision involved an error of law, within s476(1)(e) of the Migration Act 1958 ("the Act"), in that the RRT incorrectly interpreted, and applied, the applicable law.
Particulars The RRT incorrectly interpreted, and applied, the test of "well-founded fear" of persecution in that, in the particular circumstances of the first applicant's case:
(a) it failed to identify the nature and characteristics of the `subjective fear' claimed by the first applicant, prior to embarking upon an assessment of the objective foundation for such fear;
(b) it misconstrued, and misapplied, the proper scope and meaning of the term `persecution';
(c) it misconstrued, and misapplied, the proper scope and meaning of the Convention ground of `(imputed) political opinion';
(d) it misconstrued, and misapplied, the proper scope and meaning of the Convention ground of `membership of a particular social group';
(e) it misconstrued, and misapplied, the proper approach to the assessment of the claims made by the first applicant as to what had already happened;
(f) it failed to engage in the requisite speculation critical to the proper assessment of the first applicant's case as to the objective foundation of her claimed fear of persecution."
29 Mr Appudurai also sought leave at the commencement of the hearing to add a new ground of appeal, based on ss 476(1)(a) and (e) of the Act, that the RRT failed to comply with s 430 of the Act by reason of its failure to give adequate reasons. More particularly, his submission was that the RRT failed to set out in its reasons for decision its findings on material questions of fact and failed to refer to evidence or any other material on which those findings of fact were based. He submitted that the matters to which he would refer in support of the new ground would be covered under ground one of the amended application in any event, and that the respondent would not, therefore, be prejudiced by the late addition of the new ground.
30 I allowed Mr Appudurai to present argument on the proposed second ground and reserved my decision on the question of whether the amendment would be allowed. I will return to this matter later.
31 Mr Appudurai referred to the applicants' written contentions filed on 15 February 1999 and noted that, just as he had had to abandon two grounds of appeal in light of the High Court's decision in Eshetu, the High Court's decision in Abebe v The Commonwealth [1999] HCA 14; (1999) 162 ALR 1 required him to depart from those written contentions in making his submissions. In particular, he submitted that, in the light of Abebe, he would not be asking the Court to review any of the RRT's findings of fact.
32 The crux of the applicants' submissions was that in dealing with the first applicant's claims to have a well-founded fear of being persecuted, the RRT had not decided that the threats alleged by her did not occur. Therefore, the RRT was bound to consider whether the threats were made for a Convention related reason on the assumption that the threats did occur as alleged. This course was required, it was submitted, by the "what if I am wrong?" test set out by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 -3. Kirby J in Wu's case at 293 said:
"...the decision maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: "What if I am wrong?". Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight", the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution."
33 Mr Appudurai submitted that the approach taken by the majority of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 was not inconsistent with Kirby J's approach and that the references in Guo to the strength of a tribunal's findings and a tribunal's apparent confidence in its conclusions could not be taken as referring only to the "tenor of the expression" (Applicants' Submissions page 10) used by the RRT. Rather, in determining whether a tribunal should consider whether its findings "might be wrong", Mr Appudurai submitted that the Court must also consider the reasons and bases upon which any such "confident" conclusions had been made.
34 Having accepted that the first applicant received threats not to pursue her husband's abductors in 1990, the RRT stated that the first applicant's claims to have been threatened after giving evidence to the Presidential Commission, in April 1995 and 1996, did not "seem credible to the Tribunal". The RRT also described the first applicant's claims of having been threatened after she gave evidence to the Presidential Commission as "problematic" and "strange".
35 Mr Appudurai relied on the fact that the RRT did not in terms state that it disbelieved the first applicant or that it did not accept that the threats she alleged had in fact been made. He submitted that it was within the role of a reviewing court to undertake an assessment as to whether the "what if I am wrong?" test should have been applied. Where the RRT had purported to apply the test, a reviewing court was also entitled to consider whether the test had been applied properly.
36 In addition, Mr Appudurai submitted that in going on to consider whether the threats, if made, were made for a Convention related reason, the RRT made errors of law by failing to construe properly the Convention categories of persecution motivated by political opinion and membership of a particular social group.
37 It was submitted that the RRT had failed to recognise that although the first applicant's motivation in giving evidence to the Presidential Commission was to find out what had happened to her husband, the important inquiry for the purposes of the Convention test was whether her "would-be persecutors" imputed to her a political opinion, whether held by her or not, which motivated them to threaten her. It was submitted that the RRT had not considered the question of imputed political opinion correctly, although it did identify imputed political opinions as being relevant. In deciding that the threats, if made, were made by reason of the first applicant's status as a potential witness in a criminal prosecution of her persecutors, the RRT had failed to consider the broader political context in which the Presidential Commission had functioned, and the fact that the motivations of the would-be persecutors were, to some degree, political.
38 Mr Appudurai submitted that the RRT had misconstrued and misapplied the proper scope and meaning of the Convention ground - "particular social group". He submitted that the RRT was incorrect when it characterised that social group to which the first applicant claimed to belong as being "those of JVP background and sympathies who have pursued justice and appeared before the commission". The submission put to the RRT was that the linking characteristics of the group were:
"i the JVP background of the victims' widows and relatives (and the JVP sympathies ascribed to them);* their common pursuit of answers and justice;
* their appearances before the Commissions, (commonly to either name UNP-aligned perpetrators or to suggest such an explanation for the disappearance of their loved one);"
39 Mr Appudurai submitted that the RRT had not addressed the characterisation submitted to it, that a social group as defined in the applicants' submission to the RRT did exist in Sri Lankan society; that the group was not defined by reference to the persecution suffered by its members; and that the persecution feared by the first applicant was motivated by her membership of that social group.
40 Finally, the applicants submitted that the RRT had improperly assumed that state protection had been available to the applicants and would be available in the event of their return to Sri Lanka. In failing to assess the effectiveness of state protection in the circumstances of the applicants' case, the RRT failed to engage in the speculation which was required by the "what if I am wrong?" test and which was critical to a proper assessment of the objective foundation for the first applicant's claimed fear of persecution.
41 The RRT's focus on past events, based upon its flawed assessment of what had already happened, its restricted view of the scope of the Presidential Commission and its reliance upon the presumption of state protection resulted, according to the applicants, in an incorrect application of the "well-founded fear" test in so far as that test required the RRT to consider what might happen in the future.
The respondent's contentions
42 Counsel for the respondent, Mr Mosley, contended that the RRT in making its findings of fact had been satisfied that the threats alleged to have been made in 1995 and 1996 had not in fact been made. In so submitting, Mr Mosley referred to the High Court decision of Wu Shan Liang (supra) and the warning contained therein against "over-zealous judicial review", "seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed".
43 In response to the applicants' contentions regarding the "what if I am wrong?" test, the respondent in his written submissions contended that the RRT's approach in assessing what had happened to the first applicant in the past disclosed no error. The RRT's function was to make findings as to past events and then to use those findings as a basis for speculation as to the likelihood of future persecution. It was submitted that the RRT had discharged its function correctly, and that the circumstances of the applicants' case did not require the RRT to engage in a reconsideration of its findings about the alleged threats or about state protection.
44 It was submitted, in reliance on the decision in Guo's case, that the "what if I am wrong?" approach to fact finding is relevant only to a situation where the RRT finds that it is only "slightly more probable than not" that particular events either occurred, or did not occur.
45 Following on from these written submissions, Mr Mosley submitted before me that as the RRT had been satisfied that the April 1995 and April 1996 threats did not occur, it was not obliged to go further and make any determination as to whether such threats, if made, could have constituted Convention related persecution. He submitted that the RRT's findings in relation to the alleged 1995 and 1996 threats (supposedly made after the first applicant gave evidence to the Presidential Commission) indicated a sufficient level of satisfaction on its part as to render it unnecessary to consider whether it was wrong about its views:
"...making threats to someone one month and then one year after the event does not seem credible to the Tribunal."
Similarly, he submitted that in relation to the allegation that thugs had come looking for the first applicant in Sri Lanka after her departure, the RRT's statement that it did "not find it credible that thugs came looking for her after her departure to Australia" indicated a sufficient degree of confidence on its part such that it was not required to embark upon the speculation required by the "what if I am wrong?" test.
46 Mr Mosley submitted that the mere fact that the RRT had gone on to consider what the first applicant's position would have been if it had found that the threats were made, did not indicate that the tribunal was lacking in confidence in its finding that those threats had not been made. It was his submission also that the only threats which could have given rise to a well founded fear of persecution were those alleged to have been made to the first applicant on 20 April 1995 and 1 April 1996, because the earlier threat which the RRT accepted had been made in 1990 was simply too old, and could not form the basis of a well founded fear of future persecution.
47 Mr Mosley then made submissions in response to the applicants' submissions on the application of the Convention categories concerning political opinion and membership of a particular social group. He submitted that the RRT's findings in relation to political opinion were findings of fact and not open to review. Those findings - that any threats made related to the first applicant's knowledge of those involved in her husband's death, or to her willingness to give evidence to the Presidential Commission - were based on the facts as determined by the RRT. The RRT had not fallen into the error identified in Saliba v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 247 of failing to consider what political opinion might have been attributed to the first applicant by her would-be persecutors.
48 Mr Mosley submitted that the RRT had properly decided the question of whether the first applicant belonged to a particular social group. He supported the RRT's finding that the description of persons put forward by the applicants did not constitute a cognisable group in Sri Lankan society and that, in any event, any persecution of the first applicant did not occur by reason of her membership of a particular social group, but rather because she was giving evidence about persons who, she believed, had been involved in the disappearance of her husband. He referred to the decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 in support of his contention that there was no causative link between the first applicant's membership of any particular group and the persecution she alleged she would suffer if returned to Sri Lanka.
49 Mr Mosley rejected the applicants' claim that the RRT had erroneously presumed that state protection was available to the applicants. He referred to evidentiary material from the DFAT upon which the RRT relied in concluding that state protection, while not guaranteed, was available at the level required by the Convention. He referred in particular to the RRT's conclusion that there was little prospect of the JVP being involved in a violent campaign such as it had been in 1988-9.
50 On the s 430 point, the question of whether the RRT's reasons for decision were inadequate, Mr Mosley referred to the decision of the Full Court of this Court in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 in which it was said that it was not appropriate, in reviewing the decision of a tribunal, to engage in "a minute examination of reasons `with an eye keenly attuned to the perception of error'". He submitted that the RRT had dealt properly with the relevant issues before it as required by s 430.
Conclusion
51 The main issue in dispute between the parties in this case is whether on the RRT's construction of the facts, this Court can review alleged errors of law in the application of the tests for persecution on the grounds of political opinion and membership of a particular social group.
52 Whether this Court is able to look beyond the RRT's findings of fact concerning the threats which the first applicant alleges were made against her is said to depend on the application of the "what if I am wrong?" test.
53 This test was discussed recently in the Full Court decision of Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719. The judgment of Sackville J, with whom North J agreed, set out the origins of the test. Sackville J at pars 46 - 47 considered Kirby J's judgment in Wu Shan Liang (supra) and in particular the passage quoted above. Sackville J noted that in Wu Shan Liang, the allegations of fact made by the applicant for refugee status related to the treatment of other persons who were returned to China after being denied refugee status in Australia. That is, Kirby J's judgment, which set out the requirement that a decision-maker must consider that possibility that his or her findings were wrong so as not to foreclose "reasonable speculation" upon the chance of persecution occurring in the future, did not specifically address a situation in which an individual's claims about his or her own experience were disbelieved or doubted.
54 At pars 48 - 50, Sackville J stated:
"In Thanh Phat Ma v Billings (1996) 71 FCR 431, Drummond J expressed the view (at 436) that all Kirby J was concerned to explain was that`unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.'
On this analysis, Kirby J was directing attention to a case where the decision-maker finds that none of a series of claims is established, yet the evidence taken as a whole justifies or might justify the conclusion that the applicant has a well-founded fear of persecution. In theory, such a case can readily be imagined. An applicant might rely, for example, on three separate acts of persecution directed at her by reason of imputed political opinion. Each act of persecution, if it had occurred, would strongly suggest that she is at serious risk of a further act of persecution for the same reason. In theory (although it is difficult to imagine in practice), each of the factual allegations might be entirely independent of the others. The decision-maker might assess the probability of each alleged act of persecution having occurred as, say, 0.4 (two chances in five). While the probability of any given act of alleged persecution having occurred is less than 0.5, the probability of any one of the three alleged acts having occurred is 0.784 (nearly eight chances in ten). (The example is derived from Mr Justice D H Hodgson, `The Scales of Justice: Probability and Proof in Legal Fact-Finding' (1995) 69 ALJ 731, at 746 - 747. The formula is 1-(0.6)3) Even if the probability of each alleged act of persecution having occurred is a mere 0.1 (one in ten), the probability of any one of the three alleged acts having occurred is 0.271 (1-(0.9)3).
With respect, Drummond J's observations are helpful because they identify a second class of case in which, although the decision-maker finds that alleged past events have not occurred, the chance that they might have occurred could provide a rational foundation for finding that the applicant has a well-founded fear of persecution. A practical difficulty is that factual assertions made by applicants for refugee status concerning their own experiences can rarely be assessed independently of each other. The findings will usually depend on the decision-maker's assessment of the reliability of the applicant's account and of other factors common to all claims. It may therefore not be easy for the RRT to identify those cases where the findings cannot be made with sufficient confidence to foreclose reasonable speculation."
55 At pars 60 -67 Sackville J summarised the principles which underpin the "what if I am wrong?" test:
"It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a `real substantial basis' for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring....
Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a `real substantial basis' for the applicant's claimed fear of persecution...
Although the `What if I am wrong?' terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a `well-founded fear of being persecuted' for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute `an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found'.
...
In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had `no real doubt' (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A `fair reading' of the reasons incorporates the principle that the RRT's reasons should receive a `beneficial construction' and should not be `construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (FC), at 287."
56 In the case before me, I am satisfied that the RRT decided that the threats alleged to have been made to the first applicant in 1995 and 1996 did not occur. Although the RRT used language such as "does not seem credible", "strange" and "problematic" in circumstances where it might have been preferable for it to have been less guarded, I think it is clear when these observations are seen in context, and the reasons are viewed as a whole, that the RRT simply did not accept that those threats had been made. In other words, it rejected the account given by the first applicant.
57 In any event, the RRT went on to engage in the requisite process of speculation as to the likelihood of the first applicant's being persecuted in the future. At page eight of its reasons the RRT stated:
"When the DFAT advice is considered together with the applicant's remaining in Sri Lanka for four months after the last alleged threat the Tribunal is satisfied that there is no real chance that the applicant will face any further problems as a result of such Commissions of inquiry if she returns to Sri Lanka."
58 The RRT was not then required to revisit its findings of fact as to past events and the likelihood of future persecution. As Sackville J stated in Rajalingham at par 67:
"Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued."
59 The factual assertions rejected by the RRT did not relate to independent events outside of the first applicant's own experience. The fact that the RRT did not accept a particular allegation made by her was inextricably linked to its view as to her credit. In addition, this was not a case in which the threats alleged by the first applicant formed part of a wider factual matrix from which conclusions about the chance of her being persecuted could be drawn. On the facts before the RRT, once her allegations about having been threatened were rejected, there was nothing upon which the RRT could base a finding as to the likelihood of future persecution.
60 As I have accepted that the RRT disbelieved the first applicant's factual claims, it is not necessary to consider whether it made any errors of law in purporting to apply the Convention categories of persecution by reason of political opinion or membership of a particular social group.
61 However, there remains the question of whether the RRT failed to comply with s 430 of the Act and thus made an error of law reviewable by this Court. Section 430(1) provides:
"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based."
62 Mr Mosley referred to the decision of the Full Court in Muralidharan v Minister for Immigration and Ethnic Affairs (supra) and to the Full Court decision of Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 160 ALR 24. In Muralidharan, Sackville J (with whom Davies and Beazley JJ agreed) considered the application of s 166E of the Migration Act, a precursor to the current s 430. At 414, his Honour stated:
"Legislation such as s 166E(1) of the Migration Act does not require the Tribunal to prepare lengthy reasons dealing with every aspect of the evidence. What is required is that the Tribunal set out in `short and measured, but specific terms its findings in connection with' matters relevant to its decision ... it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. The standard required is not one of perfection and regard must be had to the composition of the Tribunal, which does not necessarily include trained lawyers: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 per Sheppard J."
63 In Paramananthan (supra), Wilcox J explained the obligation imposed upon the RRT by s 430 at 27:
"I accept the submission of counsel for the minister that this section does not impose on the tribunal an obligation to make findings about every factual matter mentioned in an applicant's claim. Paragraph (c) of subs (1) refers to `findings on any material questions of fact'. Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the tribunal does make should not be construed in an over-critical way, `with an eye keenly attuned to the perception of error' ...On the other hand it is important that a reader be able to discern what conclusions the tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the tribunal rejected a significant factual claim, the tribunal must say so and indicate the factual material on which the adverse finding was based."
64 In my view it is clear that the RRT set out in its reasons the fact that it did not believe that the first applicant had been threatened as she alleged. Having made that finding, and having adequately expressed its reasons for that finding, the RRT complied with its obligations under s 430, irrespective of whether or not I agree with either the finding or the reasons. I would grant leave to the applicants to include this ground of review in their application, but I reject the ground.
65 Accordingly, the application for review, as amended, is dismissed with costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. |
Associate:
Dated: 1 November 1999
Counsel for the Applicant: |
Mr R Appudurai |
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Solicitor for the Applicant: |
Ambi Associates |
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Counsel for the Respondent: |
Mr W Mosley |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
21 June 1999 |
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Date of Judgment: |
1 November 1999 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/1999/1499.html