Mataka, Usaia v Minister for Immigration & Ethnic Affairs & Anor [1996] FCA 392

CATCHWORDS

IMMIGRATION - Refugees - "well-founded fear of being persecuted for reasons of ... political opinion" - "real chance" test of Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 - whether Refugee Review Tribunal had misapplied "real chance" test - whether failure to take into account possibilities and matters as to which speculation required - whether Tribunal had failed to take into account possible events in reasonably foreseeable future - rejection and ceasing to take further account of certain possibilities.

Migration Act 1958 s 476

Migration Regulations, regs 866.21, 866.22

Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration, Local Government and Ethnic Affairs v Mok Jek Bouy (1994) 55 FCR 375 (FC)

Wu Shan Liang v Minister for Immigration, Local Government and Ethnic Affairs (1995) 57 FCR 432 (FC)

Guo Wei Rong v Minister for Immigration, Local Government and Ethnic Affairs (1996) 135 ALR 421 (FCA/FC)

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 (FCA/Deane J)

Federal Commissioner of Taxation v Cainero 88 ATC 4427 (FCA/Foster J)

USAIA MATAKA v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR

No NG 729 of 1995

Lindgren J

Sydney

24 May 1996

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No NG 729 of 1995

GENERAL DIVISION )

On appeal from the Refugee Review Tribunal

BETWEEN:

USAIA MATAKA

Applicant

AND:

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

MS CAROLYN HUNTSMAN, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM: Lindgren J

PLACE: Sydney

DATE: 24 May 1996

MINUTE OF ORDERS

THE COURT ORDERS:

1. THAT the decision of the second respondent dated 17 August 1995 in proceeding No N94/06614 in the records of the second respondent, be set aside.

2. THAT the matter to which the decision of the second respondent referred to in order 1 above relates be referred to the second respondent for further consideration and for determination in accordance with law.

3. THAT the first respondent pay the applicant's costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No NG 729 of 1995

GENERAL DIVISION )

On appeal from the Refugee Review Tribunal

BETWEEN:

USAIA MATAKA

Applicant

AND:

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

MS CAROLYN HUNTSMAN, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM: Lindgren J

PLACE: Sydney

DATE: 24 May 1996

REASONS FOR JUDGMENT

INTRODUCTION AND NATURE OF PROCEEDINGS

The applicant applies pursuant to s 476 of the Migration Act 1958 ("the Act") for review by the Court of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal was constituted by the second respondent who filed a submitting appearance and has played no part in the proceeding.

The decision was made on 17 August 1995 and was conveyed in a letter to the applicant of that date. The Tribunal found that the applicant was not a refugee and affirmed a decision on 2 November 1994 of a delegate of the first respondent ("the Minister") refusing to grant to the applicant, and to his wife and child who were included in his application, a "protection
visa". The "protection visa" was introduced by s 36 of the Act which came into force on 1 September 1994. The criteria for the grant of a protection visa are contained in sub-s 36 (2) of the Act and Part 866 of Schedule 2 to the Migration Regulations ("the Regulations").

INTRODUCTION TO BACKGROUND FACTS

The applicant is a national of Fiji, of indigenous Fijian racial background. He and his wife arrived in Australia on 13 February 1988. On arrival they were issued with temporary entry permits valid to 25 March 1988. They have remained in Australia. A son was born to them here on 4 November 1990.

Shortly, the applicant's case is that he has a well founded fear of being persecuted in Fiji by reason of his political opinion and that owing to such fear he is unwilling to avail himself of the protection of that country. Again, shortly, his political opinion was expressed when he lived in Fiji, and if he were to return to Fiji would again be expressed, as active support for the Fiji Labour Party and for equal and democratic treatment of Fijians of Indian racial background.

LEGISLATIVE FRAMEWORK

Section 36 of the Act is as follows:

"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."

The Act defines "Refugees Convention" to mean "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and the "Refugees Protocol" to mean "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". These expressions are used with the same meanings in "SUBCLASS 866 - PROTECTION (RESIDENCE)" in Schedule 2 to the Regulations. It is necessary only to note clauses 866.211, 866.221 and 866.222 which are as follows:

"866.21 Criteria to be satisfied at time of application

866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

(a) makes specific claims under the Refugees Convention; or

(b) claims to be a member of the family unit of a person who:

(i) has made specific claims under the Refugees Convention; and

(ii)is an applicant for a Protection (Class AZ) visa.

866.22 Criteria to be satisfied at time of decision

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

866.222 In the case of an applicant referred to in paragraph 866.211 (b):

(a) the Minister is satisfied that the
applicant is a member of the family unit of a person who has made specific claims under the Refugees Convention; and

(b) the person of whose family unit the applicant is a member has been granted a Protection (Residence) visa."

As a party to the Refugees Convention and the Refugees Protocol, Australia has protection obligations to persons who are refugees as defined in the Convention. Article 1A (2) of the Convention, as amended, defines a refugee as follows:

"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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

The expression "well-founded fear of being persecuted" and its constituent elements were considered by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan's case"). That case is authority for the proposition that the "fear" must be genuine and that to be "well-founded" it must be founded on a "real chance" of persecution (at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J), 429 (McHugh J)). Mason CJ also referred to "a substantial as distinct from a remote chance" (at 389), Dawson J referred to a chance "that is not remote, regardless of whether it is
less or more than 50 per cent" (at 398), and McHugh J distinguished a "far-fetched possibility" (at 429).

The notion of "persecution" or "being persecuted" is not defined in the Refugees Convention or the Refugees Protocol. It is made plain, however, that the fear must be "of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." Those reasons are conveniently referred to as "Convention reasons". In Chan's case, Mason CJ said this:

" ... the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subject to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason." (at 388)

McHugh J said this:

"The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be ‘persecuted’ because he or she is a member of a group which is the subject of systematic harassment: ... Nor is it a necessary element of ‘persecution’ that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is ‘being persecuted’ for the purposes of the Convention. The threat need not be the product of any policy of the government of the
person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution ... " (at 429-430 - authorities omitted):

The time as at which the existence of the elements constituting refugee status is determined is the time when the determination is made, and so, inter alia, all relevant facts down to that time are to be taken into account in the determination of whether an applicant's fear is well founded: Chan's case at 386-387 (Mason CJ), 398-399 (Dawson J), 405-406 (Toohey J) and 429 (McHugh J).

BACKGROUND FACTS IN MORE DETAIL

The applicant was born on 1 April 1960 in Fiji as an indigenous Fijian. He graduated from secondary school with a secondary school certificate and obtained a diploma of accountancy as a full-time student from 1982 to 1985 from the Fiji Institute of Technology. From January 1986, he lived and worked as a farm hand on his family's sugar cane farm in Sabeto Village, Nandi. Importantly, during this period he lived near many people of Indian racial background and was on friendly terms with them. Apparently many of his Indian friends worked in the sugar cane fields. The applicant believes that Fijians of Indian racial background should be treated as equals with those of Fijian racial background.

In 1986 he joined the Fiji Labour Party ("FLP"), a few months after that party was formed. His father was secretary of the Sabeto branch of the FLP of which the applicant was also a member and an active organiser.

In April 1987 the late Dr Timoci Bavadra, then leader of the FLP, was elected Prime Minister of Fiji in the general election.

In May 1987 there occurred in Fiji a military coup led by Colonel Rambuka by means of which he and his supporters seized power ("the first coup" - it seems to have been common ground that there was a second coup some four or five months later also led by Colonel Rambuka by which power was taken from some whom he had installed, although this was not referred to in the Tribunal's Reasons for Decision). Prior to the first coup, the applicant was publicly and noticeably active in promoting the cause of the FLP.

Shortly after the first coup, the applicant helped organise an anti-coup rally which took place at Nandi Airport on 23 May 1987. He was physically attacked, kicked and beaten by supporters of the Alliance Party. He received no protection from soldiers present who, in fact, joined in and struck the applicant with their guns. The applicant said that he was caused to suffer internal bleeding and injuries to his head and body as a result. He also said that he was detained by soldiers and interrogated, assaulted and called an "Indian lover" by them. He said that he managed to run away while the soldiers were talking among themselves.

After the first coup, the applicant lived, sometimes away from his home, sometimes in hiding sheltered by friends on the FLP Committee and by Indian friends, and sometimes at home but keeping a low profile and moving about freely only at night.

In July 1987 the applicant's family's sugar cane farm was burnt. The field of sugar cane was also destroyed by fire on two other occasions in 1988 after the applicant left Fiji (see later). Cane that was ready to be harvested was destroyed. Neither the applicant nor any member of his family saw who lit any of the fires.

From October to December 1987 the applicant and other FLP members organised meetings in villages so that FLP leaders could speak to the people.

At the end of 1987 the applicant married his present wife at a registry in Fiji.

On 13 February 1988 they left Fiji and arrived in Australia. A son was born to them in Sydney on 4 April 1990. The applicant made up his mind, when leaving Fiji, never to return because of what he had suffered there. He bears physical and psychological scars.

There was evidence before the Tribunal relating to certain events and developments in Fiji since the applicant left. I have already mentioned the two burnings of the sugar cane farm in 1988.

Fiji adopted its present Constitution in 1990. There was before the Tribunal a report that on 18 October 1990, the Group Against Racial Discrimination ("GARD"), a group which espoused the cause of equality between indigenous Fijians and Fijians of Indian racial origin, publicly burned a copy of the Constitution. According to the report, on 24 October GARD's chairperson, a Dr Singh, a Lecturer in Physics at the University of the South Pacific, was abducted and severely assaulted and in fact tortured for some 11 hours in the Fijian jungle. The report was to the effect that after inaction by the police, five soldiers pleaded guilty to the abduction and assault and received suspended sentences and a fine of $170 each.

There was also evidence before the Tribunal that in October-December 1990, three journalists in Fiji who published an article in the "Daily Post" repeating a comment by GARD supporters that there would be more burnings of the Constitution, were charged on 29 October 1990 with "maliciously fabricating an article" under section 15 of the Public Order Act 1976.

Mr Rambuka, as the former Colonel now is, is and has been Prime Minister of Fiji as a result of national elections held in 1992 and 1994 in which opposition parties, including the FLP, were free to field candidates. The Tribunal put to the applicant that the free expression in the Fijian Parliament and newspapers of opinions differing from those of the Government, indicated that he would not be at risk of harm because of his political opinions. He responded that he was opposed to the Constitution although it favoured indigenous Fijians such as himself.

By his application bearing date 21 April 1991 and lodged on 10 May 1991, the applicant applied to the Department of Immigration, Local Government and Ethnic Affairs for refugee status. By the operation of the Regulations then in force, the applicant was deemed to have applied for a Domestic Protection Temporary Entry Permit ("DPTEP"), a criterion for the grant of which was that the applicant was determined to be a refugee. From 1 September 1994, an application for a determination of refugee status and for a DPTEP was to be treated as an application for a protection visa (s 39 of the Migration Reform Act 1992).

At the election in Fiji conducted in 1992, the FLP supported Mr (formerly Colonel) Rambuka's bid for prime ministership.

In February 1994 the FLP won seven of the 27 seats set aside for Indians in the Fijian Parliament.

In June 1994 it was reported in the press in Fiji that the country's main opposition party might "withdraw from Parliament for good" following a warning by Prime Minister Rambuka, in an "outburst", that there could be a bloody repeat of the 1987 military coups.

In October 1994, a Mr Vagh, president of the Lautoka Chamber of Commerce and Industry, was reported as saying that Fiji needed, but did not have, the kind of environment that bred business confidence. He was reported as saying that "[C]onfidence means security of person and property and enforcement of law and order which is not currently prevalent in Fiji" and that "dishonesty, injustice, lawlessness and failure to honour contracts frighten investors away from our shores".

On 2 November 1994 a delegate of the Minister refused to grant to the applicant, his wife and child a protection visa. The applicant applied on 21 November 1994 for review by the Tribunal of that decision. The Tribunal heard the application on 8 August 1995. As noted earlier, on 16 August 1995 it affirmed the delegate's decision.

THE DECISION AND REASONS OF THE TRIBUNAL

The applicant gave evidence before the Tribunal through an interpreter. The Tribunal's Reasons review the evidence at length. The Tribunal accepted the applicant as a credible witness. In particular, it accepted his evidence about the beating which he suffered at the protest rally at Nandi Airport on 23 May 1987 and about his involvement in the FLP in major ways so as to have become identified as a strong supporter of it. The Tribunal further accepted the applicant's evidence that because of what he suffered in Fiji, he carries a pain, a psychological scar, which will remain with him always, as well as physical scarring. There was corroborative evidence, in the form of written statements, of the applicant's evidence of the beating which he received at the protest rally. The Tribunal accepted the applicant's evidence that because of what he had suffered, he had made a decision at the time of leaving Fiji never to return.

Further, the Tribunal accepted that information was available which indicated "that former members of the [FLP] are being denied the right to earn a livelihood in Fiji", but also that "those of indigenous Fijian racial background are being preferentially employed in the public service in Fiji; and also have preferential commercial loans offered to them if they wish to start a business enterprise." The Tribunal's Reasons contain the following passage which was attacked by the applicant on the hearing of the appeal and which I address in detail later:

"Nevertheless, even it were true that members of the Fiji Labour Party found it harder to obtain employment in Fiji, the Tribunal finds that the Applicant would not be denied the right to earn a livelihood in Fiji. At the time of the coups, the Applicant was working on the family farm and earning a livelihood. The Applicant's father and two brothers are still working the farm and there is no information which indicates that the Government would prevent the Applicant from similarly earning his livelihood on the family farm. The Tribunal therefore finds that the Applicant would not be denied the right to earn a livelihood in Fiji. The Tribunal therefore considers that the Applicant would not be denied the fundamental right to earn a living, and would not therefore suffer persecution by finding it harder to find a job in Fiji for reason of his political profile." (at p 11)

The following further passages from the Tribunal's findings were addressed in the applicant's submissions:

"Whilst the Tribunal accepts the Applicant's evidence about the harm which he suffered in Fiji before his departure, the Tribunal finds that there is no real chance that the Applicant would suffer serious harm, amounting to persecution, if he returned to Fiji. The Tribunal so finds on the basis of the Applicant's evidence and the information available to the Tribunal about the situation in Fiji. The Applicant's evidence indicates that he suffered no further harm at the hands of the authorities, after the protest march of May 1987, up until his departure from Fiji in 1988. The Tribunal notes the Applicant's evidence that he hid from the Authorities at this time; however, the Tribunal considers that if the army wished to harm the Applicant, they could have found him, or have harmed the Applicant by harming his family members. Yet no action was taken against the Applicant's brothers, or father, who were working the farm where the Applicant previously lived and worked. The information available about the situation in Fiji indicates that there has been a return of political stability and rule of law in Fiji; and that the army no longer control the country. Law and order is maintained in Fiji by accountable police force and independent judiciary. Members of the opposition parties in Fiji freely oppose Government policies by debating their opposition to such policies in the parliament and the press. Members of the FLP are able to campaign for candidates from their party, in the elections, without reprisal. This information indicates that people in Fiji are not being persecuted for reason of their political opinion of support for the Fiji Labour Party [DFAT Cable SU62724 of 17 March 1994; DFAT Cable 212 of 29 March 1995]. The Tribunal therefore finds that there is no real chance that the Applicant will be persecuted for reason of his political opinion if returned to Fiji." (at pp 11-12)

The Tribunal concluded that there was not a real chance that the applicant would suffer persecution for a Convention reason if he were to return to Fiji.

GROUNDS OF APPEAL AND SUBMISSIONS

Sub-section 476 (1) of the Act provides that application may be made for review by the Court of a "judicially-reviewable decision" on any one or more of the grounds identified in sub-s 476 (1). The expression "judicially-reviewable decision" includes a reference to a decision of the Tribunal: para 475 (1) (b). The particular ground mentioned in sub-s 476 (1) on which the applicant relies is that referred to in para (e):

"(e)That the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or 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;"

Section 486 of the Act provides that this Court has jurisdiction with respect to judicially-reviewable decisions.

In his form of application filed in the Registry on 21 September 1995 the applicant purported to invoke the jurisdiction of the Court under s 486 of the Act, under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") and under s 39B of the Judiciary Act 1903. He abandoned reliance on the latter two Acts on the hearing.

The applicant makes two broad submissions in support of a general submission that the Tribunal had erred in its approach to the question whether there was a "real chance" of persecution. The first is that the Tribunal failed to take into account, or failed adequately to take into account, "mere possibilities" and matters as to which "speculation" was necessary. In this respect, he refers to Minister for Immigration, Local Government and Ethnic Affairs v Mok Jek Bouy (1994) 55 FCR 375 (FCA/FC) ("Mok"), esp at 407-408 (Sheppard J, with whom Black CJ (at 377) and Lockhart J (at 379) agreed); Wu Shan Liang v Minister for Immigration, Local Government and Ethnic Affairs (1995) 57 FCR 432 (FCA/FC - special leave to appeal to the High Court granted) at 444-445; and Guo Wei Rong v Minister for Immigration, Local Government and Ethnic Affairs, (1996) 135 ALR 421 (FCA/FC) ("Guo") at 439-441 (Einfeld J) and at 458-460 (Foster J).

The second general submission is related to the first. It is that the Tribunal focused its attention on the position as at the date of its decision on 17 August 1995 and failed to take into account, or failed adequately to take into account, the immediately foreseeable future, and in particular, possible changes in Fiji in the immediately foreseeable future, adverse to the applicant (cf Mok at 403C (Sheppard J)). Again, and by reference to the same authorities, the applicant submits that the Tribunal declined to speculate as to certain possible developments in Fiji in the immediately foreseeable future which were referred to in evidence before the Tribunal.

In both respects the applicant submits that while the Tribunal purported to apply the "real chance" test of whether his fear of persecution was well founded laid down in Chan's case, in fact it failed to do so.

The Minister submits that in terms of the analysis in Chan's case, the applicant's submission is a submission that the Tribunal should have evaluated the possibilities to which the applicant refers and found that they established, alone or in combination, a "real chance" as distinct from a "remote chance", "far-fetched chance", "baseless chance" or "fanciful chance" of persecution. The Minister submits that the Tribunal was not obliged to explore in its Reasons each of the possibilities to which the applicant refers, although in some instances at least, it did so in any event. The Minister refers to Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 (FCA/Deane J) at 374-375 and Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427 (FCA/Foster J) at 4432, as cases which, while decided under different legislative provisions, support the general proposition that it is not a permissible basis for impugning a decision simply to show that there are matters to which reasons for decision might have referred but do not refer.

REASONS

The grounds on which the Court is entitled to review a judicially-reviewable decision, including a decision of the Tribunal are limited to the grounds identified in sub-s 476 (1). Paragraph 476 (1) (e) refers to errors of law of two classes:

(1) "an error involving an incorrect interpretation of the applicable law"; or

(2) "an incorrect application of the law to the facts as found by the person who made the decision".

The paragraph makes it plain that it is not necessary that the error should appear on the record of the decision.

The kind of error relied on by the applicant can be understood as an implicit error in the interpretation of the expression "well founded", albeit an error which has been exposed in the course of the Tribunal's application of the law in a particular case. On the other hand, it can be understood as an incorrect application of the "well founded" criterion, albeit correctly interpreted in accordance with the High Court's "real chance" exposition of the expression "well founded" in Chan's case, to the facts as found by the Tribunal. Further, it can be viewed as falling, at least in part, within both classes. I do not think it important for me to classify the error propounded as between the two categories.

I find it convenient to deal firstly with the applicant's second general submission. In my view, the submission that the Tribunal failed to have regard to the immediately foreseeable future should not be accepted. The applicant pointed to a passage in the transcript of the proceeding before the Tribunal in which the Tribunal referred to "the question" as being "whether there's a real chance that someone who was a strong supporter of the labour party in 1987 is at risk of serious harm in 1995". But those words uttered on 8 August 1995, in the context in which they were spoken, were intended to draw a contrast with a concern limited by reference to the applicant's past experience. They do not indicate a misapprehension by the Tribunal that it must confine its attention to the year 1995. Its Reasons for Decision show that it directed its attention to the applicant's future if he were to return to Fiji.

The Tribunal was clearly aware that it was required to consider the position as at the date of its decision and in at least the immediately foreseeable future.

I turn now to the applicant's first general submission. The Tribunal did not express itself as "weighing" evidence with a view to determining whether there was a "probability" that the applicant would be persecuted. However, the avoidance of the use of particular language which has been recognised in past cases as indicators of error does not necessarily signify that error does not exist. The question is one of substance.

The Tribunal (a) was not obliged to refer in its Reasons for Decision to every possibility able to be extracted from the evidence; and (b) was entitled, expressly or implicitly, to discard possibilities which, at best, established a "remote", "far-fetched", "baseless" or "fanciful" chance of persecution.

The possibilities to which the applicant referred were as follows:

(a) the possibility that a third coup will occur;

(b) the possibility that a "fresh election" will produce a different political climate;

(c) the possibility that a report on the Fijian Constitution to be made in 1997 will provide the occasion for persecution of dissentients such as the applicant;

(d) the possibility that the applicant's father will not permit the applicant to work on the family's sugar cane farm;

(e) the possibility that the applicant may not wish to work on the family's sugar cane farm;

(f) the possibility that the applicant will be treated contemptuously by fellow Fijians as an "Indian lover" and that "traditional Fijians" will sneer and laugh at him as one of the "progressive Fijians"; and

(g) the possibility that the main opposition party might withdraw from the parliament for good.

It was not suggested, and could not have been suggested, that these possibilities according to their terms, taken singly or together, would constitute persecution. In particular, possibility (f) would not itself constitute persecution by reason of political opinion: it is necessary to distinguish from persecution, the disapproval, even strongly and contemptuously expressed, of one group for the political views of another. Rather, the applicant's submission was that it was an error for the Tribunal not to take all seven possibilities into account as part of the total picture in deciding whether the applicant's fear of persecution was well founded.

The most recent consideration by a Full Court of this Court of the "real chance" test enunciated in Chan's case is found in Guo. At pages 441-442 of his Reasons for Judgment, Einfeld J identified a five-stage "practical approach" to the testing of possibilities required by the "real chance" test. Foster J expressed the view (at 459-460) that the Full Court decisions in Mok and in Chen Ru Mei v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 indicated that a process of the kind outlined by Einfeld J needed to be undertaken in order to prevent a decision-maker applying the wrong standard of proof in assessing the existence of a "real chance". Guo was decided six months after the Tribunal gave its decision in the present case and the Tribunal did not have available to it the benefit of their Honours' judgments.

The following passages from the Reasons for Judgment of Einfeld J are pertinent:

"In arriving at its determination or ‘finding’ of what may happen in the future, the Tribunal may feel a need to choose between one potential outcome and several others, preferring one scenario or hypothesis to another. This is not a correct approach." (at 439)

"The ‘real chance’ test may be satisfied notwithstanding that other plausible or even likely scenarios exist. No matter how many competing theories abound, the task of the Tribunal is to assess the genuine possibility of persecution on Convention grounds. If the Tribunal prefers a competing version of future events and therefore discounts this possibility, the test is wrongly applied.

This is not to say that issues of credibility and the existence of plausible inconsistent hypotheses will not be relevant. In a particular case considerations of this kind may negate any real chance of persecution for Convention reasons. But the Tribunal's task is to decide whether or not a real chance of persecution for Convention reasons exists." (at 439-440)

"Whether or not there is a real chance of persecution on Convention grounds includes speculation about the occurrence of future events and their possible effects on the situation. Whereas a Tribunal must not weigh up competing scenarios, it must engage in speculation of the future and consider foreseeable eventualities, and it must include them in its analysis: ..." (at 440)

"Both the decision maker and the Tribunal are under a positive duty to assess future potentialities, engage in speculation, and refrain from weighing and comparing scenarios. The essence of the ‘real chance’ test is to determine if there is a real chance that the appellants would be persecuted on a Convention ground; ‘real’ first in the sense that the chance is not fanciful or too remote or extreme.
The ‘real chance’ test is not concerned with proof of or preference for alternate theses on the balance of probabilities. Rather, once the facts indicate that the possibility of persecution is not remote, there will be a real chance for the purposes of the test unless it is disproved." (at 441-442)

His Honour referred to 14 passages in the Tribunal's Reasons for Decision relating to Mr Guo and found in them numerous indications that the Tribunal was engaged in a process of "weighing up", searching for "proof by corroboration" and declining "to speculate" (at 446). Foster J agreed that the passages provided "a sufficient basis for setting aside [the Tribunal's] decision as vitiated by error of law" (at 461).

In the present case, the most troublesome part of the Tribunal's Reasons for Decision is the passage first quoted earlier. In the first sentence (referring to the "third document"), the Tribunal summarised the effect of a letter dated 31 May 1995 signed by Jokapeci Koroi, President of the FLP on the letter of FLP, the relevant part of which was as follows:

"Should Mr Mataka return to Fiji, he would find life very difficult, especially so when he has no cane farm to return to, and the Government of the day has so much influence in the Provincial and Village administration of our country. Mr Mataka will be an outcast and would be unemployed like all Fijian Labour Party supporters."

It is convenient now to deal separately with the successive parts of the paragraph of the Tribunal's Reasons in question.

1. "The Tribunal considers that there is information available (from other sources) which indicates that former members of the Fiji Labour Party are being denied the right to earn a livelihood in Fiji."

The "other sources" are not identified. Apparently the reference is to sources other than the letter from the FLP. Although not expressed as a "finding", the sentence occurs in the section of the Reasons headed "Findings".

2. "Information from the Department of Foreign Affairs and Trade indicates that those of indigenous Fijian racial background are being preferentially employed in the public service in Fiji; and also have preferential commercial loans offered to them if they wish to start a business enterprise. Such affirmative action programs could benefit the Applicant."

These two sentences refer to a practice of discrimination in favour of persons such as the applicant.

3. "Nevertheless, even if it were true that members of the Fiji Labour Party found it harder to obtain employment in Fiji, the Tribunal finds that the Applicant would not be denied the right to earn a livelihood in Fiji."

This pivotal sentence is, at least superficially, inconsistent with (1) above. However, perhaps the two are not inconsistent, the "finding" in (3) constituting a rejection of the possibility to which the "information" in (1) relates. If this view is correct, Guo makes plain that the Tribunal was misapplying the "real chance" test, by putting out of account the possibility referred to in (1).

4. "At the time of the coups, the Applicant was working on the family farm and earning a livelihood. The Applicant's father and two brothers are still working the farm and there is no information which indicates that the Government would prevent the Applicant from similarly earning his livelihood on the family farm."

These two sentences appear to be offered as support for the factual "finding" in (3). The reasoning seems to be that since the applicant can return to work on the family farm, he "would not be denied the right to earn a livelihood in Fiji". There is no reference to the position if and when he should not, or should cease to, work on the family farm, or to the notion that persecution might exist if his only means of earning a livelihood in Fiji is to work on the family farm.

5. "The Tribunal therefore finds that the Applicant would not be denied the right to earn a livelihood in Fiji. The Tribunal therefore considers that the Applicant would not be denied the fundamental right to earn a living, and would not therefore suffer persecution, by finding it harder to find a job in Fiji for reason of his political profile."

The first of these sentences puts it beyond question that it is the Tribunal's finding that the applicant will be able to work on the farm that has given rise to the "finding" that "the Applicant would not be denied the right to earn a livelihood in Fiji" and, although introduced by the word "considers", to the finding that "the applicant would not be denied the fundamental right to earn a living, and would not therefore suffer persecution, by finding it harder to find a job in Fiji for reason of his political profile."

The approach revealed in the passage analysed above is one of choosing between inconsistent possibilities and then completely excluding from further consideration those that are inconsistent with those accepted. This approach is inconsistent with the "real chance" test of Chan's case as explicated by Full Courts of this Court in Mok, Wu and, most recently and perhaps most notably, in Guo. For this reason, the application for an order setting aside the Tribunal's decision and for remission of the matter to the Tribunal must be granted.

I make the following further observations:

(a) In its Reasons for Decision, the Tribunal referred to, and purported to apply, the "real chance" test in Chan's case. Its Reasons "are entitled to a beneficial construction" and I should not conclude that it did not apply the correct test unless this appears clearly (Wu at 378). In my respectful opinion, the error does appear clearly from the Tribunal's Reasons in the key passage to which I referred.

(b) If the passage analysed was intended to assert that as a former member of the FLP, the applicant will be denied the right to earn a livelihood in Fiji in any remunerative work whatever except on the family's sugar cane farm ((2) above alone may suggest that this was not the Tribunal's meaning), it is difficult to see why this would not constitute evidence of a real chance of persecution for political opinion.

(d) I have not thought it necessary to deal with the applicant's submission by reference to all the possibilities to which he has referred. It will be necessary when the Tribunal considers the matter again, to do so in accordance with the law established in Chan's case as explicated by Full Courts of this Court in Mok, Wu and Guo.

(e) The process of deciding in a principled manner whether there is a "real chance" of persecution for a Convention reason and formulating the reasons which have led to the decision made has proved to be fraught with difficulty. In fact, it may be said to have come to resemble nothing more than tiptoeing through a minefield. It remains to be seen whether the attempt made in Guo to provide guidance for delegates of the Minister and for the Refugee Review Tribunal will be efficacious. The best contribution that I can make is to resist the temptation to offer any kind of gloss on what the various Full Courts have said, that in Guo as recently as on 26 February 1996.

CONCLUSION

The decision of the Tribunal should be set aside and the matter to which the decision relates should be remitted to the Tribunal for further consideration and determination in accordance with law.

I certify that this and the preceding 26 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated: 24 May 1996

Heard: 10 May 1996

Place: Sydney

Decision: 24 May 1996

Appearances: Mr C R de Robillard of counsel instructed by Parish Patience appeared for the applicant.

Miss R M Henderson of counsel instructed by the Australian Government Solicitor appeared for the respondents.

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