FEDERAL COURT OF AUSTRALIA

MIGRATION - Refugees - Determination of refugee status - Whether well founded fear of persecution for a Convention stipulated reason if applicant returns to Fiji  - approach to be adopted in assessing whether there was a well founded fear

Migration Act 1958

Convention relating to the Status of Refugees

Protocol relating to the Status of Refugees

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

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 considered

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

UMA CHAND v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS 

NG 257 of 1997

VON DOUSSA, MOORE & SACKVILLE JJ

SYDNEY

7 NOVEMBER 1997

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent's costs.

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

            on appeal from a judge of the federal court of australia

REASONS FOR JUDGMENT

THE COURT:            This is an appeal from a decision of a single judge of this Court (Branson J). Her Honour dismissed an application under s 476(1) of the Migration Act 1958 (“the Act”) to review a decision of the Refugee Review Tribunal (“RRT”) whereby the RRT found that Uma Chand, the appellant, was not a refugee. The RRT had affirmed the decision of a delegate of the Minister for Immigration and Ethnic Affairs to refuse to grant a protection visa to him, and to members of his family included in the visa application.

The criteria for the grant of a protection visa are set out in s 36(2) of the Act and Subclass 866 of Schedule 2 of the Migration Regulations. Section 36(2) provides that a criterion for a protection visa is that the appellant is a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done in New York on 31 January 1967 (“the Convention”). Under reg 866.221 this criterion is fulfilled where, at the time of the decision on an application for a protection visa, “[T]he Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention”.

As a contracting party to the Convention, Australia has protection obligations to persons who are refugees as defined in the Convention. Article 1A(2) of the Convention, as amended, relevantly defines a refugee as 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 appellant arrived in Australia from Fiji in April 1989 and gained entry on a temporary entry permit, valid for one month. He has remained in Australia since then. His nationality is Fijian, his religion is Hindu, and his race is Fiji-Indian. Prior to his arrival in Australia he had resided with his family in Fiji where he owned a house and land, and had been employed for some years as a police officer in the Fijian Police Force. The RRT recorded that the appellant put his case before it in the following terms:

“The Applicant stated that he fears persecution in Fiji for reason of his political opinion, of support for the Fiji Labor Party; and for reason of his race. He also fears that he has been framed for a criminal charge, and that he will be arrested and unfairly dealt with on return to Fiji. The reason that he will be mistreated through arrest for a criminal charge, on fabricated evidence, is that he was formerly a police officer, of Indian racial background, who was disapproved of for his actions against army officers at the time of the coup, and in the post-coup period.”

On the hearing of a review, the RRT is empowered by s 415 of the Act to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. Accordingly, the issue before the RRT was whether it was satisfied on the material before it that the appellant was a refugee within the meaning of Article 1A(2) of the Convention.

Although the Act has been substantially amended since the decision of the High Court in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, that decision establishes two propositions that continue to be applicable to the steps by which refugee status is to be ascertained. First, the definition of refugee involves a mixed subjective and objective test. Secondly, the definition will be satisfied if an applicant can show genuine fear founded upon “real chance” of persecution for a Convention stipulated reason if he or she returns to the country of nationality: Chan, at389, 398, 407, 429. As the majority of the High Court explained in Minister of Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 579 the “real chance” test postulated in Chan is to be understood as the clarification of the term “well-founded” used in the Convention. The requirement that the fear be “well-founded” provides the objective element in the definition of a refugee. Chan establishes that a well-founded fear may exist notwithstanding that the possibility of the persecution occurring is less than 50 per cent: per Mason CJ at 389. Depending on the circumstances, as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution, but if the chance were so low as to be only a far-fetched possibility it would not amount to a real chance: per McHugh J at 429. See also Guo at 576.

In determining whether a real chance of persecution exists if the appellant were to return to the country of nationality, the RRT was required to consider what might happen in the future. In their joint judgment in Guo Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said at 578:

“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.”

Speaking of Chan’s case, Kirby J in Guo said at 587.

“Because the future can never be told with certainty, particularly perhaps in the variable and sometimes unpredictable matter of persecution, this court endorsed a test which both permits and requires rational speculation and denies the necessity of the proof of affirmative certainty.”

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294 Kirby J said:

“There is no suggestion in Chan that this Court intended that the evaluation of past facts (as distinct from the speculation on future possibilities) would be based otherwise than on likelihood [Chan at 422]. The process of determination involves the delegate’s making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to the assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned to China.”

The present appeal involves an application of these principles to the facts of the appellant’s case, and to the place for “speculation” in the evaluation of the facts by the RRT.

The RRT had before it information collected at different times and from a number of sources. It had the appellant’s original claim for refugee status lodged on 10 April 1991 with a number of documents attached. These referred to his membership of the Fiji Labour Party, his good character, and to events at the time of the coups in Fiji in 1987. A letter from the Fijian Commissioner of Police to the applicant advising him that he had been discharged from the police force at a date after he left Fiji was also attached. There was a statement signed by the appellant taken by an officer of the Immigration Department on 20 March 1991. The appellant was interviewed again by the Department in October 1994 when another statement was taken from him, and he lodged written submissions in support of his original application. In his application to the RRT for review, the appellant provided further information about events which had occurred in Fiji at the time of the coups and until he left the country. On 7 March 1995 the RRT received notification that new solicitors were acting for the appellant, and those solicitors made written submissions and provided additional information. Then, at a hearing before the RRT in September 1995, the appellant and four witnesses nominated by him gave oral evidence.

In the course of supporting his claim for refugee status the appellant at some stages alleged persecution for reason of his religion, but at the hearing before the RRT this claim was not pressed. The RRT held that there was no evidence before it that he had suffered persecution in the past for reason of his religion.

The RRT accepted the appellant’s evidence that he had been a supporter of the Fiji Labour Party (“the FLP”) in the period before the 1987 elections. The RRT held that he suffered verbal harassment from senior police officers and army officers who were indigenous Fijians due to his support of the FLP, but never suffered any other harm on that score, either in the period leading up to the 1987 election or the post coup period. The RRT accepted his evidence that he felt that police officers of indigenous Fijian racial background believed he should not, as a police officer, have supported the FLP. However his evidence indicated that he did not suffer any form of mistreatment amounting to serious harm which could be considered persecution in the Convention terms. There was no evidence of continuing harassment of the appellant up until his departure from Fiji in 1989, two years after the coups, because of his support of the FLP in 1987. The RRT held that there is no real chance that the appellant will be persecuted if he returns to Fiji for reason of his political opinion in support of the FLP.

The RRT also accepted the appellant’s evidence, and that of his wife and son, that the family suffered mistreatment in the immediate post coup period whilst the appellant was absent at work. The appellant’s wife gave evidence that on one occasion she was sexually assaulted in her home by army officers. The RRT held that the evidence indicated that this mistreatment was due to the appellant’s involvement, as a police officer, in the “naval officer case” to which reference is made below, and not for a Convention reason. However the RRT went on to hold that even if the mistreatment of the appellant’s wife and child were for reasons of their race, and not due to the appellant’s role as a police officer, there was no real chance that the appellant and his family members would suffer similar mistreatment on return to Fiji. The mistreatment occurred in the immediate post coup period when law and order broke down in Fiji and the army were in control, so that it was difficult for the police to protect people from abuse. Based on information in the files of the respondent’s Department concerning the appellant, and in particular in Department of Foreign Affairs and Trade cables prepared in 1994 and 1995, the RRT held that law and order has now been restored in Fiji, that the police are committed to protecting people from abuse, that the police are accountable to parliament, and that the judiciary is independent so that citizens of Fiji can seek police protection from violence and abuse.

The RRT accepted evidence from the appellant, provided in written submissions, that he was verbally abused and humiliated by measures taken by Fijian police officers at the time of the coup. He was locked in a cell at times and received verbal taunts. The RRT accepted that this abuse was of a racial nature, but held that there is no real chance that the appellant would be similarly abused, for reason of his race, if he returned to Fiji. The Tribunal supported this finding by reference again to the return of law and order.

The appellant did not contend before this Court, that these conclusions by the RRT were not reasonably open on the evidence. The challenge which is now mounted relates to the manner in which the RRT approached the appellant’s assertions relating to the “naval officer case”. In his evidence before the RRT the appellant had said that the issue relating to the naval officer was the main threat he feared.

In his evidence before the RRT the appellant made the following assertions relating to the naval officer. In 1988 he was on annual leave and in plain clothes in the local market. He was with his wife and children buying vegetables. A Fijian in plain clothes suddenly called to him and said: “Go back to India”. The appellant could smell liquor on his breath. The Fijian started to push the appellant around and verbally abused him. The appellant arrested him for being drunk and disorderly and escorted him to the police station where he gave the arrested man into the custody of the police officer on duty. Then an incident occurred when the arrested man fell down some steps and suffered a cut above his eye. Other police officers came to the appellant’s assistance, and there were a number of witnesses. At the time the arrested person gave a false name but it later transpired that he was a naval officer. The appellant says that the naval officer made a complaint that the appellant had assaulted him.

The allegation about the assault was still to be investigated by the police when, about two months later, the appellant heard from the police that the naval officer had been involved in a family brawl that put the officer into hospital, and that he died from injuries received in that brawl. The appellant said that the police did not put to him allegations about the nature of the naval officer’s injuries which caused his death.

The investigations into the alleged assault by the appellant continued after the death of the naval officer. The enquiries were conducted by an Assistant Commissioner of Police, who was threatening to the appellant and to his colleague who had witnessed events in the police station. The appellant gave evidence that the Assistant Commissioner urged the witnesses to change their stories. At one point the appellant said that the witnesses had not changed their stories, but at another point said he did not know whether they had done so. He claimed that he feared that the police would fabricate evidence, and that he would be charged with murder of the naval officer. He therefore made arrangements to leave Fiji. He arranged one month’s leave and travelled to Australia. He did not return. By letter written to him about two months after he went on leave he was advised that he had been discharged from the police force.

The allegations made before the RRT by the appellant had not been made in his initial application for a protection visa, and his evidence on this topic differed in significant respects from information he had earlier given to the Department.

Before the RRT the appellant’s brother-in-law and sister-in-law gave evidence. The brother-in-law, who is a naturalised Australian, said that he had returned to Fiji in 1993, 1994 and 1995, and on each occasion people who he took to be police officers had approached him and asked if he knew the whereabouts of the appellant. The appellant’s sister-in-law had accompanied the brother-in-law to Fiji on one of these visits and also gave evidence about them being approached by men inquiring about the appellant’s whereabouts. The appellant argued that this evidence confirmed his fear that the police were seeking him, and that he would be falsely charged with murder on fabricated evidence should he return to Fiji. He contended that this action would be taken against him because of his race.

The RRT perceived there to be a conflict between the evidence of the brother-in-law and the sister-in-law on a point of detail which it considered reflected on their credibility. The RRT, on this basis, rejected their evidence, but went on to observe that even if it accepted their evidence, it indicated no more than that questions had been asked about the appellant’s whereabouts. Their evidence did not indicate why the questions were asked, nor that the appellant faced a real chance of being harmed for a Convention reason on return to Fiji.

The RRT rejected the appellant’s evidence that he was discharged from the police force for disciplinary reasons associated with the allegation of assault on the naval officer. It found that the date of the discharge letter, and the section of the relevant Act cited as the authority under which his discharge was effected, suggested that he was discharged because he had not returned to work after his period of authorised leave.

The RRT discussed aspects of the appellant’s evidence which it considered to be implausible. In particular the RRT rejected as not credible an explanation offered by the appellant for his failure to disclose his fear that he would be charged with murder in his initial application and interview for a protection visa. The RRT expressly rejected the appellant’s evidence that the police were seeking to blame him for the death of the naval officer. The RRT went on to conclude that:

“... the Applicant’s evidence viewed at its highest by the Tribunal, supports a finding that the Applicant may face a charge of assaulting the naval officer whilst in custody.

However, the Tribunal considers that the chance that the Applicant is facing such a charge is remote. The Tribunal so finds on the basis of the Applicant’s evidence. [The RRT then discussed the evidence] ... The Tribunal therefore finds that the Applicant’s evidence supports a finding that there was no evidence, disclosed by the police investigation, which would implicate the Applicant with assaulting the naval officer.

As the Tribunal has rejected the Applicant’s evidence that he faces a charge of murder, on fabricated evidence; and as the Tribunal finds that, at its highest, the Applicant’s evidence indicates that he may have been investigated for an allegation of assault, but the available evidence does not support the allegation that the Applicant was guilty of an assault, then at the most the Applicant would face on return to Fiji, possibly, an incomplete investigation of an assault charge. The Tribunal considers that there is no real chance that the Applicant would be persecuted for reason of this allegation or investigation of assault. Information indicates that the Applicant could rely on the judiciary and legal system of Fiji to make available to him the opportunity to present a defence to such a case, including the opportunity to challenge any fabricated evidence...The Tribunal therefore finds that the chance that the Applicant would be persecuted, for reason of the incident over the naval officer which occurred before he left Fiji, is remote.”

In light of the finding last mentioned, the RRT said that it did not have to determine whether the appellant’s fear on this ground was Convention related. The RRT concluded its lengthy reasons for decision by saying that it found that there was not a real chance that the appellant, or his wife and children, would suffer persecution for a Convention reason on return to Fiji, and that the appellant was not a refugee.

Before the primary judge it was contended on behalf of the appellant that the RRT had erred in the manner in which it considered whether there was a “real chance” of the appellant being persecuted if he were to return to Fiji. It was argued that the RRT erred in taking a global approach to the evidence; or alternatively that it had approached the evidence in a “cheese paring fashion, item by item being excluded from [the] hypothesis”. Both submissions were rejected.

The primary judge also rejected two other submissions. The first was that the decision reflected an error of law because the RRT was wrong to think that there was a conflict between the evidence of the brother-in-law and the sister-in-law. The second was that the RRT failed to refer expressly to material submitted by the appellant to the effect that the Fijian Constitution reflected inherent racial unfairness, and consequently failed to speculate as to the possibility that the appellant and his family would not receive the full protection of the machinery of government in which their racial group was specifically discounted in representation and power. On the first submissions, her Honour pointed out that the RRT’s rejection of the evidence of the brother-in-law and sister-in-law had no bearing on the ultimate decision and was at best an immaterial error, even if it could be brought within the ground of review prescribed in s 476(1)(g) of the Act. On the second submission, her Honour said that she did not accept that the RRT had not given proper consideration to the possibility that the appellant and his family would not receive “the full protection of the machinery of government”.

Before this Court the amended notice of appeal raises only one ground of appeal, namely that the primary judge was in error in finding that the RRT had not erred in its approach to considering whether it was satisfied that there was a “real chance” that the appellant or his family would suffer persecution on a Convention ground if returned to Fiji. The particulars given of this ground are as follows:

“(a)     Her Honour did not apply a requirement of speculation to the approach of the Tribunal to the applicant’s evidence. This was a requirement with respect to the exclusion of the evidence of the two relatives.

            Similarly, Branson J has allowed the Tribunal to assert the ‘political welfare’ of the applicant and the family in Fiji when there was evidence to sustain speculation of a substantial basis for a well founded fear that the Fijian political structure at the time of the decision of the Tribunal provided no safeguard to those of Indian extraction.

(b)        Consequent on (a) above, her Honour did not correctly measure the respondent’s rebutting evidence as to its direct relevance or analogous quality with the applicant’s evidence.

(c)        Consequent on (a) and (b) above, her Honour did not apply the correct legal test to the evidence before the Tribunal. It was not enough that the Tribunal rely on the respondent’s evidence apparently contrary to the applicant’s claim that he had a well-founded fear of persecution because of a change in Fijian conditions. The Tribunal is required to speculate as to whether a relevant event might or might not occur in the future. Such speculation as to whether a fear is well founded is sound if it has a substantial basis in evidence. The Tribunal did not so speculate.”

[Page citations in judgment of Branson J omitted, emphasis reproduced from original.]

The appellant’s submissions, as encapsulated in these particulars, complain that the RRT was required by law to speculate in its consideration of the appellant’s evidence, and in doing so to have regard to the possibility that the evidence of the brother-in-law and the sister-in-law might be correct, and to the possibility that the evidence of these two witnesses indicated that law and order had not returned in Fiji.

In our opinion, the submissions reflect a misunderstanding of the role of the RRT, as explained by the High Court in Guo. The question required to be considered by the RRT was not whether “there was evidence to sustain speculation of a substantial basis for a well founded fear...” (to use the language of particular (a) quoted above from the amended notice of appeal). Rather, it was whether there was a substantial basis for speculation that there was a well founded fear. The question posed by the appellant’s argument invites conjecture in circumstances where the assessment by the RRT of the evidence of past events provides no basis for any such conjecture. This is explained in the following passage from Guo, at 577:

“Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded"  when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.”

It is further explained in the discussion of the facts of that case, at 579:

“It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not ‘differentially at risk for a Convention reason’. Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.

...

For the reasons that we have given, the tribunal was entitled to weigh the material before it and make findings before it engaged ‘in any consideration of whether or not Mr Guo’s fear of persecution on a Convention ground was well-founded’. Moreover, given the strength of some of the tribunal’s findings - for example, ‘the treatment the applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials’, ‘the applicant’s illegal departure in 1993 will not result in an imputed political profile’, ‘these matters will not result in persecution to the applicant for Convention reasons if returned to China’ - the tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention-based.”

The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another: see Wu at 281-282. If the RRT, in its evaluation of the evidence, finds that a fact alleged by a claimant in support of his or her case did not happen, that rejected allegation of fact can provide no substantial basis for speculating that a well founded fear exists.

This statement of general principle requires qualification where, although the RRT considers that a past fact asserted in support of the claim for refugee status probably did not happen, a finding to that effect cannot be made with the degree of confidence which justifies putting aside the allegation as being without substance. The need for this qualification is recognised in the passage last cited above from Guo at 579, and in the judgment of Kirby J in Wu at 293 where his Honour 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?’ [Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441, per Einfield J.] 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.”

In the present case, the RRT considered the evidence about the alleged assault on the naval officer at length and discussed the evidence of the brother-in-law and sister-in-law in that context. The RRT addressed the allegation that the police were still seeking out the appellant, and rejected the evidence on that topic from the brother-in-law and sister-in-law. The task of finding the facts was that of the RRT, and even if it erred in the factual considerations that led it to reject their evidence, it did not commit an error of law that is reviewable in this Court. The RRT did not express any uncertainty in its rejection of that evidence that would require it to then engage in the exercise of conjecture: “What if I am wrong?” But the RRT nevertheless did so, and concluded that the evidence would not indicate that the appellant faced a real chance of being harmed on return to Fiji for a Convention reason. The reasoning of the RRT leading to this conclusion was criticised by counsel for the appellant. The RRT said:

“However, even if the Tribunal were to accept the evidence of these two witnesses, the Tribunal considers that this evidence indicates that questions were asked about the Applicant’s whereabouts but it does not indicate why such questions asked. In the context of the evidence in the Applicant’s case overall, as detailed above, and the Tribunal’s findings about the meaning of this evidence, as detailed above, the Tribunal considers that the evidence of these two witnesses that inquiries were made about the Applicant does not indicate that the Applicant faces a real chance of being harmed on return to Fiji for a Convention reason.”

The references to the context and findings already made by the RRT, against which the evidence (if accepted) would fall to be assessed, included the findings that the appellant did not have a well founded fear of persecution on any of the grounds he had alleged, other than in respect of the naval officer matter. Regarding the naval officer, the RRT had already found that there was no evidence disclosed by the police investigation that would implicate the appellant with assaulting him, and that the chance of the appellant facing a charge of assault was remote. The RRT had also rejected his evidence that the police were seeking to blame him for the naval officer’s death. In this context the conclusion of the RRT is entirely understandable and discloses no legal error.

The appellant’s submissions criticise the RRT for not speculating about the chance that the Fijian political structure at the time of its decision provided no safeguard to those of Indian extraction. The RRT had lengthy reports from the Department of Foreign Affairs and Trade on which it relied to reach conclusions that were plainly open on the reports. These conclusions were expressed without qualification, and in terms that indicate that the RRT did not doubt that law and order had been restored so that the appellant would be protected against the risk of persecution. Having so found, there was no occasion to speculate by asking “What if I am wrong?”

Insofar as it is suggested that the evidence of the brother-in-law and sister-in-law provided information that contradicted the reports from the Department of Foreign Affairs and Trade, the submission is without substance. Their evidence was rejected by the RRT. In any event, their evidence only covered the alleged inquiries by police officers as to the whereabouts of the appellant. Their evidence does not deal with the return of law and order and the other issues covered in the reports. Even if it were accepted, the evidence was not in conflict with the information acted on by the RRT.

Insofar as it is suggested that the RRT failed to engage in speculation based on aspects of the reports which discussed preferences given to Fijians and the absence of “one person/one vote” in the Fijian Constitution of 1990, and reported incidents of racially based discrimination following the 1987 coups, the submission is not made out. There is no reason to suspect that the RRT did not give due consideration to all the material contained in the reports including the parts referred to by the appellant’s counsel in his submissions. The conclusions reached by the RRT were in accordance with the tenor of those reports. The RRT expressly considered letters and references produced by the appellant that suggested that the appellant could suffer persecution because of a continuing breakdown of law and order, and concluded:

“In the context of all the evidence in the Applicant’s case, and the information available to the Tribunal about the situation in Fiji, the Tribunal finds that the Applicant does not face a real chance of persecution in Fiji”.

Finally, counsel for the appellant contended that the RRT failed to test the evidence adequately against the appellant’s subjective fears. Counsel contended that it is not enough to find a change in circumstances in the country of nationality on an objective basis. In support of this submission the Court was referred to the following passage in the judgment of Madgwick J in Yesus v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 277 at 284:

“The question is not whether there had been some changes in the erstwhile persecuting regime’s practices, but whether any such change or changes would suffice to allay formerly well-founded fears of future persecution held by an already persecuted man.”

In Yesus, as in Chan, it was held that the information before the decision-maker did not justify a conclusion that the circumstances in the country of nationality which had given rise to the well founded fear of persecution at the time of flight had materially changed by the time of the determination. Those were cases where the information did not establish a sufficient change in circumstances “to say that the fear of a reasonable person in the position of the claimant would be allayed by the knowledge of subsequent changes in the country of nationality”: see Chan, per Gaudron J at 415. The present case is markedly different. Here there was information before the RRT that major changes had occurred since the appellant left Fiji. On this information the RRT was fully entitled to find, as it did, that the breakdown in law and order that led to the appellant having a well founded fear of persecution around the time of the coups in 1987 has ceased.

For these reasons we consider the appeal should be dismissed.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment of the Court

Associate:

Dated:

Counsel for the appellant                                   :           Mr S C Churches

Solicitors for the appellant                                 :           Nair & Co.

Counsel for the respondent                               :           Mr N J Williams

Solicitors for the respondent                              :           Australian Government Solicitor

Date of hearing                                     :           12 September 1997

Place of hearing                                                :           Sydney