FEDERAL COURT OF AUSTRALIA

MIGRATION - refugee - protection visa - incorrect interpretation of applicable law - whether Refugee Review Tribunal failed to engage in reasonable speculation - whether Tribunal erroneously required corroborating evidence of applicants’ claim - whether Tribunal failed to rely on past events to determine possibility of future persecution

Migration Act 1958 (Cth) s 476(1)(e)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 179 followed

Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1996-1997) 144 ALR 567 applied

Minister for Immigration Local Government and Ethnic Affairs and Malcolm Peterson v Mok Gek Bouy (1994) 127 ALR 223 referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

GREGORY FRIDENSUS COONGHE WARNAKULASURIYA, TANIA COONGHE, TRISTAN COONGHE and TRISHANI FIONA COONGHE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

VG 22 of 1997

FINKELSTEIN J

MELBOURNE

6 APRIL 1998

BETWEEN:               GREGORY FRIDENSUS COONGHE WARNAKULASURIYA,

                                    TANIA COONGHE, TRISTAN COONGHE and TRISHANI                                          FIONA COONGHE

                                    Applicants

AND:                          MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

                                    Respondent

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants to pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

HIS HONOUR: The first applicant applies to review a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent (the Minister) that the first applicant is not a refugee within the meaning of Article 1 of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees and thus not entitled to a protection visa under s 36 of the Migration Act 1958 (Cth).

The second applicant (the first applicant’s wife) and the third and fourth applicants (the children of the first and second applicant) also seek to review the decision of the Tribunal.  The first applicant’s wife and children had applied for a visa as a member of the family unit of the first applicant.  As a member of the same family unit the first applicant’s wife and children were entitled to have their application follow the fate of the first applicant’s application.  Accordingly, it is not necessary to deal with their position separately from that of the first applicant.

The first applicant is a citizen of Sri Lanka who, together with his family, arrived in Australia on 17 October 1995.  The first applicant applied to the Minister for the grant of a protection visa on 2 November 1995.  The first applicant was entitled to the grant of a protection visa if he satisfied the Minister that:

“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”. 

See the definition of “refugee” in the Refugees’ Convention as amended by the Refugees’ Protocol.

The application was considered by a delegate of the Minister and was refused on 16 May 1996.  The first applicant then applied to the Tribunal to review that decision.

The case that the first applicant sought to establish before the Tribunal was that he had a well founded fear of persecution if required to return to Sri Lanka by reason of the following circumstances.  For a considerable period of time the first applicant was involved in political activities in Sri Lanka.  He was a member of the United National Party (UNP) having joined its youth movement in 1975 or 1976 and taking a position on its executive committee in 1980 or 1981.  Subsequently the first applicant became a vice president of the UNP.  In that position he was actively involved as a party organiser in his village during the general election that was held in 1994.  Although his party was defeated in that election the first applicant said that a candidate from the successful party, and now a Minister in the government, one Milroy Fernando, organised his supporters as to harass the first applicant and damage his property.  A complaint was made to the local police but they took no action.  Later in 1994 the first applicant was assaulted by some of the people whom he had identified to the police as having caused damage to his property.

The first applicant gave evidence that it was not unusual for supporters of UNP to be threatened with and suffer violent attack at the hands of members of the ruling party.  He referred to an incident that occurred in about April 1995 when a number of UNP members were killed.  The first applicant said that he told a journalist friend of his about this incident and the journalist wrote an article about it in a newspaper.  The article was not produced in evidence.  As a result of the publication of the article the first applicant said that the journalist was assaulted by Mr Fernando and his “henchmen”.  Some of these “henchmen” also went to the home of the first applicant’s parents and abused and threatened them and one of his children.  The applicant said that he was at risk of repeated attack from Mr Fernando.

There was also an incident in 1989 when the first applicant was forced to “lend” his vehicle to a terrorist group.  The first applicant said that the police discovered this and in 1995 had accused him of assisting the terrorists.

Then there was an accident that caused the death of a member of parliament.  The accident occurred when a car in which the parliamentarian was a passenger swerved to avoid tyres stacked on the road in front of a garage owned by the first applicant.  The first applicant said he was suspected of putting the tyres onto the road.

Based on his evidence the Tribunal found that the first applicant had a subjective fear of persecution should he be returned to Sri Lanka.  However, it found that there was not a real chance of persecution if the first applicant was to return to that country and accordingly confirmed the decision of the delegate. 

For the purpose of arriving at a decision the Tribunal made a number of findings concerning the matters asserted by the first applicant.  It found that the first applicant had exaggerated his role as an active participant in the political life of Sri Lanka and, in particular, it rejected his evidence that he was the UNP chief organiser in his village.  The Tribunal did accept that as a result of his work on behalf of the UNP the first applicant’s property was damaged and that he had been harassed and later assaulted.  But it discounted the effect of that finding by noting that those events had occurred in the context of the 1994 general election which was one of the most violent in Sri Lanka’s history.  In the view of the Tribunal this type of conduct was not likely to be repeated.  The Tribunal also noted, based on evidence it had obtained from the Department of Foreign Affairs and Trade, that none of this conduct had the approval of the government. 

A reasonable perspective of the general attitude taken by the Tribunal can be gleaned from the following paragraph taken from its reasons:

“The evidence indicates that Sri Lankan politics are a vigorous affair and that there have been incidents of violence against those who are involved in politics.  I have difficulty in accepting, however, that someone with the applicant’s level of participation before the elections and during the election campaign is now at risk of injury or death from Milroy Fernando merely for having been involved in an election campaign - an election in which Milroy Fernando retained his seat.

The Tribunal also refused to accept that Milroy Fernando had any current intention of causing harm to the first applicant.  The Tribunal said that:

“[The applicant’s] claim that he is in danger from Milroy Fernando and his thugs does not sit easily with the fact that he remained in Sri Lanka for nearly a year after this incident without being harmed ... (Accordingly) I am satisfied that there is only a remote chance that Milroy Fernando or anyone else would

seriously harm (the first applicant) if he now returned to Sri Lanka more than two years after the elections.”

So far as the alleged massacre was concerned the Tribunal said this:

“While, as stated, a number of UNP supporters have been killed since the election, for a number of reasons I do not accept the applicant’s claims of a massacre of UNP supporters and his role in bringing this to the notice of a newspaper reporter.  I am not aware of any massacre of UNP supporters in Marawilla in April 1995 nor can I find any such reference in (various named publications).  Nor has the applicant produced any documentary evidence in support of this claim.  At the hearing the applicant said that the incident did not appear in the media because the papers are controlled by the government.  This is clearly not the case.  Many papers are critical of the government and President Kumaratunga and there have been many reports of violence against UNP members and supporters ... which suggests that PA activists are responsible for UNP political activists being killed in Negombo.  Further, a massacre of UNP activists is hardly an event which could be kept secret and UNP politicians would undoubtedly raise it.”

The Tribunal then considered the allegation that serious human rights violations occur in Sri Lanka.  The Tribunal accepted that this was the position notwithstanding the improvement in the situation in recent years.  But the Tribunal said, correctly in my opinion, that the existence of generalised human rights abuses do not, in themselves, establish an applicant’s claim to refugee status.

In the result the Tribunal found that “having regard to all the evidence, separately and cumulatively, ... the objective circumstances are such that there is not a real chance ... that the applicant would suffer persecution if he is returned to Sri Lanka.”

The first applicant puts forward three bases for contending that the Tribunal fell into legal error in arriving at its decision.  Each of them is founded on the proposition that the decision of the Tribunal involved an error of law being an error involving an incorrect interpretation or application of the applicable law.  This ground is provided for by s 4676(1)(e) of the Migration Act as one of the available grounds for the review of a decision of the Tribunal. 

First it is alleged that the Tribunal failed to engage in reasonable speculation as to the chance of persecution if the Tribunal was wrong in its findings of fact.

In order to understand this submission it is necessary to say something about the test that must be satisfied before a person falls within the definition of “refugee”.  According to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 179 the Minister must be satisfied that a person has a genuine fear founded upon real risk of persecution for one or other of the reasons stated in the definition of “refugee”.  The evaluation of the chance of persecution, as was explained by the majority in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277, involves a degree of speculation in the sense of predicting or making an assessment of what the future will hold for an applicant.  In Liang Kirby J explained the matter this way (at 293):

“Because the test propounded by the court in Chan involves the necessity of the measure of speculation about what the chances held in store for an applicant, and whether there was a ‘real chance’ that made an established fear of persecution “well founded”, an indication that the delegates had put all speculation out of account would certainly show legal error.  So would an indication that the evaluation of the ‘chance’ and its ‘reality’ had been made by a test of weighing the probabilities.”

However, as his Honour went on to point out, there will be no error on the part of a decision-maker to reach conclusions as to which facts (if any) had been established and which facts had not been established by an applicant for the purposes of evaluating the “chance” and its “reality” although the decision-maker must not, by a process of factual findings, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the evidence. 

The Tribunal clearly understood what it was required to consider in determining whether the first applicant had a well founded fear of being persecuted.  It said:

“An applicant must have a ‘well founded fear’ of being persecuted.  The term ‘well founded fear’ was the subject of comment in ... Chan’s case.  It was observed that the term contains both a subjective and an objective requirement.  Subjectively, the applicant must actually be in fear and, objectively, the fear must be based in reality... It was observed (in Chan’s case) that a real chance is one that is substantial as distinct from remote and it may exist notwithstanding that there is less than a 50% chance of persecution occurring.”

The Tribunal went on to note that in Minister for Immigration Local Government and Ethnic Affairs and Malcolm Peterson v Mok Gek Bouy (1994) 127 ALR 223 at 248 Sheppard J had said that the Tribunal was required to evaluate the “chance” of persecution by predicting what would be likely to happen in the immediately foreseeable future. 

In its assessment of the evidence the Tribunal found that the objective circumstances were such that there was not a “real chance” that the first applicant would suffer persecution if he was returned to Sri Lanka.  This conclusion was reached after the Tribunal had taken into account the evidence that was before it “separately and cumulatively”.

As I have already indicated, in considering that evidence the Tribunal found that the first applicant had exaggerated his role as a member of the UNP.  It rejected his assertion that he had been one of the main UNP organisers in his village.  While accepting that the first applicant’s property had been damaged it rejected his claim that the police did not take his complaint seriously because the claim was inconsistent with evidence that the government was making serious attempts to eradicate institutional malpractices.  Finally, the Tribunal rejected the suggestion that the first applicant was at risk from Mr Fernando.  In other words, the Tribunal’s conduct on evaluation of the claim of persecution by predicting what was likely to happen to the first applicant if he returned to Sri Lanka it found that there was only a remote chance that Fernando or anyone else would harm the first applicant.  That is to say as a result of its evaluation of the evidence the Tribunal was in a position to decide, as it did decide that the “chance” of persecution was “not real”.  I can discern no error in the manner in which the Tribunal approached this issue. 

Next it is alleged that the Tribunal erred in requiring the first applicant to prove aspects of his case by a process of corroboration or supporting evidence. 

Here the submission was that the requirement that an applicant demonstrate that his or her genuine fear of persecution is founded on a “real chance” of persecution for one of the reasons stated in the definition of “refugee” requires rational speculation and denies the necessity of the proof of affirmative certainty: see Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1996-1997) 144 ALR 567 at 596-597 per Kirby J.  It followed, so it was said, that this required the Tribunal to accept or at least not deny the possibility of the existence of the facts asserted by the first applicant notwithstanding that there was no corroboration of them.  The evidence that was said to have been wrongly rejected was the alleged massacre of ANP supporters.

The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it.  In Guo, in the majority judgment at 570 it was said that “the Tribunal (is) entitled to weigh the material before it and make findings before it engaged in any consideration of whether or not (the applicant’s) fear of persecution on a convention ground was well founded.”: see also Wu Shan Liang at 293 per Kirby J.

This must admit of the possibility that the Tribunal will not accept the accuracy of certain “facts” unless they are corroborated in some way.  The acceptance or rejection of “facts” is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated.  Some “facts” may be so implausible that they should not be accepted.  An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence corroborated by some independent source.  If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law.  On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.

The last ground upon which reliance was placed is the allegation that the Tribunal approached the case by not considering the degree of probability of future events based on past events.

Here the point was that in determining whether there was a real chance of persecution the Tribunal was required to conduct an examination of what is likely to occur in the future by reference to what has occurred in the past because that at least is some reliable guide and the Tribunal failed to undertake that task.

There is no substance to this complaint.  The Tribunal expressly undertook the task of looking to past facts to determine what was likely to happen in the future.  First, it identified the relevant past “events such as Mr Fernando and his “henchmen” having threatened and assaulted the first applicant, the threats made to the first applicant’s family, the failure by the police to act on the first applicant’s complaint, the assertion that the first applicant might be wanted by the police for his political actions, and the human rights abuses in Sri Lanka.  It then decided which of those events occurred.  Then, it considered whether there was a real chance that those events which it did accept as having occurred would occur in the future.  The Tribunal decided that it was extremely unlikely that they would be repeated.  Accordingly it rejected the contention that the applicant had a well founded fear of persecution.  No error of law is demonstrated in the approach taken by the Tribunal.

In the event the application will be dismissed with costs.

Associate:

Dated:              6 April 1998