FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 760

IMMIGRATION – application for review of decision of Refugee Review Tribunal refusing grant of protection visa – whether Tribunal erred by failing to engage in reasonable speculation in determining existence of “well-founded fear” of persecution – whether speculation by Tribunal is a requirement in making determination – relevance of availability of State protection to question of whether a “real chance” of persecution exists – whether Tribunal applied a presumption of effective State protection – relevance of “What if I am wrong?” test.

Migration Act 1958 ss 420(2)(b), 476(1)(e)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 referred to

Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 559-562 referred to

Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to

Morato v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1992) 39 FCR 401 referred to

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

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

Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to

Dhiman v Minister for Immigration and Multicultural Affairs [2000] FCA 221 referred to

A v Minister for Immigration and Multicultural Affairs [1999] FCA 116 referred to

Minister for Immigration and Multicultural Affairs v A (1998) 156 ALR 489 referred to

Hathaway The Law of Refugee Status 1991

BANDISATTAMBIGE AJITH SUSANTHA FERNANDO v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 328 of 1999

WEINBERG J

8 JUNE 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under Part 8 of the Migration Act 1958 (Cth) (“the Act”) to review the decision of a Refugee Review Tribunal (“the Tribunal”) made on 24 May 1999.  The Tribunal affirmed the decision of the respondent’s delegate to refuse to grant the applicant a protection visa.  The applicant contends that the Tribunal’s decision involved two separate errors of law, the first of which involved an incorrect interpretation of the applicable law, and the second an incorrect application of the law to the facts as found by the Tribunal.  Errors of that type are, pursuant to s 476(1)(e) of the Act, amenable to review in this Court.

Background

2                     The applicant is a Sri Lankan national, and Sinhalese by ethnicity.  He was born in Colombo on 20 March 1966 and is presently 34 years of age.  In February 1986 he joined the Sri Lankan Navy.  In 1989 he was selected to go to India to undertake specialised training.  In June 1990 he was appointed second-in-command of a high-powered assault craft.  Subsequently he was assigned duties in Naval Sub-Units. 

3                     In late 1991 or early 1992 the applicant was assigned duties at an establishment known as Pooneryn Camp (“Pooneryn”).  This was a vital strategic point adjacent to the Jaffna Lagoon.  It had been overrun by a militant Tamil organisation known as the Liberation Tigers of Tamil Eelam (“LTTE”) in November 1991 at great cost to the lives of government forces but was later retaken.  The applicant was placed in charge of security in the naval section of Pooneryn with some 380 sailors under his command.  He reported to an executive officer. 

4                     Whilst at Pooneryn the applicant was responsible for ensuring that the security of the perimeter was maintained, and for searching out any local civilians who may have been supporting the LTTE.  He claimed that in the course of performing his duties he had killed some hundreds of people, many of whom were likely to have been innocent of any involvement in the Tamil rebellion. 

5                     In apparent recognition of the manner in which the applicant had discharged his duties at Pooneryn, he was promoted to the rank of lieutenant.  He claimed that in March 1992 he began to receive death threats, first by telephone and then by letter.  He did not report these threats to the police, claiming that he considered that this would be unbecoming to a person of his rank.  He claimed that from about June 1992 he was frequently pursued by LTTE members, particularly while he was on leave.  He attempted to avoid them by going to stay at the home of a relative, however the harassment continued there. 

6                     By 1993 the applicant decided that he could no longer continue to serve in the Sri Lankan Navy.  He tendered his resignation but because Sri Lanka was then considered to be in a state of war, that resignation was refused. 

7                     The applicant accepted further postings throughout the next three years.  These included a stint in 1994 at what was formerly known as Boosa Camp (“Boosa”).  Boosa was a detention centre where members of the Police Special Taskforce were said to have tortured supporters of the LTTE.  The applicant again tendered his resignation at the end of 1996, and it was finally accepted on 1 January 1997.  He claimed that the LTTE harassment began again immediately thereafter.  He decided that he had no choice but to leave Sri Lanka.  He pawned his wife’s jewellery in order to raise the funds to enable him to do so, and arrived in Australia on 21 February 1997. 

8                     The applicant claimed that throughout the mid to late 1990s threats against members of the armed services were common.  Officers who had been stationed at Pooneryn and Boosa were particularly vulnerable to such threats.  The applicant claimed that in the minds of the LTTE he would forever be associated with the atrocities committed at those places. 

9                     The applicant claimed that the navy was not in a position to provide him with any support or protection.  He said that he was unable to identify any of the people who had threatened him.  He inferred, however, that they were members of the LTTE because he recognised their accents as Tamil.  He claimed that he was aware of a number of naval officers who had been murdered by the LTTE and, accordingly, he viewed the threats seriously.  He said there was no point in complaining to the police because they were hopelessly inefficient and could do nothing to protect him. 

The proceeding before the Tribunal

10                  The applicant contended that he was, at the time he applied for a protection visa, a refugee within the meaning of the Convention Relating to the Status of Refugees 1951 done at Geneva on 28 July 1951 (“the Convention”), as amended by the Protocol Relating to the Status of Refugees 1967 done at New York on 31 January 1967 213 UNTS 221.  In Art 1A(2) of the Convention it is provided that a person is a refugee who:

“… owing to 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 …”

11                  The Tribunal, which operates in an inquisitorial manner, carried out its own enquiries into a number of the applicant’s claims.  Independent sources confirmed a fact which is, in any event, well known, namely that civil conflict was, and is, rife in Sir Lanka.  Many innocent civilians have, tragically, over the years, been subjected to violence and death.

12                  The Tribunal accepted that the applicant held genuine fears of being required to return to Sri Lanka.  It found that he believed that both he and his family would be targeted by the LTTE because of his status as a naval officer who had been stationed at Pooneryn and Boosa.  His claim to have been threatened by members of the LTTE was regarded by the Tribunal as plausible.  The Tribunal found, however, that it was likely that these threats had been made because the applicant was a serviceman, and not because of any knowledge on the part of the LTTE of his past association with Pooneryn and Boosa.  The Tribunal observed that had that association had been behind the threats, the applicant would, in all likelihood, have been killed and not merely threatened.  He would, the Tribunal noted, have been a comparatively simple target for the LTTE.

13                  The Tribunal said that it was not convinced by several of the applicant’s claims.  These included, in particular, his claim to have been followed on occasion by LTTE members in cars or a jeep.  The Tribunal also said that it considered that the applicant had exaggerated both the nature and the frequency of the threats which had been made to him.

14                  Despite rejecting some of the applicant’s claims, the Tribunal considered his claim to refugee status as if all of the threats described by the applicant had, in fact, been made.  It noted, correctly, that threats such as these were capable of constituting “persecution” within the meaning of that expression in the Convention – Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 per McHugh J; Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 559-562.  It concluded, however, that even assuming that the applicant had been threatened in the manner which he described, the links between such threats and any Convention ground were “problematic”. 

15                  The Tribunal found that to the extent that any threats of the type described by the applicant had been made, they had nothing to do with “race”, “religion” or “nationality”.  The Tribunal noted that the applicant had made no claim of having been targeted for his political views, and there was no evidence to suggest that he had been in any way politically active.  In support of his claim, he had relied rather upon his role as a naval officer and, in particular, his activities at Pooneryn and Boosa.  In any event, these activities were not relevantly manifestations of any “political opinion”, and could not give rise to a claim to refugee status based on any actual or perceived political belief.

16                  That left the Tribunal to consider whether, in the language of Art 1A(2) of the Convention, the alleged persecution was “for reasons of … membership of a particular social group”.  The Tribunal observed:

“The remaining Convention ground is that of membership of a particular social group. This phrase has occupied the minds of judges and other legal experts in the field of refugee law, particularly as it was accepted into the Convention without debate which could have clarified the intentions of the authors. The leading judgement in Australian law is that of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 where a majority of the High Court concluded that the applicants were not members of a particular social group within the meaning of Article 1A(2) of the Convention. According to Dawson J (at 241)

“A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.”

In the same judgement, Gummow J quoted approvingly the statement in the case of Ram (Ram v MIEA (1995) 57 FCR 565)

“There must be a common unifying element binding the members together before there is a social group of that kind.  When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.” (at 569)

The Full Federal Court in the matter of the Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458 referred to both Applicant A and to Ram and went on to consider whether an occupational group could be regarded as a particular social group.  It suggested caution in making such a category available to an occupational group.

“Quite apart from the risk of using persecution or the fear of persecution as a defining feature, in many cases an occupational group will not satisfy the requirement that it be recognised within the society as a group even though it may fairly be said that the members of an occupational group has [sic] common characteristics not shared by their society.  Indeed members of an occupational group will have characteristics in common simply by reason of the fact that they all follow the same occupation, but this does not of itself make those who follow the same occupation members of a particular social group.”

The Applicant has implied that he is a member of such a group by pointing to the fact that the LTTE has targeted other members of the armed services.  That is, the armed services form an identifiable group within society.  The Tribunal has accepted that the Applicant was identifiable as a naval officer by his demeanour and dress.  As the Zamora judgement states:

“There will no doubt be cases in which persons who have in common no more than a shared occupation do form a cognisable group in their society. This may well come about, as McHugh J recognised in Applicant A’s case, when persons who follow a particular occupation are persecuted by reason of the occupation they follow.”

As intimated above, some officers of the armed services of Sri Lanka have been targets for LTTE violence. Where the suffering has been simply in the course of actions against the enemy, this does not fall within the Convention.  However, where they have been targets away from the battlefield, it could be said that such people have been persecuted for reasons of the occupation they follow.  Therefore it is plausible that the Applicant could have been identified as a member of the armed services, regarded by the LTTE then as a member of a particular group and so targeted.

However, even if this is allowed, the Applicant has left the military forces of his country.  He is now a civilian.  Were he to be a target in the future, it would not be for reasons of his membership of the particular social group of naval officers or members of the armed forces. The group is no longer there for him.  The Applicant has advanced no claim that he fears harm because he is a member of an ex-servicemen’s group.  It is his past membership of the armed forces which gave rise to his claimed fear.”

17                  The Tribunal, having rejected the applicant’s claims “to membership of a particular social group”, for the reasons set out above, then proceeded to consider his application for a protection visa upon the basis that it might have erred in doing so.  The Tribunal observed that in that event the question of effective protection within his own State would have to be addressed.  The Tribunal said:

“As observed by refugee law specialist, Professor James Hathaway,

“…..in addition to identifying the human rights potentially at risk in the country of origin, a decision on whether or not an individual faces a risk of ‘persecution’ must also comprehend scrutiny of the state’s ability and willingness effectively to respond to that risk.  Insofar as it is established that meaningful national protection is available to the claimant, a fear of persecution cannot be said to exist.”  (The Law of Refugee Status, Butterworths, 1991, p. 125)

One of the most significant features of volunteering, as the Applicant did, to serve in the armed forces of a State is that the person is volunteering to put themselves in harm’s way.  That is, one of the risks of being a member of the military is that one will be required to participate in military action.  The military organises itself to protect itself as much as possible in the carrying out of this duty.  Being exposed to the risks inherent in the job is not a case of being denied protection.  The Applicant has conceded that he came through years of action physically unscathed.

However, the Applicant has argued that it was when he was not on duty that he was at particular risk from the LTTE.  The Tribunal notes that Sri Lankan commanders were aware of some risk of this and advised their men to say little to anyone about their leave plans and to wear civilian clothing when off duty.  There is no evidence before the Tribunal which permits a finding that the State was unwilling to protect the Applicant and other officers.  It recognised the nature of the conflict and attempted to protect its members. As in all human affairs, there can be no guarantee of absolute protection from harm.  However, it could be said that the State did not fail to protect the Applicant in that he came to no harm while on active service nor when on leave.  His fear that he could be harmed and unprotected was not realised.

The Tribunal also notes that he did not access all avenues of State protection.  As a Sinhalese and a naval officer, he would have had some advantages in seeking police help.  While it is understandable that he felt too much pride to go to the police, this cannot mean that he could not have had protection had he asked.  As indicated above, he seems to have done little to accumulate evidence which could identify those who threatened him.  A combination of police investigation and his own skills might have made a difference.

If the Applicant returns to Sri Lanka, now as a civilian, he has the right to go to the police and report any threats or suspicous activity.  Indeed, the police, like the State, has a partiality for those who do not belong to the LTTE.  Its policy is to suppress it.  This must place the Applicant at some advantage.”

18                  Having rejected the applicant’s claim to being unable, or owing to such fear, being unwilling to avail himself of the protection of the country of his nationality, the Tribunal concluded its reasons for decision by stating:

“The Tribunal accepts that the Applicant has a strong fear of returning to Sri Lanka and that what he fears is persecution at the hands of the LTTE.  It has doubts that a Convention link to this persecution can be made out, but even if it can, it is satisfied that he is able to access protection from his own State.  This being the case, it is satisfied that he does not need the protection of Australia under the Refugees Convention.”  (emphasis added)

19                  The Tribunal therefore affirmed the decision of the Minister’s delegate to refuse to grant the applicant a protection visa.

Grounds of review

20                  In his application to this Court for an order of review the applicant originally relied upon a ground which alleged that the Tribunal had failed to act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Act.  In the light of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 that ground is no longer tenable.  It was expressly abandoned.

21                  The remaining grounds of appeal were as follows:

“(2)     The decision involved an error of law being an error involving an incorrect interpretation of the applicable law.

PARTICULARS

(a)               The Tribunal wrongly interpreted the law by failing to engage in reasonable speculation as to the chances of persecution if the Tribunal was wrong in findings of fact.  Such consideration is required of the Tribunal.

(b)               The Tribunal wrongly interpreted the law by stating that there was no evidence permitting a finding that the State was unwilling to protect the applicant rather than considering the true test which is to consider whether the applicant’s fear was the reason why he failed to avail himself of the protection of his own country.

(3)               The decision involved an error of law being an incorrect application of the law to the facts as found by the Tribunal.

PARTICULARS

(a)               The Tribunal wrongly applied the law by failing to engage in reasonable speculation as to the chances of persecution if the Tribunal was wrong in findings of fact.  Such consideration is required of the Tribunal.

(b)               The Tribunal wrongly applied the law by stating there was no evidence permitting a finding that the State was unwilling to protect the applicant rather than considering the true test which is to consider whether the applicant’s fear was the reason he failed to avail himself of the protection of his own country.”

The legislative scheme

22                  Application may be made for review by this Court of a “judicially-reviewable” decision.  Section 5 and s 475(1)(b) of the Act provide that decisions of the Tribunal are “judicially-reviewable”.  Application may be made for review on any one or more of the grounds set out in s 476(1).  The applicant relies solely upon s 476(1)(e) which provides as follows:

“476 (1)           Subject to sub-section (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

…

(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.

…”

23                  Section 476(2) provides:

“476(2)           The following are not grounds upon which an application may be made under subsection (1):

(a)               that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)               that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.”

24                  The Court does not have any jurisdiction in relation to judicially-reviewable decisions other than the jurisdiction provided by Pt 8 of the Act or by s 44 of the Judiciary Act 1903 (Cth).  That jurisdiction is, pursuant to s 486, exclusive to the Court, save for the jurisdiction of the High Court under s 75 of the Constitution. The powers of the Court on an application for review of a judicially-reviewable decision are set out in s 481(1).

The competing contentions regarding “reasonable speculation” – grounds 2(a) and 3(a)

25                  It was submitted on behalf of the applicant that the Tribunal had been required to engage in “reasonable speculation” as to the chances of persecution if it were wrong in its findings of fact, and that it had failed to do so.  The applicant contended that the obligation stemmed from the phrase “well-founded fear” in Art 1A(2) of the Convention and, in particular, the requirement that such fear be subjectively held, and objectively justified. 

26                  The applicant’s submission was based upon a series of High Court decisions which have, over the years, explained the meaning to be attributed to the concept of “well-founded fear of persecution”.  In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 it was held that an applicant for the status of refugee would satisfy the definition if he showed a genuine fear founded on a real chance that he would be persecuted for one of the stipulated reasons if he returned to the country of his nationality.  The objective justification of fear experienced by the applicant did not require proof that persecution would, in fact, occur upon the applicant’s return, but rather in asking whether there was a “real chance” that the person would be persecuted on Convention grounds.  A “real chance” of persecution might be established even though there was only a small, though not “far-fetched”, chance that this would occur.

27                  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kirby J observed that the test propounded in Chan necessarily involved a degree 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”.  His Honour noted that an indication that the delegate had put aside all speculation would show legal error.  So too would an indication that the evaluation of the “chance”, and its “reality”, had been made by a test weighing the probabilities.  His Honour said at 293:

“Two points must be made here.

First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan. 

Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material.  Evaluation of chance, as required by Chan cannot be reduced to scientific precision.  That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question:  “What if I am wrong?”  Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.”  (Footnote omitted)

28                  In Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 it was held that Chan had established that a person could have a well-founded fear of persecution even though the possibility of the persecution occurring was well below 50 per cent.  However, to use the “real chance” test as a substitute for the Convention term “well-founded fear” was to invite error.  In the joint judgment of the majority it was said at 572:

“No doubt in most, perhaps all, cases … the application of the real chance test, properly understood as the clarification of the phrase “well founded”leads to the same result as a direct application of that phrase.  … Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term.  In the present case, for example, Einfeld J thought that the “real chance”test invited speculation and that the Tribunal had erred because it “has shunned speculation”.  If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term.  But it seems likely, having regard to the context and his Honour’s conclusions concerning the Tribunal’s reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise.  If he was, he fell into error.  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 per cent 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.  A fear of persecution is not “well-founded”if it is merely assumed or if it is mere speculation.”

29                  The Federal Court has recently given consideration to the principles authoritatively stated by the High Court in Chan, Wu Shan Liang and Guo and, in particular, the status of the “What if I am wrong?” test.  In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 a Full Court of this Court allowed a series of appeals brought from orders made by the same primary judge in three separate proceedings.  The primary judge had accepted that the Tribunal had set out “in an unexceptionable way” the authorities governing what was required for a “well-founded fear of persecution”.  However the Tribunal had not referred to the possible need to ask at the end of the fact-finding process “What if I am wrong?”.  This failure had been held by the primary judge to constitute an error of law. 

30                  Sackville J (with whom North J agreed) summarised the relevant principles at 238 to 241.  His Honour said at 241:

“In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. …Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not[sic] in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”

31                  Kenny J at 255 said:

“There is, however, nothing in the judgments of the majority in Guo or Wu Shan Liang to require the RRT to address the specific question “What if I am wrong?” after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution.  Indeed, I doubt that Kirby J intended to be understood as requiring that: see Wu Shan Liang at 293.”

32                  In Dhiman v Minister for Immigration and Multicultural Affairs [2000] FCA 221 a Full Court constituted by Sundberg, Katz and Hely JJ confirmed that where a Tribunal has found facts on the basis that they are slightly more probable than not, it should ask itself whether it might be wrong.  But where it has no real doubt as to a finding, there is no such obligation.  The question is whether the finding is in fact “a positive and unhesitant one”.  The Court also recognised that a Tribunal was not obliged explicitly to formulate all of its findings.  It could make implicit findings, as it had done in that case.

33                  Counsel for the applicant in the present case submitted that the effect of these authorities was to require the Tribunal to determine whether there was a well-founded fear of persecution in the sense that there was a “real chance” that such persecution would occur.  He submitted that the Tribunal had failed, in this regard, to discharge its responsibility.

34                  Counsel for the respondent challenged this submission and contended that no error of any kind on the part of the Tribunal had been demonstrated.  The Tribunal had considered the applicant’s case both upon the basis of its findings of fact, and upon the basis that it might have erred in making those findings.  It had found that there was no “well-founded” fear of persecution based on a Convention ground, and had given reasons which were immune from Pt 8 review.

Conclusion re “reasonable speculation”

35                  The Tribunal concluded that the applicant had a strong fear of returning to Sri Lanka, and that what he feared was persecution at the hands of the LTTE.  The subjective limb of the test required by Art 1A(2) of the Convention was therefore satisfied. 

36                  When dealing with the objective limb of the test the Tribunal expressed itself as follows:

“It has doubts that a Convention link to this persecution can be made out. …”  (emphasis added)

Counsel for the applicant submitted that the existence of “doubts” in the mind of the Tribunal was not only not incompatible with a finding that there was a “real chance” that Convention linked persecution would ensue, but tantamount to a finding by it that there was a “well-founded fear of persecution”.  It was submitted that a finding expressed in those terms necessarily embodied a finding that there was a “real chance” of such persecution. 

37                  I am unable to accept this submission. 

38                  In Rajalingam Sackville J observed at 241:

“A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”:  Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.”

To focus in isolation upon the Tribunal’s observation that it had “doubts” that a Convention link to the persecution feared by the applicant could be made out would be, in my opinion, to engage in the very vice adverted to by his Honour in the passage set out above. 

39                  In context, the Tribunal, in expressing itself as it did, was doing no more than encapsulating, in a short half sentence, its rejection of the applicant’s claim that he had a well-founded fear of persecution based upon one or more Convention grounds.  It rejected that claim upon the basis that none of the Convention grounds had been shown to be applicable to his case.  “Race”, “religion”, “nationality” and “political opinion” were plainly excluded.  As for “membership of a particular social group” any persecution which the applicant feared was based upon his status as a naval officer, a position he no longer held at the time he lodged his application for a protection visa.  He was not, therefore, at the relevant time a “member” of the “particular social group” which he had identified in support of his claim to refugee status as being the source of the persecution which he relied upon.

40                  In context, the Tribunal’s observation concerning its “doubts” that a Convention link to the applicant’s feared persecution could be made out was perhaps a somewhat infelicitous way of expressing what was plainly a positive and unhesitant rejection of his claims to a “well-founded fear of persecution”.  The Tribunal’s observation was not, in my view, tantamount to a finding that there was a “real chance” that such persecution might ensue.

41                  I am fortified in my conclusion that this is a correct interpretation of this passage in the Tribunal’s reasons for decision by the fact that the particular sentence seized upon, when read as a whole, is as follows:

“It has doubts that a Convention link to this persecution can be made out, but even if it can, it is satisfied that he is able to access protection from his own State.”  (emphasis added)

42                  The Tribunal’s finding that the applicant was able to access protection from his own State was expressed in clear and unequivocal terms. 

43                  In A v Minister for Immigration Affairs and Multicultural Affairs [1999] FCA 116 a Full Court of this Court observed at par 38:

“It can be accepted, as was submitted for the appellants, that the language of Article 1A focuses upon the well-founded fear of persons claiming Convention protection and their inability or unwillingness, owing to such fear, to avail themselves of the protection of the country of nationality.  In that sense the willingness or ability of the country of nationality to provide protection is not the ultimate question.  But it is a question which must be considered in the assessment of refugee status.  The availability of protection in the country of origin or nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for Convention protection rests.”

44                  The Tribunal’s finding that the applicant had available to him protection in Sri Lanka was, therefore, relevant to the existence of the well-founded fear of persecution that is necessary for Convention protection. 

45                  The emphatic manner in which the Tribunal expressed its finding that effective protection was available makes clear, if it needed to be made clear, that the Tribunal did not accept that the applicant had a well-founded fear of persecution based upon any Convention grounds.  It follows that, in relation to its ultimate finding rejecting the applicant’s claim to refugee status, the Tribunal did not fail to engage in any reasonable speculation.  It also follows that the Tribunal did not fail to apply some variant of the “What if I am wrong?” test.

46                  The Tribunal did, in any event, consider the possibility that it might be mistaken in its findings of fact.  On two separate occasions in its reasons for decision the Tribunal expressly rejected aspects of the applicant’s claim.  However, it went on to give consideration to his situation as if those aspects of his claim were made out:

·                    The Tribunal stated that it was not convinced by the applicant’s description of having been followed by members of the LTTE in cars or a jeep.  It went on to say that it had nevertheless given consideration to his situation on the assumption that this description was true. 

·                    The Tribunal expressly rejected the applicant’s claim to be a “member of a particular social group” of the type referred to in Article 1A(2) of the Convention.  However, it went on to consider the possibility that it might have erred in doing so.  It turned specifically, on that basis, to the question of effective protection. 

47                  For these reasons I am unable to discern any error on the part of the Tribunal in the manner in which it approached the issue of whether the applicant had a “well-founded fear of persecution”.  It follows that grounds 2(a) and 3(a) must be rejected.

Did the Tribunal apply a presumption of effective protection? - grounds 2(b) and 3(b)

48                  Counsel for the applicant submitted that the Tribunal had erred by applying what was said to be a “presumption” of State protection rather than having approached the issue of such protection on the basis of the evidence, and other material, before it.  This error was said to be manifested in the following sentence in the Tribunal’s reasons for decision:

“There is no evidence before the Tribunal which permits a finding that the State was unwilling to protect the applicant and other officers.”  (emphasis added)

49                  Had the Tribunal in fact considered the question of State protection as one to be determined by recourse to the existence of a presumption, whether evidential or legal, it might well have fallen into error.  Such an approach was expressly eschewed by RD Nicholson J in Minister for Immigration and Multicultural Affairs v A (1998) 156 ALR 489 at 494-497, a judgment overturned on appeal, though not, it should be said, on this point – see A v Minister for Immigration and Multicultural Affairs [1999] FCA 116. 

50                  The Full Court in A referred to this issue at par 41 when it stated:

“The fact finding and evaluation to be undertaken by decision-makers in relation to applications for protection visas and by the Refugee Review Tribunal on review of their decisions is administrative in character.  In consequence it is not appropriate for those decision-makers to draw too closely upon the rules of evidence applied in civil proceedings:  see Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 282 where the High Court drew attention to the confusion likely to occur if the Refugee Review Tribunal was to decide questions of fact by adopting the civil standard of proof.  It is equally inappropriate for the Tribunal to apply curial devices such as presumptions of law or fact.  In Canada (Attorney-General) v Ward (1993) 103 DLR 1 at 23 it was said, in relation to an application for convention protection that: “Nations should be presumed capable of protecting their citizens.”  But such a presumption, that is a presumption without a basic fact, is a rule of law relating to the existence of a burden of proof and such a rule has no part to play in administrative proceedings which are inquisitorial in their nature.  Accordingly, the trial judge’s conclusion that “there is no foundation in authority or principle which should lead this Court to accept to accept the [Minister’s] submission for the existence of a presumption in terms of Ward” is plainly correct.”  (emphasis added)

51                  It is important to note, however, that the Full Court went on to say at par 42:

“On the other hand it is necessary that the decision-maker form a conclusion about the effectiveness of the relevant state protection and do so on some material whether presented by the claimant, otherwise available to the decision-maker or following additional inquiries by the decision-maker.  A ministerial delegate or specialist tribunal dealing with a significant volume of refugee cases in which issues of national protection arise may well become familiar with material relating to particular countries.  Thus the delegate may well have the view that a particular country is one which has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort said to be feared by the claimants.  In such a case and in the absence of evidence advanced by the claimant, the delegate will be entitled to reject the contention that the claimant is unable or unwilling because of a well-founded fear of persecution for a convention reason, to avail himself or herself of the protection of that country.”  (emphasis added)

52                  The Full Court continued at par 43:

“These can all fall under the broad proposition that there must be information or material available to the decision-maker from some source or sources on the issue of effective protection.  In some cases the claimant may have to do little more than to show that he or she falls within a particular class of person or possesses particular attributes to make out want of effective protection as a basis for a well-founded fear of persecution and inability or unwillingness to avail itself of the relevant protection.  In other cases the claimant may face a very difficult task indeed.”

53                  I am unable to accept the applicant’s submission that the Tribunal treated the issue of effective protection as one to be determined by recourse to the existence of a presumption, evidentiary or legal.  It did no more than state, correctly, that there was no evidence before it to indicate that the applicant’s country of nationality was unwilling to protect him or, indeed, other naval officers.  It reasoned that the applicant’s background was not such as to make it likely that those responsible for law enforcement in Sri Lanka would be unwilling to assist him by protecting him from members of the LTTE, those persons being the common enemy of the police, the armed services and the Sinhalese community. 

54                  It follows that grounds 2(b) and 3(b) must be rejected.

55                  It also follows that the application must be dismissed.

Associate:

Dated: