Barnes v Minister for Immigration & Multicultural Affairs

Procedural Background and the Tribunal's Decision 11 After considering the applicant's application for a Protection Visa submitted in December 1996, the Minister's delegate decided on 28 May 1997 that it should be refused. In brief, the delegate did not believe that the applicant had a well-founded fear of persecution as required by the Refugee Convention and Act. The applicant sought a review by the Tribunal which handed down its decision on 16 July 1999 affirming the delegate's decision. 12 The Tribunal accepted that the applicant's brother had disappeared. However, it found that the applicant himself had not been of interest to the authorities before he left Sri Lanka. The members of the security force who had come to the Bank in either 1995 or 1996 to speak to the applicant had not done anything that could be considered persecutory. The Bank manager supported the applicant on that occasion and the applicant told the security forces he was a Burgher. There was no evidence of further contact between the authorities and the applicant after that time. 13 Moreover, the Tribunal rejected as "far-fetched" the suggestion that the Sri Lankan authorities had discovered the applicant's connection with Kannan. In the Tribunal's view, it would take a great deal of speculation to lead to a conclusion that the applicant would be persecuted as a result of having opened bank accounts as Kannan requested. The reasoning would start with the hypothesis that a person in whose name an account had been opened would be detained as an LTTE suspect, and would proceed to the supposition that the authorities would seek information about the account (if they considered that important). The authorities would then have to link the applicant to the opening of the account. The Tribunal considered there to be "too many speculative steps" in this process of reasoning. 14 In addition, the Tribunal had doubts about other aspects of the applicant's claims. It did not see why the authorities would be interested in who opened each of the bank accounts (assuming the Tribunal meant the Bank officer who processed the account rather than the new customer). Moreover, the Tribunal thought that Tamils opening bank accounts would not of itself be regarded unusual. It was also disinclined to believe that the authorities would still be looking for Mr Barnes now as a result of bank accounts which had been opened between 1993 and 1995. As a result, the Tribunal was generally sceptical of the applicant's claims. 15 The Tribunal did consider some other evidence provided by the applicant. For instance, it took note of a cable from the Department of Foreign Affairs and Trade ("DFAT") of November 1996 indicating that the Sri Lankan government was concerned that Tamils in "hill country" areas such as Kegalle, (where the applicant had been employed by the Bank), were a source of recruits for the LTTE. It also noted letters sent by two Tamil Sri Lankan Parliamentarians on behalf of Mr Barnes expressing concern for his safety if he were to return. However, those documents did not sway the Tribunal from the conclusion that the applicant's claims to be at risk of persecution were "far-fetched". 16 The Tribunal reviewed other parts of the applicant's testimony. It was not satisfied that the security forces are aware that Mr Barnes gave Bank lists of Tamils to Kannan or that the applicant had escorted Kannan around Colombo. Further, it noted that the applicant did not claim to have had trouble at security checkpoints. Finally, the Tribunal rejected the proposition that security forces would take revenge against the applicant because of the circumstances surrounding his brother's disappearance and his father's efforts to find his brother. The Tribunal felt that there had been ample opportunity for the security forces to exact revenge of that kind before the applicant left Sri Lanka. 17 In summary, the Tribunal felt that the chance that the applicant would be persecuted upon return to Sri Lanka was remote and not well-founded. Consequently, it rejected Mr. Barnes's application and he has sought a review by this Court of that rejection. 18 The applicant based his claim for review on two grounds which it is convenient to consider separately and in order.

1. The Tribunal failed to observe procedures under s 476(1)(a) of the Act or Regulations by failing to make findings of material fact as required by s 430(1)(c). 19 Mr Barnes contends in his application to this Court and at the hearing that the Tribunal had failed to make findings of material fact in respect of the "paper trail" which would lead Sri Lankan authorities to the applicant as a person actively involved in supporting and assisting the LTTE. Furthermore, the applicant contended that the Tribunal had not made appropriate findings in relation to the aggregation of facts which he claimed established that his fear of persecution was well-founded. As a result, the Tribunal had committed procedural error by not setting out its findings on material facts. 20 After these submissions had been advanced, the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, ruled that an alleged failure by the Tribunal to make findings of material fact did not constitute procedural error as envisaged by s 476(1)(a); see especially per McHugh, Gummow, and Hayne JJ at [77]. Consequently, this Court is now constrained from upholding an application for review on this ground.
2. The Tribunal made an error of law under s 476(1)(e) of the Act, in conjunction with s 420(2)(b), by incorrectly interpreting and applying the relevant law. 21 As his second ground of appeal, Mr Barnes asserts that the Tribunal erred in interpreting or applying the Refugee Convention by requiring the applicant to prove that it would be "probable" that he would be persecuted rather than considering merely whether his fear of persecution was "well-founded". As well, the applicant contended that the Tribunal's factual findings and conclusions in which his claims were described as "far-fetched", lacked probative evidentiary support and reflected an error of law. 22 In response, Counsel for the Minister argued that the Tribunal had properly expressed and applied the test for a well-founded fear of persecution and submitted that the other matters raised by the applicant went to the merits of the case and consequently could not be the subject of review by this Court.

A. Improper application of the "well-founded" standard 23 Sub-section 476(1) of the Act provides, so far as is relevant; "(1) Subject to subsection (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 . . . ." Section 420(2)(b) stipulates that; "(2) The Tribunal, in reviewing a decision: … … … … … (b) must act according to substantial justice and the merits of the case." 24 The Refugee Convention and Protocol, imported into Australian domestic law by the s 36(2) of the Act provide that a person is a refugee entitled to protected status if he or she has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion . . . ." Convention relating to the Status of Refugees 1951, Art. 1(A)(2). 25 For a person's fear of persecution to be "well-founded", he or she must face "a real chance" of persecution. Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The members of the High Court in Chan explained a real chance as any possibility which is not "remote" (Mason CJ at 389; Dawson J at 398), "remote or insubstantial" (Toohey J at 407), or "a far-fetched possibility" (McHugh J at 429). McHugh J enlarged on the concept, observing, at 429: "The decisions [of the House of Lords and US Supreme Court] also establish that a fear may be well-founded . . . even though persecution is unlikely to occur. . . [A]n applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as "well-founded" for the purpose of the Convention and Protocol." 26 Sackville J, as a member of a Full Court of this Court has pointed out in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239 that, in assessing whether or not an applicant has a well-founded fear of persecution, the Tribunal "must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur." It was also noted in the same context that the Tribunal "must frequently make its assessment on the basis of "fragmented, incomplete and confused information." His Honour continued, at 240: "The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past event might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute 'an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found'". 27 By the same token, the Tribunal is not required to address every issue of fact raised by an applicant or to give reasons explaining why every piece of evidence was accepted or rejected. Although McHugh J, in Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 74 ALJR 405 at pars 64-66, was concerned to analyse the requirements of s 430(1), his exposition of the task of the Tribunal in relation to the evidence is illuminating for present purposes; "In Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at 24 and 31, the Court said: "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. ... It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made." In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that: "(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case." In this case, the Tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1)." (emphasis added) 28 In respect of the approach to be taken by this Court to the reasons of the Tribunal, Sackville J, in Rajalingam (supra) observed, at 240: "Nor do I think that there in the reasoning of the High Court which permits a court exercising powers of judicial review to "impute" to the RRT . . . a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded. To take this course on the basis of the court's own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker's failure to apply the correct legal test or to comply with statutory requirements (for example, to set out findings on material questions of fact as required by the Migration Act, s 430(1)(c). It is another to decide what factual findings the RRT should or should not have made." 29 Mr Hurley of Counsel for the applicant pointed out that the Tribunal accepted that his brother Ajit had disappeared and contended that it failed to address the implications of this finding. That may mean, however, only that the Tribunal did not consider Ajit's disappearance had any implications which would affect any fear which the applicant might have of persecution for a Convention reason. Although it was open to the Tribunal to conclude that the brother's disappearance increased, or otherwise affected, the risk of persecution of the applicant, it was not required so to find. The implications were not necessary ones. Accordingly, the Tribunal was not obliged, on pain of committing an error of law, to set out its reasons for declining to draw them. 30 Mr Hurley further contended that the Tribunal had erred in concluding that the applicant was not of interest to the authorities despite the previous visit by security forces to him at the Bank. However, that, with respect, is to misread the reasons of the Tribunal. It concluded that the applicant is no longer of interest to the authorities "at this stage", notwithstanding what the attitude to him may have been in about 1995. In any event, the Tribunal was free to conclude that, at the time of its decision, Mr Barnes's fear was not well-founded because nothing adverse had happened when the security forces had approached him at the Bank and no further difficulties had befallen the applicant afterwards. 31 A third issue raised by the applicant is that the Tribunal outlined a paper trail said to establish the applicant's association with Kannan, but then regarded it as speculative and far-fetched that this trail would lead to persecution. As a result, the applicant claims that the Tribunal applied a standard of "probability" rather than asking whether his fear was "well-founded". However, the Tribunal's reasons for decision do not support this contention. The Tribunal used the language of the High Court in Chan Yee Kin to conclude that the evidence proffered by the applicant did not support a finding of well-founded fear. As well, the Tribunal listed the sequence of events that would have to occur before the authorities would make a connection between Mr Barnes and Kannan and decided that the possibility of such an association being made was speculative. Accordingly, the Tribunal did not misapply the relevant legal test. 32 Another alleged error of law is said to be revealed by inconsistency or some illogicality appearing from the Tribunal's reasons. Again, a review of the decision does not bear this out. The Tribunal addressed directly what it considered to be relevant issues. For example, it did not regard the single visit by the security forces to the Bank as persecution as the applicant suffered no consequences either then or later. Also, the Tribunal thought it unlikely that bank accounts opened by the applicant several years ago would now excite the adverse interest of the Sri Lankan government. Moreover, the Tribunal explained the series of events that would have to occur for the applicant's fear to be well-founded, and concluded that the chain of events required to expose him to persecution was too tenuous. Whilst another person looking at the same facts might have reached a different conclusion, the Tribunal's method of reasoning and its explanations of its findings were sufficient, and there was no error of law in this respect. 33 Finally, the applicant complains that the Tribunal dismissed without explanation the letters from two Sri Lankan Members of Parliament who stated, in varying degrees of detail, why they thought Mr Barnes may be in danger if he were to return to Sri Lanka. However, the Tribunal explicitly discounted these predictions because the applicant had held good positions and had experienced no difficulties with the authorities while living in Sri Lanka. Again, although others might have given different weight to the information in the letters in conjunction with other evidence, it was not legal error for the Tribunal to evaluate that material as it did. 34 In summary, the arguments advanced on behalf of the applicant do not show that the Tribunal committed an error of law by misapplying the test of a "well-founded" fear of persecution. Therefore, this challenge fails.

B. Failure to base factual findings on probative evidence 35 Like the first ground of appeal founded on par (a), the second ground of appeal also invokes s 476(1) but relies on par (e) "in conjunction with s 420(2)(b)". Sub-section 420(2) provides; "(2) The Tribunal, in reviewing a decision [of the Minister's delegate]: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case." 36 The applicant gave these particulars of this ground; "The Tribunal made conclusions on the basis that any fact not proved to the standard imposed by the Tribunal is "far fetched" without making such decision upon evidence which has probative value and on material which logically showed such existence." This formulation is not very clear but I take it to mean that the Tribunal allegedly rejected as far-fetched factual assertions made by Mr Barnes without basing those rejections on probative evidence. 37 First, it is be noted that the applicant does not say that there was no evidence for the Tribunal's conclusions. Such a claim could be made under s 476(1)(g) if "there was no evidence or other material to justify the making of the decision", subject to the limitations of s 476(4). As the applicant has not relied on par (g), it is unnecessary to consider it further. 38 However, by refraining from contending that there was no evidence to justify the Tribunal's decision, the applicant implicitly concedes that there was some evidence to support its conclusions on factual matters. As a result, the applicant's contention goes to the weight and method that the Tribunal used to evaluate the evidence. That affords no ground for asserting the Tribunal has committed an error of law. As Gleeson CJ and McHugh J said in Minister for Immigration v Eshetu (1999) 197 CLR 611 at 629 (regarding criticisms levelled by two Judges of this Court at the Tribunal for failing in its reasons to answer certain questions and for disregarding particular alleged facts): "These may or may not be valid criticisms of the Tribunal. The Tribunal concentrated its attention on Mr Eshetu's explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held that fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear. No error of law was shown. What emerged was nothing more than a number of reasons for disagreeing with the Tribunal's views of the merits of the case. The merits were for the Tribunal to determine, not for the Federal Court." 39 In Mr Barnes's case, the Tribunal reviewed the evidence as it thought fit and expressed itself to be satisfied that he did not have a well-founded fear. It was free to weigh whatever evidence was before it from whatever source. This Court cannot re-evaluate pursuant to s 476(1)(e) the probative value of the evidence because to do so would be to review the merits of the case. Accordingly, this challenge fails.

Conclusion 40 For the reasons which I have endeavoured to explain, the applicant has failed to show that the Tribunal committed an error of law in either of the ways identified in the grounds of appeal. The appeal must therefore be dismissed with costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Applicant: Ravi James and Associates

Solicitor for the Respondent: Australian Government Solicitor