Chan Yee Kin v Minister for Immigration and Ethnic Affairs

This is an application to review a decision of the Refugee Review Tribunal ("the RRT") which determined that the applicant was not a refugee and was therefore not entitled to a grant of a Protection Visa. The grounds of appeal pressed at the hearing were: "(a) the decision involved an error of law within s 476(1)(e) of the Migration Act 1958 ("the Act") in that the RRT incorrectly interpreted and applied the relevant law; (b) the RRT did not act in accordance with substantial justice and the merits of the case within s 420 of the Act; (c) there was no evidence to justify the making of a decision and reliance is placed on s 476(1)(g) of the Act."

Legislative framework It is common ground that for the purposes of this hearing the application should be treated as an application for a Protection Visa. In order to establish an entitlement to a Protection Visa an applicant must establish that Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. Under these instruments Australia has protection obligations to persons who are refugees, therein defined. The relevant definition is that in Article 1 of the Convention as amended by the Protocol, which provides that a refugee is any person 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..." The relevant date for deciding whether a person is a refugee is the time of the determination of the application. That is to say, in the present case, as at 3 May 1996. The circumstances existing at the time the applicant departed the country of nationality is relevant and may be determinative in the absence of facts indicating any material change in the state of affairs of the country of nationality. The relevant principles are well established and are set out in the minor authorities emanating from the High Court decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The requirement is that the applicant must show that they have a well-founded fear of being persecuted. This includes both subjective and objective elements. In the present case, it is common ground that the applicant has a subjective fear. The question turns on whether, objectively speaking, there is a real chance as opposed to a fanciful, remote or insubstantial chance that the applicant will be persecuted if he returns to his country of nationality. See Chan at 389-391, 396-399, 407, and 429. It is clear that a real chance of persecution may exist notwithstanding there is less than a small percentage chance of persecution occurring so long as the prospect is not remote or insubstantial. The expression "persecution" according to Mason CJ, in Chan at 388, requires some serious punishment or penalty or some significant detriment or disadvantage if the person returns; harm or threat of harm as part of a course of selective harassment of a person amounts to persecution if done for a Convention reason. Harassment can take many forms and would include denial of fundamental rights or freedoms; the imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidation; and the expression of political opinion. See also Hathaway in Law of Refugee Status, 1991, ch 4. Background The applicant was born near Colombo. His father was a Tamil and his mother Sinhalese. Several years later his family moved to the Central Province where he went to school. At school, where Sinhalese was the language of instruction, the applicant faced constant discrimination because he was identified as a Tamil as a result of his Tamil surname. He was given a hard time, made to sit at the back of the class, and taunted by both students and teachers. Even when things improved later and his fellow students elected him as a prefect, the teachers would not agree to it. Such discrimination caused the applicant and his sisters to change their surname to that of their Sinhalese mother in 1977 while they were in secondary school. During the ethnic violence in both 1977 and 1983, the applicant's family suffered. Following the 1977 riots, his family moved to Batticaloa in the east which was a mixed, but predominantly Tamil, population to escape the violence. However, in Batticaloa they were treated as Sinhalese by the Tamil militants and were given no opportunity to start a new life there. After a month they left, returning to Kandy. During the ethnic violence in 1983, the family were attacked by Sinhalese thugs in Mampitiya, and lost all their belongings when the Mampitiya hospital quarters where they were living were burned down. From 1988 on, the applicant and his family faced new threats from Janatha Vimukthi Peramuna ("JVP") activities. The JVP were very active in Kandy, with many cells operating in the surrounding area. The applicant's father, a doctor, had a medical clinic at Daulagala, south of Kandy. The applicant was employed at the clinic where he was in charge of reception and did the accounts. Towards the end of 1988, the JVP came to the clinic and demanded money. His father gave money to the JVP as a result of their demands. At this time, his father treated many people at his clinic who had been injured and whom he knew to be involved with the JVP. He could say nothing about this because he feared reprisals from both the JVP and the Sri Lankan armed forces. In early 1989, the applicant was approached by the JVP. The JVP wanted to show that they were not racist and were trying to recruit Tamils to their cause, particularly Indian Tamils working on large estates. Initially the applicant refused to join, but they continued to pressure him. JVP members who attended his father's clinic told the applicant to attend their meetings or otherwise he would be considered unpatriotic. He encountered similar pressures from his former school friends who were involved with the JVP, and who visited him at home after work to pressure him to join their activities against the government. The JVP members and sympathisers who put pressure on the applicant thought that he would be valuable to their movement because he was a Tamil who had fluency in Sinhala and some knowledge of Tamil. In June 1989 the applicant attended two JVP classes, the second meeting two weeks after the first. He thought that if he became involved with them, the JVP might ease their pressure on him and stop demanding money from his father. The applicant feared that the JVP may carry out threats to harm his family if he did not support them. At that time, the JVP was very powerful and capable of carrying out the threats it made. At the second meeting, he was handed some leaflets and posters to distribute in his area. He was reluctant to do this but took them and kept them at the clinic in case the JVP came there. He destroyed the rest and when the JVP enquired, told them he had distributed his supply. They told him they would print new ones for him to distribute, and he agreed to support their efforts so that he would not be targeted by them or harmed. In July 1989 he went to Kandy for lunch with a friend one day, returning about 6.30 in the evening. His mother told him that the army had come searching for him while he was out, with a search party of several uniformed soldiers in two jeeps. They terrified and intimated his mother, accused the applicant of being a JVP supporter, and told his mother they wanted to take him into detention, and that he must report to them at the army camp. His mother told them that he was innocent, but they would not listen. At that time the security forces were rounding up and apprehending young people whom they suspected of JVP involvement, and torturing them to confess their activities or to give them names of people who were sympathetic to the JVP or who had attended meetings. Based on that information alone, the security forces would arrest people and dispose of them, with no opportunity being given to them to prove their innocence. When his mother told their father of the visit of the armed forces, his father told the applicant to go and stay at a friend's house in Kandy, which the applicant did. At the end of August 1989 he went to Colombo where he secured a student visa, leaving for Australia at the end of October 1989. The applicant's sister followed the applicant to Australia six months later in May 1990. She had also encountered problems because of her involvement with the JVP. His sister was a school teacher and because of her fluency in Sinhalese and her ability in Tamil, the JVP used her to interpret and translate for them, including for foreign journalists. As a result, her activities in this regard came to the attention of the Sri Lankan authorities. When her father visited the police station to explain the nature of her involvement with the JVP, the police showed him photographs of her in the presence of key JVP members and journalists. The police did not believe her father when he said that she was only acting as a translator and interpreter, and said that they were treating her as a deeply committed and involved spokeswoman of the JVP who had given interviews and conferences to journalists. When the security forces initiated their crackdown, they targeted his sister, she managed to escape from Sri Lanka to Australia and was granted refugee status in 1994. After the applicant and his sister arrived in Australia, their parents told them that they had been questioned from time to time by the Sri Lankan police who were seeking information about their whereabouts as part of their continuing investigations and activities against suspected JVP members. On 21 November 1995, three days before his first RRT hearing, the applicant forwarded to the RRT a statutory declaration, dated 20 November 1996, outlining his claims for refugee status. In the declaration he included new claims, along with documents to substantiate these claims. Letters and Statements The first letter from the Sri Lankan police ("the first letter") was dated 5 October 1991 and reads: