Chan Yee Kin v The Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT THE COURT: This is an appeal from a decision of a single judge of this Court (Branson J). Her Honour dismissed an application under s 476(1) of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("RRT") whereby the RRT found that Uma Chand, the appellant, was not a refugee. The RRT had affirmed the decision of a delegate of the Minister for Immigration and Ethnic Affairs to refuse to grant a protection visa to him, and to members of his family included in the visa application. The criteria for the grant of a protection visa are set out in s 36(2) of the Act and Subclass 866 of Schedule 2 of the Migration Regulations. Section 36(2) provides that a criterion for a protection visa is that the appellant is a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done in New York on 31 January 1967 ("the Convention"). Under reg 866.221 this criterion is fulfilled where, at the time of the decision on an application for a protection visa, "[T]he Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention". As a contracting party to the Convention, Australia has protection obligations to persons who are refugees as defined in the Convention. Article 1A(2) of the Convention, as amended, relevantly defines a refugee as any person who: "...owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;...". The appellant arrived in Australia from Fiji in April 1989 and gained entry on a temporary entry permit, valid for one month. He has remained in Australia since then. His nationality is Fijian, his religion is Hindu, and his race is Fiji-Indian. Prior to his arrival in Australia he had resided with his family in Fiji where he owned a house and land, and had been employed for some years as a police officer in the Fijian Police Force. The RRT recorded that the appellant put his case before it in the following terms: "The Applicant stated that he fears persecution in Fiji for reason of his political opinion, of support for the Fiji Labor Party; and for reason of his race. He also fears that he has been framed for a criminal charge, and that he will be arrested and unfairly dealt with on return to Fiji. The reason that he will be mistreated through arrest for a criminal charge, on fabricated evidence, is that he was formerly a police officer, of Indian racial background, who was disapproved of for his actions against army officers at the time of the coup, and in the post-coup period." On the hearing of a review, the RRT is empowered by s 415 of the Act to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. Accordingly, the issue before the RRT was whether it was satisfied on the material before it that the appellant was a refugee within the meaning of Article 1A(2) of the Convention. Although the Act has been substantially amended since the decision of the High Court in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, that decision establishes two propositions that continue to be applicable to the steps by which refugee status is to be ascertained. First, the definition of refugee involves a mixed subjective and objective test. Secondly, the definition will be satisfied if an applicant can show genuine fear founded upon "real chance" of persecution for a Convention stipulated reason if he or she returns to the country of nationality: Chan, at389, 398, 407, 429. As the majority of the High Court explained in Minister of Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 579 the "real chance" test postulated in Chan is to be understood as the clarification of the term "well-founded" used in the Convention. The requirement that the fear be "well-founded" provides the objective element in the definition of a refugee. Chan establishes that a well-founded fear may exist notwithstanding that the possibility of the persecution occurring is less than 50 per cent: per Mason CJ at 389. Depending on the circumstances, as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution, but if the chance were so low as to be only a far-fetched possibility it would not amount to a real chance: per McHugh J at 429. See also Guo at 576. In determining whether a real chance of persecution exists if the appellant were to return to the country of nationality, the RRT was required to consider what might happen in the future. In their joint judgment in Guo Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said at 578: "The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future." Speaking of Chan's case, Kirby J in Guo said at 587. "Because the future can never be told with certainty, particularly perhaps in the variable and sometimes unpredictable matter of persecution, this court endorsed a test which both permits and requires rational speculation and denies the necessity of the proof of affirmative certainty." In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294 Kirby J said: "There is no suggestion in Chan that this Court intended that the evaluation of past facts (as distinct from the speculation on future possibilities) would be based otherwise than on likelihood [Chan at 422]. The process of determination involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to the assessment of the 'real chances' affecting the treatment of the applicant if he or she were to be returned to China." The present appeal involves an application of these principles to the facts of the appellant's case, and to the place for "speculation" in the evaluation of the facts by the RRT. The RRT had before it information collected at different times and from a number of sources. It had the appellant's original claim for refugee status lodged on 10 April 1991 with a number of documents attached. These referred to his membership of the Fiji Labour Party, his good character, and to events at the time of the coups in Fiji in 1987. A letter from the Fijian Commissioner of Police to the applicant advising him that he had been discharged from the police force at a date after he left Fiji was also attached. There was a statement signed by the appellant taken by an officer of the Immigration Department on 20 March 1991. The appellant was interviewed again by the Department in October 1994 when another statement was taken from him, and he lodged written submissions in support of his original application. In his application to the RRT for review, the appellant provided further information about events which had occurred in Fiji at the time of the coups and until he left the country. On 7 March 1995 the RRT received notification that new solicitors were acting for the appellant, and those solicitors made written submissions and provided additional information. Then, at a hearing before the RRT in September 1995, the appellant and four witnesses nominated by him gave oral evidence. In the course of supporting his claim for refugee status the appellant at some stages alleged persecution for reason of his religion, but at the hearing before the RRT this claim was not pressed. The RRT held that there was no evidence before it that he had suffered persecution in the past for reason of his religion. The RRT accepted the appellant's evidence that he had been a supporter of the Fiji Labour Party ("the FLP") in the period before the 1987 elections. The RRT held that he suffered verbal harassment from senior police officers and army officers who were indigenous Fijians due to his support of the FLP, but never suffered any other harm on that score, either in the period leading up to the 1987 election or the post coup period. The RRT accepted his evidence that he felt that police officers of indigenous Fijian racial background believed he should not, as a police officer, have supported the FLP. However his evidence indicated that he did not suffer any form of mistreatment amounting to serious harm which could be considered persecution in the Convention terms. There was no evidence of continuing harassment of the appellant up until his departure from Fiji in 1989, two years after the coups, because of his support of the FLP in 1987. The RRT held that there is no real chance that the appellant will be persecuted if he returns to Fiji for reason of his political opinion in support of the FLP. The RRT also accepted the appellant's evidence, and that of his wife and son, that the family suffered mistreatment in the immediate post coup period whilst the appellant was absent at work. The appellant's wife gave evidence that on one occasion she was sexually assaulted in her home by army officers. The RRT held that the evidence indicated that this mistreatment was due to the appellant's involvement, as a police officer, in the "naval officer case" to which reference is made below, and not for a Convention reason. However the RRT went on to hold that even if the mistreatment of the appellant's wife and child were for reasons of their race, and not due to the appellant's role as a police officer, there was no real chance that the appellant and his family members would suffer similar mistreatment on return to Fiji. The mistreatment occurred in the immediate post coup period when law and order broke down in Fiji and the army were in control, so that it was difficult for the police to protect people from abuse. Based on information in the files of the respondent's Department concerning the appellant, and in particular in Department of Foreign Affairs and Trade cables prepared in 1994 and 1995, the RRT held that law and order has now been restored in Fiji, that the police are committed to protecting people from abuse, that the police are accountable to parliament, and that the judiciary is independent so that citizens of Fiji can seek police protection from violence and abuse. The RRT accepted evidence from the appellant, provided in written submissions, that he was verbally abused and humiliated by measures taken by Fijian police officers at the time of the coup. He was locked in a cell at times and received verbal taunts. The RRT accepted that this abuse was of a racial nature, but held that there is no real chance that the appellant would be similarly abused, for reason of his race, if he returned to Fiji. The Tribunal supported this finding by reference again to the return of law and order. The appellant did not contend before this Court, that these conclusions by the RRT were not reasonably open on the evidence. The challenge which is now mounted relates to the manner in which the RRT approached the appellant's assertions relating to the "naval officer case". In his evidence before the RRT the appellant had said that the issue relating to the naval officer was the main threat he feared. In his evidence before the RRT the appellant made the following assertions relating to the naval officer. In 1988 he was on annual leave and in plain clothes in the local market. He was with his wife and children buying vegetables. A Fijian in plain clothes suddenly called to him and said: "Go back to India". The appellant could smell liquor on his breath. The Fijian started to push the appellant around and verbally abused him. The appellant arrested him for being drunk and disorderly and escorted him to the police station where he gave the arrested man into the custody of the police officer on duty. Then an incident occurred when the arrested man fell down some steps and suffered a cut above his eye. Other police officers came to the appellant's assistance, and there were a number of witnesses. At the time the arrested person gave a false name but it later transpired that he was a naval officer. The appellant says that the naval officer made a complaint that the appellant had assaulted him. The allegation about the assault was still to be investigated by the police when, about two months later, the appellant heard from the police that the naval officer had been involved in a family brawl that put the officer into hospital, and that he died from injuries received in that brawl. The appellant said that the police did not put to him allegations about the nature of the naval officer's injuries which caused his death. The investigations into the alleged assault by the appellant continued after the death of the naval officer. The enquiries were conducted by an Assistant Commissioner of Police, who was threatening to the appellant and to his colleague who had witnessed events in the police station. The appellant gave evidence that the Assistant Commissioner urged the witnesses to change their stories. At one point the appellant said that the witnesses had not changed their stories, but at another point said he did not know whether they had done so. He claimed that he feared that the police would fabricate evidence, and that he would be charged with murder of the naval officer. He therefore made arrangements to leave Fiji. He arranged one month's leave and travelled to Australia. He did not return. By letter written to him about two months after he went on leave he was advised that he had been discharged from the police force. The allegations made before the RRT by the appellant had not been made in his initial application for a protection visa, and his evidence on this topic differed in significant respects from information he had earlier given to the Department. Before the RRT the appellant's brother-in-law and sister-in-law gave evidence. The brother-in-law, who is a naturalised Australian, said that he had returned to Fiji in 1993, 1994 and 1995, and on each occasion people who he took to be police officers had approached him and asked if he knew the whereabouts of the appellant. The appellant's sister-in-law had accompanied the brother-in-law to Fiji on one of these visits and also gave evidence about them being approached by men inquiring about the appellant's whereabouts. The appellant argued that this evidence confirmed his fear that the police were seeking him, and that he would be falsely charged with murder on fabricated evidence should he return to Fiji. He contended that this action would be taken against him because of his race. The RRT perceived there to be a conflict between the evidence of the brother-in-law and the sister-in-law on a point of detail which it considered reflected on their credibility. The RRT, on this basis, rejected their evidence, but went on to observe that even if it accepted their evidence, it indicated no more than that questions had been asked about the appellant's whereabouts. Their evidence did not indicate why the questions were asked, nor that the appellant faced a real chance of being harmed for a Convention reason on return to Fiji. The RRT rejected the appellant's evidence that he was discharged from the police force for disciplinary reasons associated with the allegation of assault on the naval officer. It found that the date of the discharge letter, and the section of the relevant Act cited as the authority under which his discharge was effected, suggested that he was discharged because he had not returned to work after his period of authorised leave. The RRT discussed aspects of the appellant's evidence which it considered to be implausible. In particular the RRT rejected as not credible an explanation offered by the appellant for his failure to disclose his fear that he would be charged with murder in his initial application and interview for a protection visa. The RRT expressly rejected the appellant's evidence that the police were seeking to blame him for the death of the naval officer. The RRT went on to conclude that: "... the Applicant's evidence viewed at its highest by the Tribunal, supports a finding that the Applicant may face a charge of assaulting the naval officer whilst in custody. However, the Tribunal considers that the chance that the Applicant is facing such a charge is remote. The Tribunal so finds on the basis of the Applicant's evidence. [The RRT then discussed the evidence] ... The Tribunal therefore finds that the Applicant's evidence supports a finding that there was no evidence, disclosed by the police investigation, which would implicate the Applicant with assaulting the naval officer. As the Tribunal has rejected the Applicant's evidence that he faces a charge of murder, on fabricated evidence; and as the Tribunal finds that, at its highest, the Applicant's evidence indicates that he may have been investigated for an allegation of assault, but the available evidence does not support the allegation that the Applicant was guilty of an assault, then at the most the Applicant would face on return to Fiji, possibly, an incomplete investigation of an assault charge. The Tribunal considers that there is no real chance that the Applicant would be persecuted for reason of this allegation or investigation of assault. Information indicates that the Applicant could rely on the judiciary and legal system of Fiji to make available to him the opportunity to present a defence to such a case, including the opportunity to challenge any fabricated evidence...The Tribunal therefore finds that the chance that the Applicant would be persecuted, for reason of the incident over the naval officer which occurred before he left Fiji, is remote." In light of the finding last mentioned, the RRT said that it did not have to determine whether the appellant's fear on this ground was Convention related. The RRT concluded its lengthy reasons for decision by saying that it found that there was not a real chance that the appellant, or his wife and children, would suffer persecution for a Convention reason on return to Fiji, and that the appellant was not a refugee. Before the primary judge it was contended on behalf of the appellant that the RRT had erred in the manner in which it considered whether there was a "real chance" of the appellant being persecuted if he were to return to Fiji. It was argued that the RRT erred in taking a global approach to the evidence; or alternatively that it had approached the evidence in a "cheese paring fashion, item by item being excluded from [the] hypothesis". Both submissions were rejected. The primary judge also rejected two other submissions. The first was that the decision reflected an error of law because the RRT was wrong to think that there was a conflict between the evidence of the brother-in-law and the sister-in-law. The second was that the RRT failed to refer expressly to material submitted by the appellant to the effect that the Fijian Constitution reflected inherent racial unfairness, and consequently failed to speculate as to the possibility that the appellant and his family would not receive the full protection of the machinery of government in which their racial group was specifically discounted in representation and power. On the first submissions, her Honour pointed out that the RRT's rejection of the evidence of the brother-in-law and sister-in-law had no bearing on the ultimate decision and was at best an immaterial error, even if it could be brought within the ground of review prescribed in s 476(1)(g) of the Act. On the second submission, her Honour said that she did not accept that the RRT had not given proper consideration to the possibility that the appellant and his family would not receive "the full protection of the machinery of government". Before this Court the amended notice of appeal raises only one ground of appeal, namely that the primary judge was in error in finding that the RRT had not erred in its approach to considering whether it was satisfied that there was a "real chance" that the appellant or his family would suffer persecution on a Convention ground if returned to Fiji. The particulars given of this ground are as follows: "(a) Her Honour did not apply a requirement of speculation to the approach of the Tribunal to the applicant's evidence. This was a requirement with respect to the exclusion of the evidence of the two relatives. Similarly, Branson J has allowed the Tribunal to assert the 'political welfare' of the applicant and the family in Fiji when there was evidence to sustain speculation of a substantial basis for a well founded fear that the Fijian political structure at the time of the decision of the Tribunal provided no safeguard to those of Indian extraction. (b) Consequent on (a) above, her Honour did not correctly measure the respondent's rebutting evidence as to its direct relevance or analogous quality with the applicant's evidence. (c) Consequent on (a) and (b) above, her Honour did not apply the correct legal test to the evidence before the Tribunal. It was not enough that the Tribunal rely on the respondent's evidence apparently contrary to the applicant's claim that he had a well-founded fear of persecution because of a change in Fijian conditions. The Tribunal is required to speculate as to whether a relevant event might or might not occur in the future. Such speculation as to whether a fear is well founded is sound if it has a substantial basis in evidence. The Tribunal did not so speculate." [Page citations in judgment of Branson J omitted, emphasis reproduced from original.]