Morato v Minister for Immigration, Local Government & Ethnic

"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 county; ..."

The relevant issue before the Tribunal was whether the applicant had a well‑founded fear of being persecuted for reasons of membership of a particular social group or political opinion. Applicant's background The applicant is a 36 year old Sinhalese man married with two children but his wife and children remain in Sri Lanka. The event which ultimately crystallised his decision to leave Sri Lanka was the kidnapping of Mr Iqbal in January 1990. The applicant had been employed by, and was a close associate of, Mr Iqbal for some time prior to that date. It was not established who had kidnapped Mr Iqbal but there were reasons to believe it was the Janatha Vimukthi Peramuna ("JVP"). That was the applicant's belief. Mr Iqbal and his companies had been involved in a number of commercial activities, some of which were associated with members of the United National Party Government at the time. Mr Iqbal had built up substantial wealth as a leading businessman and as the applicant was employed by him and was his close associate, the applicant believes that such connections identified him closely with Mr Iqbal. The applicant believed that the State was not able to provide either Mr Iqbal or himself with protection from the JVP. He says that on a number of occasions he was followed and incidents occurred (which I need not analyse but which relate to a threat whilst in his car, visits to Mr Iqbal's home, his arrest for changing car number plates and a man with a cat‑eye being seen at his children's school) which made him fear for his safety. The applicant feared that sooner or later he would be taken by the same people who were responsible for Mr Iqbal's disappearance and as a result, he left Sri Lanka in April 1990. The applicant fears that if he returns to Sri Lanka the JVP will harm him because of his background and former activities involved with Mr Iqbal's commercial activities and activities with former Government ministers. Mr Iqbal had been involved in a money laundering business where former ministers of the United National Party ("UNP") invested "black money" with his employer and used their influence to enable him to land goods in Sri Lanka at lower charges and lesser duties than would otherwise have been charged. The Tribunal accepted that the applicant was knowingly involved in this operation for a period of five years. The applicant said that Mr Iqbal, by virtue of his commercial activities and associations, had a UNP Government profile which attracted the attention of the JVP. The JVP had been involved in a campaign of violence in the 1980s and had launched a concerted assault on the State between 1988 and 1990 but according to the evidence before the Tribunal the influence and activities of the JVP had dissipated by 1992. The applicant said that the present government was opposed to the UNP and wanted to expose the former government and its supporters. The present government had appointed a commission to enquire into disappearances during the time of the former government and the applicant was concerned, because of his association with Mr Iqbal and, in turn, Mr Iqbal's association with the former UNP government and its ministers, that if he returned to Sri Lanka he would be wanted by the police, persons associated with Mr Iqbal's disappearance and maybe the army. He claimed therefore that he had a well‑founded fear of persecution for reason of his imputed political opinion (identification with the former UNP government and its ministers) and his membership of a social group namely people who made money quickly between 1988 and 1990 by activities which raised the ire of the JVP. Decision of the Tribunal The Tribunal accepted that at the time the applicant came to Australia he had a well‑founded fear of persecution from the JVP because of his association with his employer. The Tribunal then considered whether that position had changed by the time of its determination. There was evidence before the Tribunal as to the activities and influence of the JVP after 1990. The Tribunal made two critical findings on the facts before it in relation to the JVP. The first was: "In the light of what has happened to the JVP in recent years, however, the prospect of the applicant encountering any harm from the JVP in the future seems remote and is not well-founded" (page 17).

The Tribunal also said: "The evidence concerning the current future threat posed by the JVP indicates that there is no longer an objective basis for fear of it ... The evidence before the Tribunal concerning the current position of the JVP indicates, however, that it has been decimated militarily and that there is not a real chance that it will again emerge as a potent and violent force" (page 19). The Tribunal had before it material in relation to the political and security situation in Sri Lanka since the late 1980s and the Tribunal accepted that "the applicant, in common with many other Sri Lankans, feared for his safety during the JVP insurgency in the late 1980s". The Tribunal then analysed the material which was before it in relation to the activities and circumstances of the JVP subsequent to the applicant leaving Sri Lanka. It is not necessary to analyse the material which was before the Tribunal in any detail. Suffice it to say that there was material which enabled the Tribunal to find that the activities of the JVP had been reduced, that the present government would move against the JVP and that there was now very little, if any, likelihood of the JVP ever emerging again. These findings led the Tribunal to the conclusion that the JVP was no longer a threat, that any fear of persecution at the hands of the JVP was no longer well‑founded and that there was not a real chance that the JVP would again emerge "as a potent and violent force". The Tribunal then considered the submission that the applicant belonged to a particular social group and concluded that the applicant did not, by reference to the test set out by the Full Federal Court in Morato v Minister for Immigration, Local Government & Ethnic Affairs (1992) 111 ALR 417, 420-422, qualify as a member of a particular social group. The membership of the social group put to the Tribunal was "persons who have lived and become fat through corruption and targeted by the JVP". The Tribunal concluded that such persons "have an abstract social status resulting from a level of wealth who are targeted by members of JVP (and) are not distinguished by any intrinsic or social characteristics". The Tribunal concluded that the grouping was so broad and lacking in cohesion or homogeneity that it did not constitute a "particular social group". The Tribunal considered the applicant's claim that he faced a strong chance of being silenced by "unknown persons" in Sri Lanka due to his involvement in the black money laundering scheme. The Tribunal concluded that any involvement in that scheme stemmed from commercial motives and that although it involved bribery, corruption and patronage of UNP ministers in the former government, the applicant's actions were essentially economic rather than political in character and therefore did not disclose a Convention reason by reference to the holding of a political opinion. The Tribunal held that if the applicant was prosecuted or punished in relation to such activities he would not be punished otherwise than in conformity with the law and would not be differentially at risk due to any Convention reason. The Tribunal also found that even if the applicant was to return to give evidence to the Commission as to the disappearance of Mr Iqbal there would not be a real chance that he would be targeted by the parliamentary opposition or the police for a Convention reason. Grounds of Review Real chance of persecution Of the three grounds specified in the application only the first ground was relied upon which was that: "the decision involved one or more errors of law or were (sic) an improper exercise of power". The applicant's primary submission was that in determining whether the applicant had a well‑founded fear of persecution for a Convention reason the Tribunal had to determine whether there was a real chance of such persecution but it failed to engage in the actual speculation required by the test. Mr Appadurai, who appeared for the applicant, submitted that the Tribunal approached the matter from a point of view which was influenced by the applicant's reliance on changed circumstances in Sri Lanka since his arrival. When the applicant had left Sri Lanka there was a real chance of persecution by the JVP but the Tribunal did not accept the applicant's evidence that he now felt that the threats earlier made to him might have come from persons other than the JVP such as members of the army, police or persons organised by powerful members of the UNP. The Tribunal considered that this evidence was used by the applicant to enhance his claims having regard to the fact that the JVP was no longer a threat. It was submitted that there was no evidence or other material before the Tribunal from which it could have been reasonably satisfied that there was not a real chance that the JVP would again emerge as a potent and violent force or that the applicant's fears in relation to the other persons were without foundation and used to enhance the applicant's claims and that any harm he might suffer would be in the nature of a potential prosecution and punishment for criminal behaviour rather than persecution for a Convention ground. It was submitted that by making these findings the Tribunal incorrectly applied the "real chance" test as there was no evidence from which it could have reasonably been satisfied that these matters had been established. Putting the submission this way is very similar to submitting that either there was no evidence to justify the findings or that on the evidence before it the Tribunal should have reached different findings. The ground of "no evidence" in s 476(1)(g) of the Act was not relied upon as a ground and Mr Appadurai rather submitted that having regard to the dire consequences which would be visited upon the applicant if he returned to Sri Lanka the Tribunal needed to be satisfied with a reasonable degree of satisfaction before making the findings it did. Mr Appadurai relied upon the dicta of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 where His Honour explained that the reasonable satisfaction which a Tribunal must have in relation to findings cannot be established independently of the nature and consequences of the facts to be proved. Dixon J said: "The seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue is being proved to the reasonable satisfaction of the Tribunal ... It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained".

Mr Appadurai submitted that the Tribunal should only have made findings in relation to the applicant if it had "a high degree of satisfaction" that those findings were established and he referred to Tarasovski v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 570, 573. The difficulty with this submission is that it does not appear from the reasoning of the Tribunal that it made its findings on the balance of probabilities or that it did not consider that the seriousness of the matter required a high degree of satisfaction (cf: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 450). The Tribunal (Decision pages 17 to 19) set out in some considerable detail the evidence that was available to it in relation to the activities and state of the JVP subsequent to 1989. It was submitted, however, that it chose to decide that the JVP had been decimated on inconclusive evidence. However, there was evidence to this effect from a number of sources before the Tribunal. It cannot be said the evidence before the Tribunal was inconclusive; and there was certainly evidence before the Tribunal which justified the Tribunal's conclusions that there was no longer an objective basis for fear of the JVP and that it had been decimated militarily and that there was not a real chance that it would again emerge as a patent and violent force. In Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 Foster J (191 - 194) asked the question "what standard of proof should be applied in respect of these events" referring to events alleged to give rise to a fear of persecution. He was concerned to ensure that possibilities were not excluded from consideration by the adoption of an inappropriate burden of proof. He concluded his analysis by saying (194): "However, in cases where only a real possibility need be shown, care must be taken that an over stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted." Foster J was in general agreement with the steps which Einfeld J had set out as the approach to be taken by a decision‑maker (193). Einfeld J said (174): "The 'real chance' test is not concerned with proof of or preference for alternate theses on the balance of probabilities. Rather, once the facts indicate that the possibility of persecution is not remote, there will be a real chance for the purposes of the test unless it is disproved". On a fair reading of the Tribunal's reasons and analysis of the evidence it followed the approach set out in Guo Wei Rong. It did not, in terms, minimise the seriousness of the issues before it nor did it express itself in terms of a burden of proof inconsistent with asking whether the evidence disclosed a possibility of persecution which was not remote. In my view the Tribunal reached its findings in a manner which indicated it had asked the correct question and had reached a degree of satisfaction consistent with the seriousness of the issues before it. Mr Appadurai recognised the difficulty confronting him because of the existence of evidence that the JVP activities had been reduced and that the JVP had been decimated but said that although there was some evidence that the JVP had been decimated there was other evidence that it had emerged and that accordingly it required a high degree of satisfaction before being satisfied to this effect. This submission is no more than a submission that the Court is being asked to revisit the facts and make different findings of fact notwithstanding the fact that there was evidence before the Tribunal on which it made the findings it did. It is not put that there was no evidence on which the Tribunal could have reached its conclusion and it is not put that the Tribunal did not correctly identify the correct test to apply. It is not a ground of review open to the Court under s 476 of the Act that it can or should revisit the facts as found by the Tribunal except in very limited circumstances which do not exist in this case. Mr Appadurai submitted that the Tribunal approached the matter with a "mind‑set" such that it did not make the required speculation as to whether there was a real chance of persecution. It was submitted that the real chance test required relevant material to be considered and irrelevant material to be excluded so that relevant material was excluded there would be an incorrect application of the real chance test. Mr Appadurai relied on the judgment of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293 where he said: "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 the 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 weight of the final conclusion, based upon what seems 'slightly' 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, insofar as they are said to give rise to a 'real chance' of persecution." In my view the Tribunal carried out this task and undertook the process identified by Einfeld J and Foster J in Guo Wei Rong (supra). It set out in some detail the evidence before it in relation to the activities of the JVP and there was certainly evidence before it which entitled it to reach the conclusion that:

"The evidence concerning the current and future threat posed by the JVP indicates that there is no longer an objective basis for fear of it" (page 19). The Tribunal, in my view undertook the required speculation and asked whether there was a real chance of persecution which was not fanciful, too remote or extreme. There is no suggestion in the decision that the Tribunal had a mind‑set in the sense that it said "because you have put the material before the Tribunal, you are exaggerating". The nature of the evidence before the Tribunal was such that, having heard from the applicant, the Tribunal was entitled to form a view on the applicant's credibility which included a conclusion that the applicant was exaggerating his claims after the substantial changes which had occurred in relation to the JVP. Although the Tribunal thought that the applicant was exaggerating his claims between the date he applied for refugee status (May 1990) and the Tribunal hearing (July 1995) it made that observation in the context of identifying what it said were substantial changes which occurred in relation to fear of the JVP to which it said it would refer. Later in the reasons for decision it set out in some detail the evidence from which it concluded that there was no longer an objective basis for fear of the JVP. In other words, the Tribunal did not simply reject the applicant's evidence, it affirmatively identified and analysed evidence which supported its findings.

I consider the submission that there was an error of law in relation to the manner in which the Tribunal applied the real chance test to the facts as found by it to be ill‑founded. There was evidence before the Tribunal on which it could find as it did. If I were to reach a different conclusion as to those facts I would fall into the error identified by the majority of the High Court in Wu Shan Liang (supra) at page 272: "... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision‑maker upon proper principles into a reconsideration of the merits of the decision". (See also Kirby J at 291). Insofar as the submission of the applicant is that the Tribunal took into account irrelevant considerations or failed to take relevant considerations into account, those grounds are precluded as grounds of review by s 476(3). Reliance upon an incorrect interpretation of the law or an incorrect application of the law to the facts as found, as allowed by s 476(1)(e) does not include a complaint that irrelevant facts were taken into account or that relevant facts were not taken into account. It was submitted that the application of the real chance test includes the requirement that the Tribunal must take into account every relevant fact put before it but s 476(1)(e) does not allow any disturbance of the facts as found by the Tribunal. The real chance test however does require speculation on the chance of persecution emerging from a consideration of the whole of the material before the Tribunal (Wu Shan Liang at 293 per Kirby J). In my view the Tribunal carried out this task. The applicant relied upon the judgment of Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391 for the proposition that there had to be compelling evidence that facts which existed when the applicant came to Australia do not exist any more. However, in the words of Mason CJ there were before the Tribunal "facts indicating a material change in the state of affairs in the country of nationality" at the time of the decision. It was submitted that the Tribunal could not just wipe out the possibility of future JVP activities such as to provide a basis for a well‑founded fear of persecution. However, putting the submission this way does not identify an error of law and, in any event, there was evidence to support the findings of the Tribunal. In my view the Tribunal did not wipe out the possibility of future JVP activities. Rather it engaged in speculation as to what the future held for JVP activities and concluded that any chance of persecution as a result of them was remote. The applicant sought to rely upon certain passages in the transcript of the evidence before the Tribunal in support of the submission that the Tribunal had a mind‑set which was sufficient to infect the manner in which the relevant "real chance" test in Chan was applied. Mr Appadurai disavowed an allegation or ground of actual bias. Accordingly there is no basis for considering the evidence before the Tribunal and that evidence is not relevant to any ground of error of law. The applicant then submitted that the Tribunal had an obligation to act in accordance with the substantial justice of the matter in accordance with s 420(2)(b) and that that prescription was fundamental to the Tribunal's role. Although Mr Appadurai said that he did not seek a review of the merits of the Tribunal's decision he did submit that the Tribunal had committed an error in law in not proceeding in accordance with the substantial justice of the matter having regard to the manner in which the interview was conducted with the applicant. However, any submission to that effect is tantamount to a submission of bias which was disavowed and, in any event, for the reasons which I have set out in Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (unreported, Goldberg J, 6 May 1997) a breach of s 420(2)(b) does not give rise to a ground of review under s 476 of the Act. (See also Thanh Phat Ma v Billings (1997) 142 ALR 158, 166; Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474, 485; Mohideen v Minister for Immigration and Multicultural Affairs (17 April 1997, Olney J, unreported); Dai Xing Yao v Minister for Immigration and Ethnic Affairs (17 April 1997, Sackville J, unreported)).

It was put in the alternative that the manner in which the interview was conducted showed a mind‑set and paid only lip service to the relevant "real chance" test. However, the reasoning of the Tribunal does not bear this out. Membership of a social group The relevant social group identified by the applicant was persons who had benefited from associations with the UNP. It was submitted that the Tribunal had applied an excessively restrictive test of what constituted membership of a social group and it was said that its test was not supported by the decision in Morato (supra). It was submitted that the recent decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 required a broad definition of "a particular social group". The applicant relied on this decision for the proposition that a particular social group could be identified by reference to persons who shared a common distinguishing characteristic which was the reason for the persecution which they feared (Brennan CJ, 337). Dawson J put the matter this way: " 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" (341). Kirby J also propounded a broad approach which required the members of the group to be recognisable and definable by reference to common pre‑existing features (389). It was submitted that the Tribunal had erred in its determination of what was required for the relevant particular social group because it had looked at what the members did rather than what they were. However, as Dawson J pointed out in Applicant A (supra, 342) the distinction between what a person is and what a person does may sometimes be an unreal distinction and one should not take too far the requirement in Morato that the persecution be on account of "what a person is - a member of a particular social group - rather than upon what a person has done or does". The Tribunal's conclusion was that the applicant was not a member or an associate of a social group namely "persons who have lived and become fat through corruption and targeted by the JVP". However, it is difficult to identify the distinguishing characteristic which is the reason for the persecution. In short, there is no common element between the person said to be the members of the group unless it be the acquisition of wealth through corrupt means. As Mr Downing, who appeared for the respondent, submitted, there was no uniting factor in wealth unless it be the reason for the persecution. However, in such circumstances where the persecution becomes the reason for the existence of the group that persecution is not the appropriate distinguishing factor. As McHugh J pointed out in Applicant A (supra, 358): "The concept of persecution can have no place in defining the term 'a particular social group'. While decisions that have sought to apply the ejusdem generis principle to discern the meaning of 'particular social group' are problematic because it is difficult to identify a genus common to 'race, religion, nationality ... [and] political opinion', one factor common to these four categories is that the fact or fear of persecution plays no role in understanding their content." I do not consider that acquisition of wealth through corrupt means is a characteristic or element which unites people or enables them to be identified by a common feature which makes them a definable group in society. In any event, the applicant is one stage removed from this group as he only claims to be an associate of a member of the group. It is even more difficult, if not impossible, to identify a common element or characteristic binding together persons who are associates of persons who have become wealthy through corruption. The Tribunal made no error of law when it concluded (page 20) that: "The grouping is so broad and lacking in cohesion or homogeneity that it does not constitute a 'particular social group'". Nothing in the judgments in Applicant A (supra) requires a different conclusion. Was there evidence to support the decision? In relation to two particulars of the errors of law specified by the applicant reliance was placed upon s 476(1)(g) namely that there was no evidence or other material to justify the making of the decision. However s 476(4) does not allow that ground to be available unless: "The person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established." It was said that in disregarding the instability and the volatile political situation which sets the pattern for the immediate foreseeable future in Sri Lanka, the Tribunal had erred in deciding that the JVP has been decimated militarily and that there is not a real chance that it will again emerge as a potent and violent force. It was also said that the Tribunal wrongly concluded that the acts from which the applicant feared potential persecution and punishment derived essentially from criminal commercial motives and that any punishment would be in conformity with the law of the land for the commission of a crime and that there was no evidence as to any crime being committed and this being investigated by the authorities. These submissions proceed on the basis that there was no evidence to justify the Tribunal's conclusion. However, so far as the first particular is concerned there was evidence before the Tribunal upon which it could find that the JVP had been decimated militarily and that there was not a real chance that it would again emerge as a potent and violent force. Similarly, the nature of the evidence about the commercial activities in which the applicant had been involved, albeit with the connivance or support of governmental ministers, was such as to entitle the Tribunal to conclude that any punishment was not for a Convention reason.

In any event, these submissions founder on the proposition that the ground asserted can only be made out if the Tribunal was required by law to reach the decision only if a particular matter was established and there was no evidence from which the Tribunal could reasonably be satisfied that the matter was established. As Olney J pointed out in Tho Xuan Doan v Minister for Immigration, Local Government & Ethnic Affairs (unreported, 9 April 1997) the ground referred to in s 476(1)(g) will rarely if ever, be available to an unsuccessful applicant before the Tribunal. Although one can identify particular matters which are to be established in order to find that a person is a refugee (Article 1A(2) of the Convention), it is rare that one can identify any particular matter required by law to be established in order to conclude that a person is not a refugee. One such matter may be found in Article 1E of the Convention but such a situation is not relevant in this case. The application will be dismissed with costs. Counsel for the applicant: Mr R Appadurai Solicitors for the applicant: Ravi James & Associates Counsel for the respondent: Mr R Downing Solicitors for the respondent: Australian Government Solicitor

Date of Hearing: 9 April 1997 Date of Judgment: 6 May 1997

I certify that this and the preceding twenty‑two (22) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg Associate: Date: 6 May 1997