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[2001] FCA 309
Federal Court of Australia
2001-03-29
Stone JJ
Original judgment source is linked above.
Introduction 1 This is an appeal against the judgment of a judge of this Court of 2 November 2000 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 9 February 2000. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse Mr Julio Abel Ruiz Puerta ("the appellant") and his de facto wife ("the wife") protection visas. The appellant arrived in Australia on 20 November 1997 and lodged an application for a protection visa on 7 January 1998 which was refused by the delegate on 7 April 1998.
The background 2 The following reflects findings made by the Tribunal about the appellant. He was, at the time of the Tribunal's decision, a thirty-five year old former military engineer. The nature of the activities the appellant had undertaken as a member of the Peruvian Armed Forces was described by the Tribunal: "The applicant claimed to be a Peruvian citizen and former military engineer with specialist counter-terrorist qualifications who spent his army career fighting terrorism in remote areas and in Lima. The Tribunal accepts these claims, which he consistently made and are supported by documentary evidence. The applicant claimed that his role in the army was a visible one that would have made him identifiable to terrorists. He claimed that having won, in 1993, a publicised award for his efforts in fighting terrorism further increased his visibility. The Tribunal accepts these claims. The applicant provided a consistent, plausible and detailed picture of his role in the army and provided evidence of his award." 3 It was against this background that the appellant claimed before the Tribunal that there had been several incidents or episodes which occurred before he arrived in Australia which indicated he was of interest to terrorists in Peru. The Tribunal accepted as "possible" one episode in September 1990 when the applicant had believed he was the subject of attention by people behaving suspiciously. The Tribunal, however, rejected other aspects of the appellant's account including a claim that he and his wife had received threatening telephone calls and pamphlets from August 1994 through 1995 and 1996. The Tribunal also rejected the appellant's account of an attempt to kidnap him in June 1997. 4 In a section of its decision entitled "Findings and Reasons", the Tribunal said the following: "In sum, while the Tribunal accepts that the applicant was involved in the fight against terrorism in the course of his work as an army engineer, and accepts that he may have been under terrorist surveillance in 1990 after his return from a posting in Ayacucho, it does not accept that he continued to be targeted by terrorists. The Tribunal finds that the evidence tendered in support of the such claims [sic] to lack credibility. The Tribunal finds that, objectively, the chance that the applicant may be targeted by terrorists if he were to return to Peru for reason of his past service with the Peruvian armed forces is, at best, remote." 5 Immediately preceding this passage was a section in the Tribunal's decision dealing with independent country information concerning Peru and the activities of terrorists in that country. After setting out, in a summary way, some of what was disclosed by that country information, the Tribunal said: "The applicant's adviser drew the Tribunal's attention to information dating back to mid 1997 which [sic] terrorists were still responsible for numerous killings although, even then, the report referred to a decline in threat posed by terrorism. He also drew the Tribunal's attention to the fact that terrorism had claimed 30,000 lives up until 1993. While there is no dispute with this fact, the relevant question involves an estimation of the threat posed by terrorist[s] on the applicant in the reasonably foreseeable future. The submission referred to information from 1997 indicating that the SL has the could locate [sic] a person of particular interest to them if they so wished but the same source goes on to indicate that the probability of an individual being singled out was low especially in urban areas. The latest information (p20-21) indicates that terrorists in Peru are not in a position of carrying out reprisals except in some very limited remote areas of the country and that there is no evidence of them carrying out reprisals against particular individuals. In view of the evidence, the Tribunal finds that the chance that the applicant will be harmed by terrorists is, at best, remote." 6 It can be seen from these passages that the Tribunal recognized that the appellant might be harmed were he to return to Peru but concluded the chances of that occurring were "remote". It is this finding that was central to the issue raised in this appeal. In this context mention should be made of a passage in the introductory part of the Tribunal's decision in which the Tribunal discussed the applicable law. It said: "Fourth, an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution" for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent."
The judgment of the primary Judge and the issue on appeal 7 The appellant amended the notice of appeal at the commencement of the hearing to raise one issue only. It was: "His Honour erred in failing to hold that the Tribunal applied the wrong test to determine that the first appellant did not have a 'well founded fear of persecution'." It is not clear whether the issue, as argued before us, was raised before the learned primary Judge. It may be that the issue was only raised elliptically as the primary Judge appears not to have dealt with the issue as it has been argued in this appeal. 8 The submission made by the appellant has two aspects. The first is that in the passage quoted in para 4 above, the Tribunal concluded that the chance of the appellant being targeted by terrorists is, at best, remote. This, it was submitted, involved the Tribunal imposing a test involving consideration of whether the chance of harm was remote or not. It was submitted that whether a fear of persecution is well founded requires consideration of whether there is a substantial basis for the fear. This was illustrated by the statement of principle of the High Court in the joint judgment of Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572: "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." 9 Save for one matter which we mention shortly, the approach of the Tribunal was, in our opinion, unexceptionable. Any analysis or discussion of whether a person has a well founded fear is likely to involve the use of words other than the words of the Convention. Plainly enough, the use of other words should have the effect of not erecting a principle or test that does not conform with the requirements of the Convention. Nevertheless, words or expressions such as "remote", "insubstantial" or "far fetched possibility" are not uncommonly used in the discourse about the proper approach to be taken in determining whether a fear is well founded. This can be illustrated by the observations of members of the Court in Chan v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379. At 389 Mason CJ said: "But I prefer the expression 'a real chance' because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen (1986) 161 CLR 10 at p 21, per Mason, Wilson and Deane JJ." (Emphasis added.) To similar effect were the observations of Dawson J at 398: "In Reg v Home Secretary; Ex parte Sivakumaran [1988] AC, at p 1000the House of Lords in considering the Convention concluded that for an applicant's fear to be well-founded 'there has to be demonstrated a reasonable degree of likelihood of his persecution for a Convention reason'. That would seem to be a more restrictive test than that suggested, although hardly dogmatically, by Stevens J in Cardoza-Fonseca. Whilst alternative verbal formulations of the correct test may be useful in identifying shades of meaning, none can ever offer complete precision. Nevertheless, for the sake of uniformity of approach I should express my preference for a test which requires there to be a real chance of persecution before fear of persecution can be well-founded. It is sufficient to justify that choice to point to the fact, as does the Chief Justice in his reasons for judgment, that it is a test which has been recently expanded by this Court in another context in Boughey v the Queen (1986) 161 CLR 10, at p 21, in a manner which is helpful in the present context. A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent." (Emphasis added.) Toohey J dealt with the same issue in the following terms at 407: "The test suggested by Grahl-Madsen, 'a real chance', gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. That is not to say that its application will be easy in all cases; clearly, it will not. It is inevitable that difficult judgments will have to be made from time to time." (Emphasis added.) McHugh J put it slightly differently at 429: "The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an 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." (Emphasis added.) 10 In our opinion the use by the Tribunal of the word "remote" does not, in context, signify any error. The Tribunal was doing nothing more, in our opinion, than investigating, as it had to, whether the fear of persecution not only existed (which it earlier found was the case) but, additionally, whether it was well founded. No error of law can be inferred from the language used or the approach apparent in the passages earlier set out. 11 The specific matter adverted to at the beginning of paragraph 9 above, concerns a submission made by the appellant that a matter the Tribunal should have considered, but did not, in deciding whether the fear of persecution was well founded, was the gravity of the harm that the appellant would be exposed to if he were to return to Peru. That is, he was at risk of political assassination. We were referred to no authority nor any writing on the subject which indicates that the gravity of the risk is to be considered in the balance when determining whether the asylum seeker has a well founded fear of persecution. Plainly enough, the harm to which the asylum seeker might be exposed upon return to the country of nationality is of central importance in determining whether the asylum seeker is at risk of persecution. As is now settled in this country, "persecution" involves a serious punishment or penalty or a significant detriment or disadvantage: see Chan at 389 and 429-30. While ultimately it is necessary to determine whether an asylum seeker has a well founded fear of persecution in a holistic sense, there are, nonetheless, discreet elements that call for consideration. One is whether the threat or risk to which the asylum seeker might be exposed can be properly characterized as "persecution". Another is whether the asylum seeker fears that persecution and whether the fear is a well founded one. The High Court's decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (particularly at 572) established that it is acceptable to use terms such as "a real chance", "based in substance", "not far-fetched" or "not remote" as explanatory of "well founded" although not as a substitute for it. These terms clarify the meaning of well founded. If there is no real chance that the applicant will be persecuted, or there is no real basis in substance for the applicant's fear, if it is remote or far-fetched then the fear is not well founded. This shows, in our opinion, that determining if a fear is well founded does not call for further assessment of the nature of the risk or threat. 12 The appeal should be dismissed and the appellant should pay the respondent's costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Solicitor for the Respondent: Australian Government Solicitor
Puerta
Minister for Immigration and Multicultural Affairs
(1990) 169 CLR 379
(1997) 191 CLR 559
(1986) 161 CLR 10