Puerta v Minister for Immigration and Multicultural Affairs

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."