Ratnayake, Sudharma Laksman Bandara v Minister for Immigration & Multicultural Affairs [1998] FCA 1141

Federal Court of Australia|1998-09-14|Before: Ryan J

REASONS FOR JUDGMENT This application was made to the Court pursuant to s 475(1)(b) and s 476(1) of the Migration Act 1958 ("the Act"). The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the RRT") which affirmed a decision by a delegate of the respondent not to grant a protection visa to the applicant. The applicant, a citizen of the Republic of Sri Lanka, arrived in Australia on 7 October 1994. On arrival he was granted a visitor entry permit and on 7 November 1994 he filed an application pursuant to s 36 of the Act for a protection visa. On 17 July 1995 a delegate of the respondent refused to grant a protection visa to the applicant. On 7 May 1996, the RRT made a decision affirming the decision not to grant a protection visa to the applicant, and published its reasons for decision. It is this decision of the RRT which the applicant seeks to review.

THE APPLICANT'S CLAIMS AND EVIDENCE The applicant was admitted to practise as a lawyer in Sri Lanka in 1988. He practised principally in the field of criminal law and also acted in a small number of human rights cases. Until mid-1993 most of the applicant's clients were Sinhalese. However, after that time, following the introduction of anti-terrorism legislation in Sri Lanka, the applicant, who had always sympathised with Tamils, began to act increasingly for Tamil youths suspected of being involved with or supporters of the Liberation Tigers of Tamil Eelam ("the LTTE"). The applicant claimed that, against advice from colleagues and others, he continued his work with members of the Tamil community and built up a good practice. He further claimed that, on 10 August 1994, he gave shelter to two Tamil youths, one of whom was, at the time, his client. The applicant alleged that on the next evening he was taken from his house by two plainclothes police to a destination in Colombo where he was interrogated for approximately three hours about his professional involvement with Tamils and about having given shelter to suspected LTTE supporters. The applicant claimed that, during this interrogation, he had his beard pulled, he had been hit on the side of the head with a book and had been burned on the hand with a cigarette for which he later required medical attention. According to the applicant, he did not inform anyone except his wife of this incident because he feared police reprisals. After the alleged incident with the police, the applicant claimed that, although he continued to represent Tamils in cases pending, he did not accept any new retainers for Tamil clients. He also asserted that his car windscreen and head lights were damaged and that his house was stoned at night although he did not know who had been responsible. He further alleged that, after he had arrived in Australia, the police had visited his house in Sri Lanka on a number of occasions and had taken documents. The applicant claimed that he would be killed upon his return to Sri Lanka. At the reconvened hearing before the RRT on 28 February 1996, the applicant made a long statement detailing the current situation in Sri Lanka. In particular, he referred to an incident after a recent bomb blast in Colombo, in which a policeman allegedly stated to the applicant's wife "people freed by your husband did this". The applicant claimed that the situation for lawyers in Sri Lanka had not changed since 1991 when a number of lawyers had been killed for acting in human rights cases. Accordingly, he maintained that it was too dangerous for him to return to Sri Lanka and that he had a well-founded fear of persecution for a Convention reason and should therefore be granted a protection visa.

THE TRIBUNAL'S DECISION The Tribunal set out the basis for its jurisdiction under the Act and then under the heading "Legislative Framework" observed: The central issue for determination in this matter is whether or not the applicant is a person to whom Australia has protection obligations under the Convention done at Geneva on 28 July 1951 as amended by the Protocol done at New York on 31 January 1967 (see sub-section 36(2) of the Migration Reform Act 1992). Refugee defined. In terms of Article 1, A(2) of the Convention and Protocol, Australia has protection obligations to 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. After examining the meaning of "well-founded fear" and "persecution" for the purposes of the Convention, the RRT set out the evidence and claims relied upon by the applicant, canvassing various matters, including those which I have just recounted. Under the main heading "Discussion And Findings" the RRT observed: The Tribunal also accepts that being outside the country of his nationality, the Applicant has a subjective fear of persecution should he return to Sri Lanka. However, in order to satisfy the Convention definition of a refugee, this fear must be objectively founded in the sense that it is based in reality. There must be a "real chance" (Chan's case) of persecution occurring. After examining what constituted persecution for the purposes of the Convention, the RRT considered which of the five Convention-related reasons for persecution were relevant to the applicant's claim and observed: The Applicant has made no claims for reasons of race, religion or nationality. There is no evidence before the Tribunal which would substantiate claims in regard to these grounds and therefore the Tribunal finds that the Applicant does not have a well-founded fear of persecution for reasons of race, religion or nationality. He has claimed a fear of persecution on the Convention ground of imputed political opinion, arising out of his work as a legal representative acting for suspected Tamil terrorists. His claims could also be considered in relation to the ground of membership of a particular social group (lawyers who act for Tamil clients). The Tribunal will consider his claims under these headings concurrently because they inter-relate. The RRT then identified the issue for determination in these terms: The crucial question for the Applicant is whether there is a real chance he will suffer severe harm amounting to persecution from the Sri Lankan authorities because of his involvement with Tamil clients on return to Sri Lanka. The Applicant also claims to fear Sinhalese people in general because they may consider him to be a traitor because he has acted for Tamils. The RRT then examined the circumstances in Sri Lanka affecting general human rights and the position of lawyers working within that country from the late 1980's. This analysis contained, for the most part, references to, and summaries of, information from various written sources including journal and newspaper articles and reports and cables from Amnesty International and the Australian Department of Foreign Affairs and Trade ("DFAT"). After referring to its inability to obtain evidence of recent harassment of lawyers within Sri Lanka, the RRT observed: The picture which emerges from the foregoing is that whilst there were serious problems for lawyers working in the human rights field in the 1980's and perhaps early 1990's, these problems had diminished substantially by 1994, to the extent that there has only been one report of harassment since 1994. This picture accords with the gradually improving human rights situation overall in Sri Lanka. The RRT then examined the extent to which general human rights were recognised within Sri Lanka, referring to various source materials, including quoted extracts from cables and reports by DFAT, Amnesty International and Human Rights Watch Asia. The RRT concluded: Overall, the Tribunal is satisfied that human rights abuses occur, more recently on a much reduced scale, however, there are still grave concerns about impunity of the security forces. There is no information which suggests lawyers are being mistreated because they act for any particular group. The RRT then examined the claims of the applicant and, whilst accepting the applicant's assertion that he had been questioned and mistreated, concluded: However, in examining at the totality of the Applicant's situation; that he acted for Tamils for some years without difficulty, that he suffered one incident of mistreatment (which the Tribunal does not consider amounted to persecution), that he was not approached by the police again in the following six weeks prior to his departure and was free to pursue his law practice without hindrance, the Tribunal does not accept that the Applicant faces a real chance of persecution. Accordingly, the RRT found that the applicant did not have a well-founded fear of persecution and was not entitled to a protection visa.

GROUNDS FOR REVIEW The applicant sought judicial review in this Court of the decision of the RRT pursuant to s 475(1)(b) and s 476 of the Act. Section 475(1)(b) is in the following terms: Subject to subsection (2), the following decisions are judicially-reviewable decisions: ... (b) decisions of the Refugee Review Tribunal. Section 476(1) provides: Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision. By his amended application for review, the applicant essentially raised two grounds for review; first, that the RRT had not observed proper procedures required by the Act in connection with the making of the decision and, secondly, that the decision had involved an error of law in an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the RRT. Mr Niall of Counsel for the applicant first submitted that the RRT had failed to act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Act, and had failed to pursue the objective of providing a fair mechanism of review as required by s 420(1) of the Act. Section 420 of the Act is in the following terms: (1) The Tribunal, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. In support of this contention, Counsel submitted that the RRT had failed to comply with the procedures laid down by s 430(1) of the Act by failing to set out findings of material facts and failing to refer to the evidence or other material on which those findings were based. Section 430(1) of the Act stipulates: Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. These matters were expanded in the amended application for review where, at paragraph 1 under the heading "Particulars" at sub-paragraph (b), the following is pleaded: The Tribunal failed to comply with the procedures in s 430 of the Act by failing to set out findings of material questions of fact and refer to the evidence or other material on which those findings were based including: 1) Which, if any, of the following claims made by the applicant the Tribunal did not accept as having occurred (1) he was detained by authorities; (2) he was interrogated at length; (3) he was placed in a room where torture was carried out; (4) he was assaulted by having his beard pulled, by being hit on the side of the head, that his hand was burnt requiring medical treatment; (5) he was threatened with death if he complained; (6) his house was stoned and his car damaged; (7) he had received a letter from an organisation known as Deshapremi Sanvidhanaye asking him to stop appearing for terrorists; (8) the applicant's wife was spoken to on the street by police in relation to the applicant's work; (9) the police had visited his home since his departure for Australia. Counsel submitted that the RRT had failed to make material findings of fact in relation to past events, including the matters canvassed above in the amended application. It was contended that the claims made by the applicant in relation to the incident which the RRT accepted had occurred on 11 August 1994 obliged the RRT to make findings of fact in relation to that incident. Counsel submitted that, although the RRT accepted the applicant's claims that he had been questioned and that he had been mistreated, it was not possible to infer from the expression of its findings upon the basis upon which the RRT had concluded that the questioning and mistreatment of the applicant did not amount to persecution. Counsel submitted, in the alternative, that if the RRT had made the necessary findings of fact as to past events, it had failed to express them in the manner required by s 430 of the Act. Mr Niall further submitted that the requirements imposed upon the RRT by s 430 of the Act reinforced the view that a failure by a tribunal of fact to provide proper reasons for decision is an error of law and therefore amounts to a ground for judicial review pursuant to s 476 of the Act. Mr Mosley of Counsel for the respondent submitted that the RRT was not required to make findings in respect of each and every claim made by the applicant and, in any event, the RRT had made the necessary findings. Counsel conceded that the RRT had made no findings in relation to the claims made by the applicant that he had been burnt with a cigarette, that he had been struck on the side of the head with a book and that his beard had been pulled or that he would be killed if he informed anyone about the interview. However, it was further submitted that the RRT had given the applicant "the benefit of the doubt", in that it had accepted that he had been questioned and had been the victim of one incident of mistreatment. Counsel contended that it was unnecessary for the RRT to make a direct finding in respect of the applicant's claim of detention, on the basis that such a finding could be inferred from a finding that the applicant had been questioned and suffered mistreatment. Moreover, Mr Mosley contended that the RRT had made a finding that the applicant had been interrogated in that the RRT had concluded that the applicant had been questioned and mistreated. Counsel submitted that it was not material whether the location of the questioning, to which the applicant had been submitted, was in a room where torture was carried out. It was submitted that the matter was of little consequence to an overall finding as to whether there was a real chance of persecution. In relation to the applicant's claim that his house had been stoned and his car damaged, Counsel for the respondent referred to these observations of the RRT: Although he claimed that his house was stoned and car damaged, he himself stated that he does not know who was responsible. It is reasonable to assume that if the police were interested in the Applicant they would use other methods to harass him, such as detention and interrogation.

However, Counsel for the applicant contended in written submissions that the above passage demonstrated that the RRT had erred in law in confining itself to making findings as to whether or not the police had been responsible for the applicant's alleged well-founded fear of persecution. It was submitted that, in adopting this approach, the RRT had foreclosed the possibility of making findings which were relevant to the existence of a well-founded fear of persecution by persons other than the Sri Lankan authorities. It was also submitted that the RRT had erred in law by proceeding on the incorrect assumption that a single act of mistreatment could not amount to persecution for the purposes of the Convention. In support of this latter contention, Counsel also referred to the RRT's reasons for decision where it was concluded: The Tribunal does not accept that the one incident he suffered is indicative of a campaign against him by the security forces and that this amounts to a real chance that he may be persecuted on return. Counsel submitted that the RRT had proceeded upon the erroneous premise that it was required to make a finding of a campaign directed against the applicant before it could conclude that the applicant had been "persecuted". This proposition was disputed by Mr Mosley who argued that the RRT did not, as contended by the applicant, regard it as necessary to "show a campaign against him by the security forces." Rather, in this respect the RRT had simply made a finding that it did not accept the claim of the applicant that his home had been the subject of continuous police visits since his departure. Reference was made to the following observations of the RRT earlier in its reasons for decision: The Tribunal does not accept that the Applicant has been entirely honest in claiming that the police have pursued him since his departure. They had ample opportunity to do so prior to his departure, particularly as he continued acting for clients about whom they were allegedly concerned. Furthermore, the Applicant has escalated his claim about police visits. Initially, he stated they came once since his departure; at the reconvened hearing he stated that they have been coming continuously. This and the claim about the Applicant's wife being accosted in the street by a policeman on a motorbike, gave the Tribunal the impression that the Applicant was exaggerating his claims. Counsel for the respondent submitted that, as the applicant had made a claim with respect to only one incident in which it was alleged that the applicant's wife had been accosted by a policeman on a motorbike, it was open to the Court to infer from the passage just quoted, a rejection of that claim. Consequently, so it was argued, it was the falsity of that claim in addition to the inconsistency between the two versions which had led to the conclusion by the RRT that the applicant had exaggerated the extent of police harassment since his departure. Mr Mosley also referred to this statement from the reasons for decision where the RRT observed: In general the Applicant's statements appear exaggerated and far fetched. In particular, his comments about collusion between non-governmental human rights monitoring agencies and the government has no basis. Amnesty International and Asia Watch as well as local agencies in Sri Lanka have openly criticised the government. Counsel for the applicant argued that, although it was open to the RRT to make findings as to credit, it was nevertheless incumbent upon it to state which evidence it believed and which it did not and criticised the RRT for making merely general statements about the applicant's credibility. In relation to the applicant's claims that, since his arrival in Australia, police had attended his house in Sri Lanka and taken some papers, Counsel for the respondent pointed out that the applicant had conceded that the search of his house after his departure could be attributed to the bombing in Colombo by the LTTE when the police were searching all houses. As well, reference was made on behalf of the respondent to what purported to be a copy of a translation of a letter which was before the RRT in the following terms: TRUE EXTRACT FROM THE KAHATUWUWA POLICE MINOR OFFENCES REGISTER

Date: 17.9.94 Time: 10 hrs. Page: 361 Para: 434 FOR FUTURE PROTECTION Sudharma Lakshman Bandara Ratnayaka, 35 years, Male, Sinhalese Buddhist, married, Attorney-at-Law by Profession, permanently resident at "Sevana", Kahatuduwa, Polgasovita arrives at the Police Station and states as follows: - I am working as an Attorney-at-Law at the Hulftsdorp Courts Complex. On 16.9.94, I received a type written letter from an Organisation called "Deshapremi Sangwidhanaya" at my residence at Kahatuduwa. In that letter, I have been warned not to appear in Cases against the transport of goods to the Insurgents of the North. This warning may have been given because of Case No. 6530/94 that is being inquired into at the High Court of Colombo and High Court Case No. 6518/94 that has been inquired into and finalised. I do not know who has sent this letter. They have also said that if I do not stay in appearing these Cases, they will have to take strong action. I make this statement for my future protection. There is no necessity for any inquiries. That is all. Read and explained. Accepted as correct and signed. (Signature of Mr. Ratnayaka). I, P.C. 3096 Gunawardene recorded the above Statement of Sudharma Lakshman correctly (Sgd.P.C.3096) I, P.C. 761 Typed the above statement correctly. (Sgd.) I certify that the above statement has been extracted from the Minor Offences Register and the Original is kept in safe custody Under me....................................... Sgd. O.T.C. Police Station Senarath B. Weerakoon Kahatuduwa Sworn Translator Mr Niall of Counsel for the applicant also submitted that the RRT wrongly imposed an onus on the applicant to produce corroborative material. Counsel referred to the observations of the RRT at 13: The Applicant, although stating at various times that he worked as a human rights lawyer, in fact did not substantiate these claims. In this context, it was further argued that the RRT had unfairly held against the applicant the fact that there was no extrinsic material available to the RRT concerning the treatment of lawyers acting in human rights cases in Sri Lanka even though the RRT itself had been unable to locate any material of that kind. Reference was made to this passage from the RRT's reasons: The only time he experienced any difficulty was in August 1994. As noted, from 1994 there has been very little information about harassment and intimidation of lawyers. The Tribunal's Research Desk wrote to the Bar Association of Sri Lanka on two occasions since December 1995 requesting information of this kind. No reply has to date been received. The Tribunal's Library has attempted to obtain copies of recent annual reports of the Bar Association of Sri Lanka, without success. While it is not possible to conclude from this lack of information that no harassment persists, it is reasonable to assume that if there were serious problems of harassment and intimidation of lawyers, the Bar Association would have reported on it, and such reports would be available, as was the case in regard to the problems for lawyers in the 1980's. The Applicant tendered a copy of the Bar Association's annual report for 1990-91, Voice of the Bar, "Attacks on Justice: The Harassment and persecution of Judges and Lawyers" (which was summarised in the Australian Law News, "Rule of Law under Threat", September 1990: 27). It is also reasonable to assume that if more recent information was available from this source, he would have tendered that too. It is interesting also that the letter the Applicant tendered from his colleague in Colombo gives no indication of difficulties either for the Applicant or for lawyers in general. It is a friendly, benign letter which attests to nothing more than the value of the Applicant as a lawyer. Counsel for the respondent submitted, however, that the RRT did have extrinsic material before it concerning the treatment of lawyers acting in human rights cases in Sri Lanka and referred to this passage from the RRT's reasons: In a cable (CL34821 of 11 November 1992) the DFAT reported on the question of "Lawyers and Human Rights Activists" (see paragraphs 6-10) as follows: The human rights movements in Sri Lanka includes many lawyers (both Tamil and non-Tamil) who work to obtain the release of detained persons through the process of habeas corpus. The Sri Lanka Bar Association (BASL) employs lawyers specifically to travel to detention camps, interview prisoners and bring habeas corpus petitions. It reports a high degree of success in its work and has not complained of harassment by the government or the security authorities… It is most unlikely that a lawyer returning to Sri Lanka would run into difficulties because he was previously involved in legal work on behalf [of] detainees… Since 1994 however the Tribunal's Research Desk has been able to locate only one report of a lawyer being harassed. This is contained in the British Refugee Council's publication entitled The Sri Lankan Monitor, (No. 85, February 1995) and states that a lawyer was assaulted by local police in February 1995 while visiting a client in a police station.

SUFFICIENCY OF RRT'S FINDINGS OF FACT A substantial failure to state reasons where a statement of reasons is required by a legislative provision like s 430(1) of the Act forming part of the statutory framework pursuant to which the decision is made, constitutes an error of law; Dornan v Riordan (1990) 24 FCR 564 at 573. However, the examination by the Court of the reasons of the Tribunal must not be minute or pedantic. As Kirby J indicated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291: The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law. A similar injunction is to be found in the judgment of Lockhart J in Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708: ... when this Court hears appeals from administrative tribunals - which are the bodies entrusted by Parliament with the task of reviewing decisions of a particular administrative character - the Court should approach its tasks sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole. Politis' case was considered in conjunction with the observations of Gummow J in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479 by Sackville J in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 where his Honour continued, at 95: Legislation such as s 166E(1) of the Migration Act does not require the tribunal to prepare lengthy reasons dealing with every aspect of the evidence. What is required is that the tribunal set out in "short and measured, but specific terms its findings in connection with" matters relevant to its decision: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465; 77 ALR 577 (Fed C of A, Wilcox J) at FCR 483, approved in Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 (Fed C of A, Full Court) at 444. As Wilcox J observed in Our Town v ABT (at FCR 481), it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. The standard required is not one of perfection and regard must be had to the composition of the tribunal, which does not necessarily include trained lawyers: Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 40 ALR 233; 59 FLR 132 (Fed C of A, Full Court) at FLR 157, per Sheppard J. After articulating the reasons of policy underlying the requirement for administrative Tribunals to furnish reasons for their decisions, his Honour continued, at 96: A key element in the appellant's case, as the tribunal recognised, was that he had been forcibly detained in July or August 1989 by the TNA and subjected to torture. These events occurred only a few months before the appellant's departure from Sri Lanka for Australia. The events surrounding his detention by the TNA constituted only one element in the appellant's claim to refugee status. Nonetheless it was critical to his application, since it provided the foundation for his contention that he had a well-founded fear that, as a Tamil, he would be forced, on his return to Sri Lanka, to join the TNA. Despite the significance of this contention to the appellant's case, the tribunal disposed of it simply by saying that: [i]t was unable to find any objective reason why [the appellant] should be arrested on his return to Sri Lanka. The [appellant's] fear of the TNA is speculative and not well-founded on the evidence. It is impossible to ascertain from these cryptic comments what process of reasoning was adopted by the tribunal. There are no findings of fact recorded in relation to the appellant's claim to have been detained by the TNA. The tribunal cast no doubt on the credibility of the appellant, but did no more than summarise his factual claim in an incomplete manner. If the tribunal intended to reject any part of the applicant's account, it did not say so. If it did not intend to reject his account, it is difficult to understand why the circumstances recounted by the applicant, together with other material relating to conditions in Sri Lanka in 1989 and subsequent years, did not warrant a finding that there was a real chance that he would be exposed to persecution at the hands of the TNA, for a Convention-related reason. Particularly is this so when there was evidence that the appellant had to travel regularly between Colombo and Jaffna, in areas controlled, at least from time to time, by the TNA. In the present case, I consider that there was a finding of fact that the events of 11 August 1994 occurred substantially as described by the applicant. The RRT at pp 6-7 of its reasons described those events in terms which clearly imply that it accepted the applicant's account of them in its entirety. It is true that at p 17 of the reasons the RRT concluded somewhat laconically that the applicant "suffered one incident of mistreatment (which the Tribunal does not consider amounted to persecution)". However, it is not there suggested that the applicant's account of the "incident" was untrue or exaggerated. In that respect, the RRT's finding in respect of the events of 11 August may be contrasted with its view of the alleged visits by police to the applicant's home and assertions of harassment of his wife after he had left for Australia. Those allegations, as already noted, were regarded as "exaggerated" for reasons which the RRT explained at p 17 of its decision. Accordingly, I do not consider that the reasons of the RRT, when examined with the generosity of approach indicated for example by Kirby J in Wu and Lockhard J in Politis v Federal Commissioner of Taxation evince a failure to set out its findings on the questions of fact which were material to the ultimate issue of whether the applicant had a well-founded fear of persecution. The evidence on which that issue was determined, apart from the "country evidence" from DFAT and other sources, was essentially that given by the applicant himself, some of it, in relation to events after his departure from Sri Lanka, necessarily hearsay, presumably from his wife. Since there was no occasion to resolve a conflict between two differing pieces of evidence directed to the same question of fact, the RRT was not obliged to deal expressly with every item of evidence: (Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 per Kirby J at 594).

DO THE RRT'S REASONS DISCLOSE AN ERROR OF LAW? In this second aspect of the grounds on which the applicant sought review of the RRT's decision, attention was focussed on four separate respects in which the RRT's reasons were said to be vitiated by error of law. It is convenient to examine separately each of those alleged errors. (a) That the RRT considered that only conduct by the police could give rise to a well-founded fear of persecution. This error was said to be evinced by the passage already quoted from the RRT's reasons to the effect that: Although he claimed that his house was stoned and car damaged, he himself stated that he does not know who was responsible. It is reasonable to assume that if the police were interested in the Applicant they would use other methods to harass him, such as detention and interrogation. I do not read that passage as endorsing the proposition, as a matter of law, that only police officers could perpetrate acts which would amount to persecution of the kind contemplated by the Convention. The reference to the police was simply by way of indicating why it was that the RRT was not prepared to find that they had been responsible for stoning the applicant's home or damaging his car. That finding does not entail that persecution could only be engaged in by the police, the military or some other official agency. However, a finding of fact as to who has been responsible for a past interference with the person or property of an applicant may be a necessary step in predicting the degree of likelihood that the applicant will be subjected, in the future, to acts of systematic harassment of the kind held in Chan Yee Kin discussed below to constitute persecution. The RRT's finding that responsibility for incidents other than those of 11 August 1994 could not be attributed to the police was of that kind. It did not involve an error of law within the meaning of s 476(1)(e). (b) Was a single act of mistreatment regarded as incapable of constituting persecution? The RRT, in its discussion of the legislative framework at pp 3-4 of its reasons, regarded the concept of persecution as having undergone a "considerable liberalisation" by the High Court in Chan. It was then noted, at p 11, under the heading "Discussion and Findings" that: Persecution can also include a combination of numerous harms none of which standing alone constitute persecution but which, when considered in the context of the general atmosphere in the applicant's country, produces a cumulative effect which creates a well-founded fear of persecution (see Nancy Kelly, "Guidelines for Women's Asylum Claims" International Journal of Refugee Law 521-22). That statement, in my view, implies a clear acknowledgement that a single harm standing alone could amount to persecution in the relevant sense. It is true that the RRT, in referring to the events of 11 August 1994, said of the applicant "that he suffered one incident of mistreatment (which the Tribunal does not consider amounted to persecution)". However, I do not consider that statement to have been predicated on the perception that one incident of mistreatment, however prejudicial or discriminatory, could never amount, in law, to persecution. Rather, the Tribunal was indicating its view, as a matter of fact, that the events of 11 August lacked the systematic character indicated by the High Court in Chan to be a necessary constituent of persecution, or had not been perpetrated because of the applicant's membership of a particular social group or a political opinion which had been imputed to him. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 McHugh J observed at 429-30: The notion of persecution involves selective harassment. it is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be "persecuted" because he or she is a member of a group which is the subject of systematic harassment. Nor is it a necessary element of "persecution" that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution. Moreover, to constitute "persecution" the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol. Measures "in disregard" of human dignity may, in appropriate cases, constitute persecution. It has to be borne in mind, in this context, that the RRT was not required, as an essential part of reaching a conclusion as to whether the applicant had a well-founded fear of persecution, to characterise past acts of which he complained as "persecution". The significance of those past acts was that they had to be taken into account in the predictive exercise of determining whether there was a "real chance" of the applicant's being persecuted for a Convention reason if he returned to Sri Lanka in the future. Thus in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 it was indicated in the joint judgment of the High Court 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. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason". Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC. In my view, the RRT's findings as to the treatment to which the applicant had been subjected were made solely with a view to determining whether it would have a rational basis from which to assess whether there was a real chance of persecution for a Convention reason in the future. There is no error of law in this part of the reasons. (c) Did the RRT err in imputing to the applicant the attitude which it did to the threat by Deshapremi Sangwidhanaya? The text of the record made at the Kahatuwuwa Police Station of this threat has already been set out above. In canvassing the applicant's claims, the RRT remarked: On 16 September 1995 the Applicant received a letter from an organisation known as Deshapremi Sanvidhanaye [sic] asking him to stop appearing for northern terrorists. He has tendered a certified copy of the letter (marked R2) and its translation (marked R2A). He made a complaint to the police (see R3 and R3A) after receiving this letter, but the police did not make any investigation, although they did record his complaint. In there observing that the police did not investigate the applicant's complaint, the RRT seems to have accepted that the applicant acquiesced in the conduct by the police in merely recording, and not investigating his complaint about the alleged letter. This is reinforced by the RRT's observations at p 17 of its reasons that: It is curious though that as a person who claimed to be strongly committed to human rights and a staunch advocate for underprivileged defendants and fearless fighter for their rights at law, the Applicant was unable to complain when he himself was a victim of mistreatment. In my view that is a general comment about the generality of the mistreatment and threats to which the applicant claimed to have been subject, including those which the RRT was inclined to find had been made by persons or groups other than the police. The comment, I consider, has been made to explain why the RRT did not find that the applicant himself had perceived a significant threat that he would be the victim of persecution from either source in the future. It does not disclose an error of law. (d) Was an onus wrongly imposed on the applicant to show that threats of persecution against civil rights lawyers were common in Sri Lanka? A fair reading of the RRT's reasons shows that it had through its Research Desk made its own enquiries as to whether any evidence existed in relation to the harassment of lawyers in Sri Lanka. As a general rule it is not obliged to make enquiries of that kind; Dharam Raj v Minister for Immigration and Ethnic Affairs (unreported, 18 July 1996, per Davies J) and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 per Wilcox J. However, having made those enquiries and elicited a response which was negative from the applicant's point of view, it was quite proper for the RRT to have tested the efficacy of its own enquiries by examining what evidence the applicant had been able to gather from the Bar Association and other professional sources to which he might be presumed to have special access. That is all that the RRT did when it observed: It is also reasonable to assume that if more recent information was available from this source, he would have tendered that too. My view of the propriety of the RRT's approach to this aspect of the evidence is confirmed by the remarks of Sundberg J in Maqsood Ahmad v Minister for Immigration and Multicultural Affairs (unreported, 20 May 1997) where his Honour observed at p 6: If there has been anti-Muhajir and anti-MQM activity in the north of Pakistan (where the capital Islamabad and another major city, Lahore, are located), it would presumably have featured in the newspapers circulating there. The applicant could have obtained that material and put it before the Tribunal. Nothing was produced, and nothing appeared from the considerable volume of "country information" available to the Tribunal, to suggest relevant turmoil in the north and in particular in and around Faisalabad.

CONCLUSION For the reasons which I have endeavoured to explain I have been unable to discern any omission from the RRT's findings of fact or deficiency in its statement of reasons which has caused those reasons to fail to comply with s 430(1) of the Act. Nor has the applicant succeeded in demonstrating that the reasons were infected by any of the errors of law which he imputed to the RRT. The application must therefore be dismissed with costs. I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 14 September 1998 Counsel for the Applicant: Mr R Niall

Solicitors for the Applicant: Victorian Legal Aid

Solicitors for the Respondent: Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Cases Cited (10)

Cited By (1)