Tho Xuan Doan v Minister for Immigration Local Government and Ethnic Affairs

REASONS FOR JUDGMENT This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") of 6 February 1997 which affirmed a delegate's decision that the present applicant, Mr Fernando, his wife and two children were not entitled to protection visas. Three grounds of review have been prosecuted in the present proceeding. They are that (i) the decision involved an error of law under s476(1)(e) of the Act; (ii) there was no evidence or other material to justify the making of the decision within s476(1)(g) and s476(4)(a) of the Act; and (iii) the Tribunal, in not acting according to the substantial justice and merits of the case: the Act, s420(2)(b); did not observe the procedures that the Act required to be observed in connection with the making of the decision: the Act, s476(1)(a). The second and third of these can be disposed of quickly. They are not arguable in the circumstances. But before dealing with them, it is appropriate to refer to several background matters. Background Matters (1) Mr Fernando is a citizen of Sri Lanka of Tamil ethnicity and of the Roman Catholic faith. His wife is a Roman Catholic Burgher, who like Mr Fernando, was born in Colombo. (2) In his application for a protection visa he indicated he feared arrest and torture at the hands of government security forces if he returned to Sri Lanka. He attached a statement to the application providing details of his reasons for this apprehension. (3) In reaching its decision that Mr Fernando was not a refugee, the Tribunal did not make any finding that impugned Mr Fernando's credit as a witness. It likewise appears to have accepted, generally at least, the claims made by the applicant as to the occurrence of the particular events and incidents on which he relies. Grounds (ii) and (iii) (a) The no evidence ground Section 476(1)(g) and s476 4(a) provide respectively (insofar as presently relevant): "476 (1) application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: . . . (g) that there was no evidence or other material to justify the making of the decision. . . . (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) 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." The applicant's contention, as I understand it, is that in deciding that he was not a refugee the Tribunal made two findings notwithstanding that there was no evidence or other material which it could reasonably have been satisfied established these two findings. Those findings were that: "(a) the authorities had no adverse interest in the Applicant when he left [Sri Lanka]; and (b) if he tells the truth to investigators [on his return to Sri Lanka] he will not have to endure anything more than routine questioning without any mistreatment." These two matters are claimed to be critical to the Tribunal's decision. The operative decision, as I noted above, was that the Applicant was not a refugee. When one considers this decision in light of the provisions of s476(4)(a) - it has not been suggested that s476(4)(b) is of present relevance - this ground evaporates in this case. In Doan v Minister for Immigration Local Government and Ethnic Affairs, (9 April 1997, unreported), Olney J indicated that because of the limitations imposed by s476(4), the ground in s476(1)(g) will rarely, if ever, be available to an applicant who has been unsuccessful before the Tribunal. His Honour observed: "This is so because it is not possible to identify any particular matter that is required by law to be established in order to justify a decision that an applicant is not a refugee. In this case, the facts as found did not satisfy the Tribunal that the applicant was a refugee. The Tribunal was not required by law to make any particular finding in order to be not so satisfied." Like observations were made by Goldberg J in Ratnayake v Minister for Immigration and Ethnic Affairs, (6 May 1997, unreported). They clearly apply to the circumstances of this case. Accordingly I find this ground not made out. (b) Non-observance of required procedures For reasons which I will give, it is unnecessary to set out the statutory provisions relied upon in support of this ground, ie s476(1)(a) and s420(2)(b). Suffice it to say I have been invited to add my voice in support of the views expressed by Davies and Burchett JJ in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 that s420 of the Act establishes procedures that the Tribunal must follow. I decline to do so as it is unnecessary in this case to express a view on the matter. Counsel for the applicant all but conceded that in the circumstances of this application, he would only be able to make out this ground if he could establish either or both of the other two grounds. Though he did not wish to "close this door entirely", he was correct in this. I have already found that the second (the no evidence) ground has not been established. As I will next indicate the same is true of the s476(1)(e) ground. There is simply no material particularised beyond that raised in relation to those other two grounds, that could conceivably make out this. That material is quite insufficient for the purpose. Ground (i) Section 476(1)(e) of the Act provides: "(1) 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: . . . (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." To paraphrase the errors relied upon, it is claimed that the Tribunal (a) failed properly to apply the "real chance" test by not engaging in the requisite speculation in the context of matters peculiar to Mr Fernando; and (b) failed to give any consideration at all to one of the bases relied upon by Mr Fernando to found his fear, ie the real chance of persecution of him by the Liberation Tigers of Tamil Eelam ("the LTTE"). Before considering these it is appropriate to refer in a little detail to the Tribunal's decision. The Tribunal's Decision The following findings were made by the Tribunal. (1) Members of the applicant's family were the victims of communal violence between Tamils and Sinhalese in 1983. (2) Following that period of communal violence, there was no evidence that Mr Fernando suffered any serious harm on account of his race or religion. (3) He and his wife were subjected to security checks at home and at public checkpoints and his wife was subjected to body searches. Those checks and searches were routine in Colombo and Mr Fernando and his wife were left alone after producing documentation satisfactory to the security forces. (4) The actions in (3) were not persecutory as they did not inflict harm of such a serious nature as to amount to persecution, though the body searches were humiliating for Mrs Fernando. This conclusion remained unchanged after the evidence had been considered cumulatively. (5) Mr Fernando, who worked at the time with a Tamil-owned travel agency, was detained and questioned by police about issuing tickets to people detained for travelling with false German visas. Mr Fernando claimed that his release was secured by his employer paying a bribe. (6) In relation to the detention in (5), the Tribunal did not accept that Mr Fernando would have been released unharmed and unconditionally, had the authorities believed he was deliberately associated with arrangements to illegally move Tamil Tigers out of Sri Lanka. Rather, it found that the authorities were satisfied he was not involved in such arrangements and had no adverse interest in him after he was questioned. (7) That lack of interest was borne out by the lack of any action against him when he had contact with the police in regard to identifying LTTE suspects, in carrying out his administrative responsibilities when running a Hindu temple connected with his work, as also by his ability to leave Sri Lanka without hindrance. (8) The reference in (7) to identifying LTTE suspects referred to the case put by Mr Fernando that on two occasions he: "was taken to the police station and was shown photographs of suspects and then asked to identify the photographed people in a police line up. He did as he was directed and also signed a statement, although he is uncertain as to the contents of that statement as it was written in Sinhalese, a language which he speaks but does not read. He believes he was involved in the identification of people who were suspected of belonging to the Liberation Tigers of Tamil Eelam, although, he had never seen any of the suspects. He was released without harassment because he had complied with the directions of the police." (9) Mr Fernando stated that security officials have asked after him at his workplace on three occasions since he left Sri Lanka, though he did not know why those inquiries had been made. The Tribunal appears to have accepted that, on the basis of his previous experiences, it is possible he may be wanted for questioning about illegal departures by Tamils. On the basis of his previous experience, the Tribunal concluded that: "if he tells the truth to investigators he will not have to endure anything more than routine questioning without any mistreatment. It finds that there is not a real chance that he will be harmed as a consequence of the security officials pursuing their enquiries." Against the above background the Tribunal expressed in the following way its findings on whether the applicant or his family members faced a real chance of persecution for a Convention reason: "The Tribunal accepts that the Applicant and his family live in an atmosphere of constant uncertainty and fear and that he and his wife find Australia to be a much more peaceful place in which to raise their children. It is likely that if they return to Sri Lanka they will continue to be subjected to security checks as they have been in the past, with the attendant fear and inconvenience. As discussed at the hearing, the Applicant's experiences have conformed with circumstances expressed in information from other sources that demonstrates Tamils who satisfy the authorities that they have bona fide reason for being in Colombo, partly supported by presenting a satisfactory means if [sic] identification, are subjected to unwanted security checks but do not face a real chance of persecution (see, for example, discussion by this Tribunal at pp. 11-26 in RRT Decision No. V96/04973 of 10 December 1996). The Applicant agreed that this is the case but added that he is the target of special attention as evidenced by his experiences with the police and continued enquiries after his departure. It is plausible that some security checks may be instigated by the Sinhalese neighbour and it is also possible that the Applicant could be questioned about tickets he has issued to people involved in illegal movements out of Sri Lanka. On the other hand, there is no evidence to suggest that the links with the Hindu temple have cause [sic] anything other than idle comment that the Applicant is associated with Tamil terrorists. These have been comments which have never been acted on. Despite searches of their home by police and property and visits to the police station by the Applicant, both for questioning and for the purposes of identifying people in line ups, neither the Applicant nor his wife and children have suffered harm that is of such a serious degree as to amount to persecution. It is accepted that they have been intimidated and that there have been some unseemly insults, searches and threats, but there is no evidence before the Tribunal to lead to a conclusion that any of them faces a real chance of persecution for one or more of the reasons in the Convention. As such, they are not persons to whom Australia has protection obligations under the Convention as amended by the Protocol and cannot satisfy that criterion for a protection visa." Accordingly it concluded that Mr Fernando and his family were not entitled to protection visas. The Applicant's Case It is appropriate to preface what I have to say with three observations. First, the applicant was represented at the hearing before the Tribunal. Secondly, it is not for the Tribunal to go out and make its own inquiries for the purpose of making the applicant's case for him: Dharam Raj v Minister for Immigration and Ethnic Affairs, 18 July 1996, unreported, Davies J. Thirdly, it is not the function of this court to engage in merits review. Both parties have accepted, as they were bound to, that the test and approaches to be applied in determining whether Mr Fernando had a well-founded fear of persecution on a Convention ground were those of Chan Yee Kui v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 as elaborated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and Minister for Immigration and Ethnic Affairs v Guo (1997) 71 ALJR 743. In relation to the Chan test, counsel for the applicant drew particular attention to the joint judgment in Guo's case where it was said (above at 750): "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. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term 'real chance' not as epexegetic of 'well-founded', but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate." Likewise the parties accepted that the limitations imposed upon the process of judicial review were as stated by Kirby J in Wu's case and include (above at 291): "1. 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. 2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker. 3. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law." Counsel for the applicant drew particular attention as well to the following observations of Kirby J in the same case (at 293): "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 a 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 way to the final conclusion, based upon what seems 'likely' 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, in so far as they are said to give rise to a 'real chance' of persecution." The Applicant's Submissions Reflecting the alternate bases for the ground of appeal, two submissions were made. (i) When one considered the entirety of the material before the Tribunal, it was submitted that the Tribunal failed to engage in the requisite speculation implicit in the Chan test. The Reasons, even beneficially construed, evince an undue reliance by the Tribunal on the past treatment of Mr Fernando by the security forces. In this the Tribunal failed to take into account the factors that explained the then restraint shown by the security forces not the least of which was that he had shown himself to be compliant on two occasions in identifying suspected LTTE members. (ii) the Tribunal only dealt with the application before it on the basis of fear of persecution on the grounds of Tamil ethnicity only. In particular it did not consider the issue of imputed political opinion as advanced in the material before it. Furthermore it failed to consider at all Mr Fernando's claim that he feared persecution by the LTTE arising from his alleged identification of LTTE suspects. The respondent's submissions were that the merits of the applicant's case were properly considered and that all that was being engaged in was an attempt to obtain an impermissible review on the merits. Conclusions I agree with the respondent's submissions. First, insofar as the Tribunal's alleged failure properly to "speculate" is concerned, I can see no basis for saying that the Tribunal impermissibly so restricted itself by its consideration of Mr Fernando's past treatment by/experience at the hands of, the security forces, as to deflect it from properly considering whether there was a real and substantial basis for the fear Mr Fernando claimed he entertained. I am not prepared to conclude that, when the Reasons are read as a whole, it can be said that the Tribunal has not, in light of the material before it, adequately and appropriately ranged across what has been and what could be for the purpose of applying the Chan test. It is the case that the Tribunal disaggregated some number of the events upon which Mr Fernando relied for the purpose of determining whether individually they demonstrated actual persecution or else grounds, or a basis, for its apprehension. Nonetheless, I do not consider that it fell into the error identified by Kirby J in the passage from Wu's case quoted above to which the applicant drew particular attention. In the lengthy paragraph I have quoted in which it expressed its conclusion, the Tribunal did attempt to make a global estimation of Mr Fernando's prospects of persecution in light of suggested causes, should he return to Sri Lanka. There is, in my view, substance in the suggestion made by the respondent that the applicant's objection to the Tribunal's Reasons is that it did not conjecture or surmise (a) as to such particular view as the authorities may have entertained of Mr Fernando as would lead them to use him to identify suspected persons; and (b) as to whether that view (whatever it may have been) could in turn have provided a basis for a well-founded belief of persecution. Such surmise, as Guo's case indicates, is impermissible. It may well be that the authorities had no particular regard for the Applicant and were in consequence prepared improperly to make use of him. But there is no basis for divining even from this a real and substantial basis for fear of persecution on a Convention ground - the more so given the explicit finding that the authorities had "no adverse interest in him". I take this last to mean in this context that he was not an actual object of interest to the authorities on grounds of race or political opinion. Accordingly I reject the applicant's submission on the alleged misapplication of the Chan test. The alternate submission that the Tribunal considered only fear of persecution based on ethnicity to the exclusion of other Convention bases relied upon by the applicant, can be disposed of more quickly. While it is the case that the Tribunal in describing and outlining the applicant's case makes explicit reference on several occasions to persecution based on race, it likewise made a number of references to matters that alleged association with the LTTE and should properly be regarded as referring to political opinion. As I noted above, I consider that the finding that the authorities had "no adverse interest" in Mr Fernando signified, in its context, that Mr Fernando was not an object of interest on grounds of race or political opinion. For this reason it was appropriate for the Tribunal in its conclusions to reject that there was a real chance of persecution "for one or more of the reasons in the Convention". It was submitted that Mr Fernando had raised with the Tribunal that he feared persecution from the LTTE arising from his activity in identifying LTTE members, and that no consideration at all was given to this. No reference at all was made to this matter, apparently, at any stage until he made his written statement in support of his application to the Tribunal. In that document, after referring to the use the security forces made of him to identify people, he claimed: "By identifying persons whom I didn't even know I became a target of the LTTE and they too could bump me off. Therefore my threat is from both the forces and the LTTE for doing such a thing." This, I am informed, is the only reference that has ever been made to this matter. It was not the subject of evidence or of submission at the hearing before the Tribunal. The focus there, as in the original application for a protection visa, was on fear of harm at the hands of the security forces. And as I have noted Mr Fernando was represented at that hearing. In these circumstances, I do not consider it at all inappropriate, let alone erroneous, that the Tribunal did not advert to or consider this matter so raised. The Tribunal was, in my view, obliged to consider and respond to the case that was actually being put to it. It was not obliged to deal with matters that, though mentioned, could not reasonably be said to be ones that were actually and positively being advanced by the applicant as a significant basis for the apprehension of persecution he entertained. In my view, despite the reference made to it, persecution by the LTTE could not reasonably be regarded as an element of any centrality in the case put to the Tribunal. The Tribunal committed no error of law in failing to consider it. I conclude then that this ground of review has not been made out. The order of the Court will be that the application be dismissed with costs. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn