Cortez, Claudia Maria v Minister for Immigration and Multicultural Affairs Alvarez, Maria Amanda v Minister for Immigration and Multicultural Affairs

[1998] FCA 954

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 37 of 1997

BETWEEN:	CLAUDIA MARIA CORTEZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	RYAN J
DATE OF ORDER:	10 AUGUST 1998
WHERE MADE:	MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the decision under review be set aside.

1. That the matter be remitted to the Refugee Review Tribunal, differently constituted, for reconsideration according to law.

1. That the respondent pay the applicant’s taxed costs of the application, including any reserved costs.

Note:Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 40 of 1997

BETWEEN:	MARIA AMANDA ALVAREZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:		RYAN J
DATE OF ORDER:		10 AUGUST 1998
WHERE MADE:		MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the decision under review be set aside.

1. That the matter be remitted to the Refugee Review Tribunal, differently constituted, for reconsideration according to law.

1. That the respondent pay the applicant’s taxed costs of the application, including any reserved costs.

Note:Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 37 of 1997

BETWEEN:	CLAUDIA MARIA CORTEZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

VG 40 of 1997

BETWEEN:	MARIA AMANDA ALVAREZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	10 AUGUST 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

RYAN J:       The applicants in these proceedings are both natives of El Salvador.  The applicant in the proceeding numbered VG 40 of 1997, Mrs Alvarez, is the grandmother of the applicant in the proceeding numbered VG 37 of 1997, Miss Cortez.  Mrs Alvarez had three sons and one daughter.  Each of her sons was involved to a different extent in the revolutionary activities in El Salvador of a group known as the Farabundo Marti Front for National Liberation (“FMNL”). At some time in 1981, she has claimed, her eldest son, Pedro Armando, was forced to flee from El Salvador to the United States and Mexico.  Shortly afterwards, according to Mrs Alvarez, her home was visited by troops of the El Salvador Government on account of the family connection with the FMNL and she was raped.  Pedro Armando is the father of Miss Cortez who was born on 13 January 1982. 

Civil war raged in El Salvador between 1982 and 1992 in the course of which Mrs Alvarez’s youngest son, Edgardo, was wounded in 1987 and fled to Australia.  In 1989, Mrs Alvarez had another visit from Government troops who, she claimed, threatened to rape her again unless she revealed the whereabouts of her remaining son, Victor, who was still in El Salvador.  Shortly afterwards Victor was assaulted by Government troops because of his perceived sympathy with, or support for, FMNL.  The civil war came to an end in 1992.  However, there is evidence that, after that time, vigilante groups including one known as the “Sombra Negra” (“Black Shadow”) under the pretext of combating the wave of crime which followed the end of the civil war, victimised left-wing supporters of FMNL and human rights activists. Mrs Alvarez has further claimed that, in March 1995, an attempt was made to kidnap the younger applicant, Miss Cortez, while she was on her way to her aunt’s home and, on 10 May 1995, Mrs Alvarez’s son, Victor, was shot at and her house daubed with a slogan roughly translatable as “Death to all Communists; Black Shadow”.  In the same month, the applicants entered Australia and, on 26 June 1995, made application for refugee status which was rejected on 28 June 1995.  An application to the Refugee Review Tribunal (“RRT”) was rejected on 21 January 1997.

In its reasons for decision, the RRT set out some 74 paragraphs under the main heading “APPLICANT’S CASE” in which various matters were canvassed, some of which have been recited above.  Some of those paragraphs are cast in absolute terms which suggest that the RRT has adopted the contents as statements of fact.  For example, paragraph 28 is in these terms:

In March 1995 the Applicant’s granddaughter was followed by a man when she was going to her aunt’s house.  The man approached her and grabbed her but she was able to resist.  Her aunt came out and at that point the man ran away.  The man had a pistol and the Applicant assumed that he was involved with one of the death squads.  The applicant and her granddaughter saw him again when they went to the Immigration Office to pick up their application forms.

On the other hand, other paragraphs under the same heading in the RRT’s reasons are expressed as mere assertions by the applicant, Mrs Alvarez.  An example of a paragraph in this category is 37 which recites:

In the statutory declaration the Applicant continues that there were no significant incidents of persecution apart from abusive and threatening phone calls in the early part of 1995.  The Applicant said “I often disconnected my phone to avoid these calls.”  The Applicant continues that in March 1995 an armed man tried to grab her granddaughter but she was able to escape.

In yet other places under the same main heading, the RRT has reproduced the substance of evidence adduced by Mrs Alvarez and indicated in the same paragraph reasons why that evidence is open to doubt or should be rejected.  For example, 66:

The Applicant provided a letter from her daughter in the United States, dated 2 October 1996, saying that her son Pedro Armando had returned to El Salvador and had been shot outside the Applicant’s house.  It appears very strange that Pedro Armando did not return to El Salvador between 1981 and 1995 while his mother and daughter were in the country.  However he returned to El Salvador after the decision of the Delegate and before the Tribunal hearing, at a time when his mother, daughter and last sibling had left the country.  Coincidences do, of course occur, but I cannot help but wonder why Pedro Armando should have chosen this particular time to return to his mother’s house.

Paragraphs 93 to 119 of the RRT’s reasons are gathered under the main heading “DISCUSSION AND COUNTRY INFORMATION” and contain, for the most part, summaries of information from various written sources including books, newspaper articles and cables from the Australian Department of Foreign Affairs and Trade (“DFAT”) describing the situation in El Salvador from time to time between 1979 and 1996.  However, the RRT has interposed, in some of that discussion, its views about the likely truth or otherwise of evidence given by Mrs Alvarez.  Thus, paragraphs 95 to 98 are in these terms:

95.There was major fighting between the FMNL and the army in 1981 and 1982.  It is therefore feasible that the Applicant’s son, Pedro Armando, could have been involved in such fighting.  It is, however, unlikely that if he had been thus involved he would have been allowed into the United States legally.  He may of course have entered and stayed in the U.S. illegally.

96.I note that in 1987 the FMNL stepped up its attacks again concentrating on economic sabotage and numerous attacks on roads, bridges and electricity transmission lines and pylons.  (Revolutionary and Dissident Movements op cit).  It is therefore again feasible that if Edgardo were involved with the guerrillas at this time he would have faced problems.  The Applicant has claimed that he was in fact involved with LP-28.

97.There was another major guerrilla offensive in November 1989.  At this time the guerrillas attacked the presidential palace and military installations in the capital, San Salvador.  Up to 2000 people were reported killed or injured.  It is therefore again feasible that if the Applicant’s son, Victor, were involved with the guerrillas then this would be a reasonable time for the authorities to have been searching for him.

98.I accept the Applicant’s claim as to being raped in 1981 and being threatened with rape in 1989.  Both these incidents occurred at times of increased guerrilla and anti-guerrilla activity, and it is not unreasonable nor incredible that the Applicant could have been placed in this position.

Mr Gunst of Counsel for the respondent contended that the paragraphs in the RRT’s reasons under the heading “APPLICANT’S CASE” should be regarded as recitals of what was put on behalf of the applicants.  I consider it appropriate to regard them in that light although the comments or critical observations with which they are interspersed have, where appropriate, been taken as statements of reasons for the findings of fact or conclusions gathered under the heading “FINDINGS”.

At the end of its review of the “Country Information” the RRT observed in paragraph 118:

As a brief summary therefore, the human rights situation in El Salvador still has some abuses.  There are still some politically motived killings.  However, the situation is vastly improved from the situation prior to the signing of the peace accords.  The number of those who have been killed or who are at risk is minuscule compared to what it was prior to 1992.  The Applicant and her granddaughter are not and do not have the sort of profile of those who are among the latest targets of the vigilante groups.  I do not accept that people with profiles such as theirs would be at risk in 1996, especially as they appeared to have virtually no problems from 1990 until mid 1995.

By way of conclusion, the RRT then set out these paragraphs under the general heading “FINDINGS”:

120.Based on all the evidence available, and in the light of the discussion above I make the following findings:

121.The applicant was not a credible witness.

122.I accept that she was raped by a soldier in 1981, and that she was again threatened with rape in 1989.  I accept that these were very traumatic events, and that they have impacted on her thoughts and fears for the future of herself and her granddaughter.  I therefore accept that the applicant had and has a genuine subjective fear of persecution.

123.I do not accept that the applicant and her granddaughter were threatened by Black Shadow in 1995.

124.I do not accept that the applicant’s eldest son returned to El Salvador in 1996 and was shot by some men.  As stated above, coincidences do happen, but it is not a reasonable hypothesis that the applicant’s eldest, who left El Salvador in 1981 returned there in 1996.  The evidence for this has come from the applicant’s daughter in San Francisco, including the medical certificate.  I do not accept any of this as genuine.

125.The applicant’s neighbour may have harassed the applicant in the past, however I do not accept that this amounted to persecution.  However, if it did, the applicant could move to another area of El Salvador.  She stated in her evidence that she had friends in different areas, and while possibly difficult and unsettling, it would not be unreasonable for her to move to another part of the country.

126.I have not accepted the evidence provided by the applicant that she has in fact been threatened.  Nor are the applicant and her granddaughter the type of people who are still at risk from the vigilante groups currently operating.

127.As I have not accepted that the applicant is in fact a target of a vigilante group, the issue of State protection does not arise.

128.Based on the evidence available to me, and the findings I have made on that evidence, the applicant does not satisfy the definition of refugee in that:

Although she is outside her country of nationality, and is unwilling to avail herself of the protection of that country, she does not have a well-founded fear of persecution, in the sense that there is no real chance that she will be persecuted in El Salvador if she returns to that country.

Accordingly, the RRT recorded its decision that it was not satisfied that the applicant (Mrs Alvarez) was a refugee and affirmed the decision of the Delegate not to grant her a protection visa.

The applicants sought in this Court to review, pursuant to s 475(1) of the Migration Act 1958 (“the Act”) the decision of the RRT. In its reasons for decision, the RRT identified the question for resolution by it as being whether Mrs Alvarez was a person who “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 country;…”.

Those words are to be found in Art 1(2) of the 1951 Convention relating to the Status of Refugees (“the Convention”) as amended by the “Protocol relating to the Status of Refugees done at New York on 31 January 1967.  The RRT accepted that Mrs Alvarez had satisfied the subjective aspect of the “well-founded fear” test in the sense that she actually believed that she would suffer further persecution if she were to return to El Salvador.  However, it went on to conclude, in paragraph 126 of its reasons quoted above, that Mrs Alvarez did not have a well-founded fear of persecution because she and her granddaughter were not the type of people who were still at risk of persecution in El Salvador in 1996.

That reasoning has been criticised by Mr Flower of Counsel for the applicants as not giving effect to the observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where their Honours observed, at 282:

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial.  Administrative decision-making is of a different nature (Mahon v Air New Zealand [1984] AC 808 at 814). A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term “balance of probabilities” played a major part in those submissions, presumably as a result of the Full Court’s decision. As with the term “evidence” as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.

In Fernandez v Government of Singapore [1971] 1 WLR 987; [1971] 2 All ER 691, the House of Lords considered the test to be applied to determine if a fugitive offender “might, if returned, be prejudiced at his trial”. This raised a similar issue to the assessment of a real chance of persecution. Lord Diplock said (Fernandez [1971] 1 WLR 987 at 993-994; [1971] 2 All ER 691 at 696):

I think it only leads to confusion to speak of ‘balance of probabilities’ in the context of what the court has to decide under … the Act [the Fugitive Offenders Act 1967 (UK)].  It is a convenient and trite phrase to indicate the degree of certitude which the evidence must have induced in the mind of the court as to the existence of facts, so as to entitle the court to treat them as data capable of giving rise to legal consequences.  But the phrase is inappropriate when applied not to ascertaining what has already happened but to prophesying what, if it happens at all, can only happen in the future.

We would adopt that reasoning as applicable to the present case.  The term “balance of probabilities” is apt to mislead in the context of s 22AA, even if it be used in reference to “what has already happened”.

Similarly, in the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 it was observed, 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 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 the present case, the RRT made a number of findings as to what had occurred or not occurred in the past before coming to its conclusion that Mrs Alvarez was unlikely to suffer persecution for a Convention reason if she returned to El Salvador.  Some of those findings, including those noted above that Mrs Alvarez had been raped in 1981 and threatened with rape in 1989, tended to support a conclusion that persecution would continue after 1996.  However, there were other findings, principally derived from the “country information” that, since 1992, political persecution in El Salvador had diminished and the FMNL had been accorded recognition as a legitimate political party.  Nevertheless, other findings recorded by the RRT under the same heading indicated that politically motivated violence, including murder and rape had not been extirpated but was still being perpetrated by “death squads” during 1992.  Among the victims were senior officials of the FMNL and there was evidence that, as late as July 1995 members of the “Black Shadow” or “Sombra Negra” were still regarded as dangerous particularly in the area of San Miguel. 

Despite those findings which left open the conclusion that some FMNL sympathisers would, in January 1997 have had a well-founded fear of persecution, the RRT declined to impute such a fear to Mrs Alvarez.  It did so principally because it did not regard her as a credible witness and did not accept her evidence that she had been threatened by “Black Shadow” in 1995.  It was noted in paragraph 21 of the RRT’s reasons that many of the details provided by Mrs Alvarez (without specifying them) had changed over the course of her application.  The main threat to Mrs Alvarez in 1995 identified by the RRT arose from the incident which she claimed to have occurred on 10 May of that year when the windows of her house were said to have been shattered by machine gun fire and the “Black Shadow” slogan was allegedly daubed on the wall.  Apart from its general findings of her lack of credibility and inconsistency in her story, only two grounds seem to have been advanced by the RRT for its refusal to accept that the incident of 10 May 1995 occurred.  The first was a reference to the evidence of Mrs Alvarez before the RRT as to which it was noted in paragraph 60 of the reasons:

The Applicant was asked what form the slogan on the house took.  She was asked if it was a poster stuck on the house or if it was painted.  The neighbours told her about it and she saw it but she can’t remember what it looked like, she was so terrified.

In a more general way, the RRT relied also on a declaration by Mrs Alvarez at the Australian Embassy in Mexico, apparently before entering Australia, that “I am not suffering persecution in El Salvador and I have no fear of persecution.”

Reference was made in paragraphs 38 and 39 of the RRT’s reasons to a description of the alleged events of 10 May 1995 in a statutory declaration submitted by the applicant four days after her interview by a Delegate of the Minister for Immigration.  Those paragraphs recite:

38.The Applicant continues that on 10 May 1995 at about 5:30pm Victor arrived at her house with his family and a friend.  He told her that armed men had come to his house and shot at him.  The men had left when Victor returned fire with his own gun.  Victor was leaving the neighbourhood immediately.  He left his home and his job and went to Nicaragua.  His family went to stay with his mother-in-law.  I note that the Applicant in her original application form stated that it was common for the death squads to wipe out any entire family.  It therefore appears strange and unlikely that Victor would go to Nicaragua fearing for his life and leave the rest of his family to be shot.

39.Late that evening armed men came to the house and fired shots from a machine gun and painted the slogan “Death to the Communists, Black Shadow.”  The Applicant said it was very quiet and she could hear their footsteps.  She heard them leaving and saw that one of them was in black clothes and had a gun.  The Applicant said that she was terrified by this incident and feared that Claudia could suffer in the same way that she herself had suffered in 1981 and 1989.  They left the house immediately and went to the house of Edgardo’s mother-in-law.  The Applicant said that she was too scared even to return to the house to collect her belongings.  She says she believes she was targeted by the Black Shadow (Sombre Negra) because of her sons’ past involvement in the guerrilla movement.

It seems that evidence to the effect recited in those paragraphs had not been given orally by Mrs Alvarez to the Delegate of the Minister and this weighed with the RRT in rejecting her assertion of persecution on 10 May because, as indicated in paragraph 41 of the RRT’s reasons “Evidence given orally by the Applicant must carry more weight than a written document”. 

However, it is somewhat curious that the RRT also criticised Mrs Alvarez for omitting from her “application” a statement about police interrogation which she had apparently made orally in the course of a Departmental interview.  The paragraphs of the RRT’s reasons dealing with that subject are 31 and 42 in these terms:

31.At the Departmental interview the Applicant stated for the first time that after the arrest of her son, Pedro Armando, in 1981, she was interrogated by the police.  A week after her interrogation at the police station several soldiers came to her house.  One of the soldiers raped her while the others stood round laughing.  This incident was not included in her application as she had not told her family about this.  The incident was not clearly articulated at the interview but was alluded to and in a file note made after the interview by the Delegate.  The Delegate states that she was aware that the Applicant was alleging that she had been raped.

42.While I accept that both the rape and the threatened rape were extremely traumatic for the Applicant, I note that neither of these were mentioned in any form in her application.  While I accept that the Applicant may have found the details too traumatic to describe, especially while her son was present, it is hard to understand why she did not at least mention that she had been interrogated by the police following her son’s arrest.  Nor why she did not mention that she had been threatened by the authorities with regard to her son, Victor’s presence and address.

Another, unrelated, matter which seems to have weighed with the RRT in its rejection of Mrs Alvarez’s assertions of persecution on 10 May 1995 arose from her attempt to rely on the alleged shooting in El Salvador at the end of September 1996 of her son, Pedro Armando.  The RRT’s discussion of this allegation and the reference to the letter from Mrs Alvarez’s daughter, Ms Lopez, of 2 October 1996 in which it is contained is set out in paragraph 66 of the RRT’s reasons which has already been set out above.

A translation of the text of the letter of 2 October 1996 is set out at paragraph 72 of the RRT’s reasons and included a statement that Armando had received two shots, one in the stomach and one in the leg and was in a serious condition in the Rosales Hospital.  The RRT’s comment on that evidence in paragraph 73 of the reasons was:

As noted above, it is an unlikely coincidence that Armando who had not been back to El Salvador since 1981 should return at the time he is alleged to have done so.

A second letter from Mrs Alvarez’s daughter dated 11 October 1996 also quoted in translation by the RRT indicated that Armando was by then out of danger but had been transferred to another hospital for security reasons.

The remaining reference in the RRT’s reasons to Armando’s alleged shooting and hospitalisation in El Salvador is in paragraph 91, one of fifteen paragraphs gathered under the sub-heading “Post-hearing”.  That paragraph states:

There is also a medical report purporting to be from a hospital in El Salvador regarding the situation of Pedro Armando.  This was faxed from a San Francisco number.

The RRT went on in its findings to reject, as a fabrication, the allegation that Armando had been shot in 1996, saying in paragraph 124 which I have already quoted in full:

… The evidence for this has come from the applicant’s daughter in San Francisco, including the medical certificate.  I do not accept any of this as genuine.

It is true that the medical certificate purporting to describe what happened to Armando was sent to Australia by facsimile transmission from San Francisco in the same way as the letters from Mrs Alvarez’s daughter of 2 and 11 October 1996.  However, that is consistent with the medical certificate’s having been received in the first instance by the daughter and transmitted by her to Australia from San Francisco.  Unlike the two letters from Ms Lopez which were handwritten, the medical report was typed and purports to bear the signature of Dr Raul Roberto Trigueros Rodriguez, with a rubber stamp impression indicating that the signatory was attached to the General Health Bureau for Santa Ana.  It also purports to have been authenticated by a notary public who has attested to having received proof of the identity of the issuing medical practitioner.  A translation into English of the body of the certificate was in these terms:

The undersigned medical practitioner at the Social Unit of the San Miguelito Health Centre hereby STATES that Mr Pedro Armando Vazques, forty-three years old, visited my consulting rooms and informed me that on the ninth of October of the current year, he was hospitalised at the Rosales Hospital of San Salvador because of two firearm wounds.  He was adequately treated for these wounds at the said hospital.  He presents with the following injuries: entry hole of the bullet in the right side, described as a penetrating wound in the abdomen, for which an exploratory laparotomy was performed; a wound in the medium third of the right thigh with exit hole at the third distal level in the posterior area of the same thigh, without bone involvement, even in the healing phase.  He informed me that, for security reasons, he requested the discharge from the said hospital;  he was therefore examined and it was established that his condition is still serious, that he needs rest and medical treatment for three months from today.

This medical certificate is issued for the purposes that he may deem appropriate, in the City of Santa Ana, on the twentieth day of October nineteen ninety six.

Another basis on which the RRT declined to accept that Mrs Alvarez was a credible witness in respect of the alleged events of 10 May 1996 was a statement which was attributed to her by a psychologist who made an assessment of Mrs Alvarez on 24 August 1996.  In the course of that assessment it was recited:

Ms Alvarez describes quite angrily and sadly how one day Pedro and her partner arrived and left this girl who she has given birth (sic).  They asked her if she could look after her as it was too dangerous up in the mountains to keep the baby.  Ms Alvarez felt that this was not right.  Nevertheless she has looked after Claudia until today.

The discrepancy between that account and other versions by Mrs Alvarez of how she came to be entrusted with the care of Ms Cortez was noted in these terms by the RRT in paragraph 69 of its reasons:

This is one of the few very specific and detailed incidents described in the report.  It is however a complete impossibility, as the chronology given by the Applicant both to the Departmental officer and the Tribunal indicates that her son, Pedro, had left El Salvador before the birth of the child.  In a submission to the Tribunal dated 14 November 1996 the representative states that her instructions are that the psychologist’s report contains an error in this regard.  I accept that there is an error but I am not satisfied that it is an error made by the psychologist.

The nature of the exercise in which the RRT was required to engage, as explained in the passage from the joint judgment of the High Court in Minister for Immigration v Guo quoted above, involved the making of findings of fact as to past events in order to make a prediction whether there was a real chance of persecution for a Convention reason if the applicants were returned to El Salvador.  However, the making of findings as to certain alleged events which were adverse to the version proffered by the applicants did not relieve the RRT of the need, in the predictive part of its exercise, to take account of the possibility that one or more of its adverse findings as to a past event was wrong.  The final principle enunciated by Kirby J in Wu Shan Liang (supra) for the guidance of courts of review in cases like the present was in these terms (at 291):

8.    Because the test propounded by this Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 involves the necessity of a measure of speculation about what the chances held in store for an applicant, and whether there was a “real chance” that made an established fear of persecution “well founded”, an indication that the delegates had put all speculation out of account would certainly show legal error. So would an indication that the evaluation of the “chance” and its “reality” had been made by a test of weighing the probabilities. Two points must be made here.

First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

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 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” (Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441, per Einfeld J)? 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.

In indicating the way in which his eight principles were to be applied in the decision under review in Guo, Kirby J went on to observe, at 294:

Nor do I consider that the use of the word “speculative”, when appearing in its context, indicates a denial of the proper consideration required by the “real chance” test.  Rather, I think the word was used there by the delegate as equivalent to saying that the suggested consideration was so conjectural as to be properly discounted.  This is the way, for example that the word “speculative” was used by this Court in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643. If a suggestion is judged to be wholly fanciful and without any proper basis in the material placed before the administrator, it will not rise to the level of contributing to the establishment of a “real chance”.

Ultimately, the question is whether the delegate allowed her mind to consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the “real”, as distinct from fanciful, “chances” would bring if the applicant were returned to China. There are several indications that this is precisely what the delegate did.  First, she began her findings in the critical passage by referring to: “what might happen to the Labrador boat people if returned to the PRC.”  Secondly, she repeatedly referred, in terms, to the “real chance” test.  She did so at the close of her consideration of the claim, based upon possible future political persecution.  Thirdly, at the very end of her reasons she appears to have stood back from the particular grounds and considered the case in its entirety.  That is exactly what she was required to do.

In examining the reasons of the RRT in the present case I have been mindful of Kirby J’s injunction in Wu Shan Liang (at 291) that:

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.

See also Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 where Lockhart J, at 708, cautioned that:

… 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.”

However, with all the liberality of approach which those caveats require, I have been unable to discern in the reasons of the RRT in the present case that it ever adverted to the possibility that it may have been wrong in concluding either that the alleged incident on 10 May 1995 did not happen or that Pedro Armando had not been shot in El Salvador at the end of September 1996.  Although reference was made by the RRT in paragraph 14 of its discussion of “THE LAW” to Chan’s case and the need for a finding as to a “real chance” of persecution for a Convention reason, the RRT did not advert to the way in which a possibility of its having made an erroneous finding as to an alleged past event should be taken into account in assessing that “real chance”.  Nor was any reference made to the judgments of the High Court in Wu Shan Liang.  Of course, the RRT had published its reasons in the present case before the judgment of the High Court in Guo was handed down.  However, it is significant that there is no reference in the whole of the reasons of the RRT to the observations of the Full Court of this Court in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 which were published on 26 February 1996 and in which the “real chance” test was canvassed, especially by Einfeld J at 441 in the passage approved by Kirby J in Wu Shan Liang at 291. Einfeld J there said:

In this case the learned first instance judge found that the decision of the tribunal that past adverse circumstances were the result of illegal departure, was not “unreasonable” in that it was not so unreasonable that no reasonable person could have come to it: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; 66 ALR 299. This may well be the case, but with respect it is not necessarily the answer to the question before the tribunal. The “real chance in the future” test will be compromised if it is heavily influenced by findings about the past made on the balance of probabilities. In other words, the substance of the real chance test will be circumvented if the deciding factor is a finding on the balance of probabilities in relation to a past event and there was no analysis of the possibility that it was inaccurate. It is simply not correct to define this conundrum in terms that, if something happened in the past there is a real chance that it will happen again, and if it did not there is no real chance that it will happen in the future.

One approach to this problem can be gleaned from the comments of Sheppard J in Mok.  In that case his Honour was speaking of the inappropriateness of the decision-maker adopting an approach that weighs up evidence and makes a determination on the balance of probabilities.  His Honour said at 253:

So often, for example, in cases involving personal injury, a court or tribunal has to make up its mind whether a particular medical condition is likely to continue indefinitely or to clear up.  Eventually the court or tribunal expresses a preference for the evidence of one doctor to that of another.  In some cases it will thereafter exclude that one and proceed upon the basis of the preferred one.  In other cases it may say that, although the probabilities are that the position will be as predicted by one doctor, it cannot be denied that there is a possibility that the view of the other doctor will after all be the correct one.  The court will then proceed to assess damages, not on the basis that the condition is likely to recur, but on the basis that it is possible that it will.

This approach could be appropriate for the circumstances of a case such as the one at hand.  The tribunal could assess past events on a balance of probabilities test to make its findings, and then engage in the speculation of “what if I am wrong”.  Proceeding on the basis that it was probable that events had transpired as it had found and were not Convention related, but that it was nonetheless possible that they were Convention related, the question of any real chance of persecution on Convention grounds on the appellants’ return to China could be addressed.

The nearest the RRT came in its reasons to asking “What if I am wrong?” in relation to either of the incidents on which I have focused attention was its assessment in paragraph 73 that it was “an unlikely coincidence that Armando who had not been back to El Salvador since 1981, should return at the time he is alleged to have done so”.  Apart from noting that the facsimile copy had emanated from San Francisco, there was no evaluation of the chance that the purported medical report on Armando might be authentic.  The RRT contented itself with saying, in paragraph 124 of its reasons, that it did not accept as genuine any of the evidence in relation to the alleged shooting of Armando.  It is true that in the joint judgment of the High Court in Guo (supra) it was acknowledged at 579-580 that the degree of probability that relevant past events have occurred has a bearing on determining the chance that persecution for a Convention reason will occur in the future.  Their Honours went on to observe, at 580:

If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.

In the present case, however, the tribunal appears to have had no real doubt that its findings both as to the past and the future were correct.  That is, the tribunal appears to have taken the view that the probability of error in its findings was insignificant.  Once the tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational.  Given its apparent confidence in its conclusions, the tribunal was not then bound to consider whether its findings might be wrong.

In the present case, I am not able to infer that the RRT had no real doubts that its findings as to the non-occurrence of the past events which I have identified were correct.  Indeed, I consider on the state of the evidence before the RRT that it would have been unreasonable for it to have attained such a degree of conviction of its own correctness.  In this context it is to be borne in mind, as Black CJ indicated in Teoh v Minister for Immigration (1994) 49 FCR 409 at 413 that “there are occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts.” See also the cases there cited and the recent observations by the majority of a Full Court of this Court (Black CJ, von Doussa, Sundberg and Mansfield JJ) in Minister for Immigration v Singh (1997) 74 FCR 553 at 558-561 where the existence of a general rule imposing a duty on an administrative tribunal to make its own enquiries was denied but it was acknowledged that “in a particular case the [RRT] may indeed be obliged to verify a document in this fashion.” In the present case, it is sufficient to indicate that, whether or not the RRT was obliged to make its own inquiries as to the authenticity of the purported medical certificate related to Pedro Armando, the fact that it had not done so reinforces the inference that it did not regard its conclusion that he had not been shot as so strong that “the Tribunal was not bound to consider the possibility that its findings were inaccurate”; (Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 579).

Conclusion

For these reasons, I have been led to conclude that the RRT’s examination of the question of whether Mrs Alvarez had a well-founded fear of persecution was vitiated by an error of law in the sense in which that phrase is used in s 476(1)(e) of the Migration Act.  It is therefore unnecessary for me to consider the alternative argument advanced by Mr Flower of Counsel for the applicants that the RRT had been guilty of a constructive failure to exercise its jurisdiction in the sense discussed by Beaumont J as a member of a Full Court of this Court in Guo Wei Rong v Minister for Immigration (1996) 135 ALR 421 at 433. Nor is it necessary for me to reach a conclusion on whether the RRT has failed to act according to substantial justice and the merits of the case as required by paragraph (b) of s 420(2) which provides:

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.

A finding on that question would necessitate an expression of preference for one of the two conflicting lines of authority as to whether non-compliance with s 420(2)(b) gives rise to a substantive right of review under s 476 which provides, so far as is relevant:

(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:

(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.

(2)     The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

That conflict of authority has been discussed by a Full Court of this Court in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300 from which the High Court has recently granted special leave to appeal. It is also unnecessary for me to express a concluded view as to whether the “no evidence” ground afforded by s 476(1)(g) has been made out in the present case. However, my inclination is to uphold the submission of Mr Gunst for the respondent that a decision that a particular applicant does not have a well-founded fear of persecution for one of the reasons stipulated in the Convention is not capable of being vitiated on the “no evidence” ground afforded by s 476(1)(g). Such a decision is an ultimate conclusion which the RRT is required to reach upon a proper consideration of all the evidence before it. It is not, for example, a decision on the existence of some disqualification from the status of a refugee which might depend on the ascertainment of one or more facts as to which an applicant for refugee status would not, or could not, be expected to adduce evidence. Thus in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Heerey J observed, at 348:

(i)   It was said there was no material before the tribunal that supported the conclusion that the applicant’s claim that he was regarded as a deserter by the LTTE was exaggerated.  In the initiating application this matter appears in para 3(a)(iii) as an allegation of breach of the rules of natural justice.  Counsel agreed it was more appropriately considered as a “no evidence” complaint under s 5(1)(h) of the AD(JR) Act.  In any event, I do not think there is an arguable case on this ground.  As a decider of factual issues, the tribunal had to assess this particular claim advanced in support of the applicant’s case.  In substance the tribunal came to the conclusion that the claim was exaggerated.  The onus was on the applicant.  A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

Since it is common ground that the application of Miss Cortez is intertwined with, and dependent upon the outcome of, that of Mrs Alvarez, I shall, for the reasons which I have endeavoured to explain, make orders in each application:

1. That the decision under review be set aside.

1. That the matter be remitted to the Refugee Review Tribunal, differently constituted, for reconsideration according to law.

1. That the respondent pay the applicant’s taxed costs of the application, including any reserved costs.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            

Appearances in VG 37 and VG 40 of 1997

Counsel for the Applicant:	Mr A Flower
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr C Gunst
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 August 1997
Date of Judgment:	10 August 1998