De Motte, Larry Ambrose v Minister for Immigration & Ethnic Affairs

[1997] FCA 340

CATCHWORDS

MIGRATION - application for review of decision of Refugee Review Tribunal ("the tribunal") refusing refugee status - grounds of review - whether the obligation to act according to "substantial justice" and the merits of the case proscribes a procedure for the purposes of review - whether "substantial justice" is equivalent to "natural justice" - "substantial justice" is  a reference to the end result of the process - the tribunal is under an obligation to decide in accordance with the substance and the merits of the matter - whether tribunal failed to properly consider the applicant’s claim - whether tribunal incorrectly applied the concept of "real chance" - whether tribunal incorrectly applied the concept of "persecution"

Migration Act 1958, ss 420, 476

Chan v Minister for Immigration and Ethnic Affairs (1989)
169 CLR 379, cited
Lek v Minister for Immigration and Ethnic Affairs (1993)
117 ALR 455, cited
Minister for Immigration and Ethnic Affairs v Singh (unreported, 24 January 1997), cited
Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996), not followed
Zakinov v Gibson (unreported, 26 July 1996), not followed
Than Phat Ma v Billings (1996) 142 ALR 158, not followed
Jovicic v Minister for Immigration and Ethnic Affairs (unreported, 18 March 1997), not followed
Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996), applied
Eshutu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474, applied

LARRY AMBROSE DE MOTTE - v -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and
REFUGEE REVIEW TRIBUNAL

No VG 828 of 1995

Tamberlin J
Sydney (Heard in Melbourne)
8 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )                 
VICTORIA DISTRICT REGISTRY       )    No. VG 828 of 1995
GENERAL DIVISION                 )

BETWEEN:          LARRY AMBROSE DE MOTTE
  Applicant

AND               THE MINISTER FOR
  IMMIGRATION &
  ETHNIC AFFAIRS
  First Respondent

REFUGEE REVIEW TRIBUNAL
  Second Respondent

CORAM:       TAMBERLIN J
PLACE         SYDNEY
             (Heard in MELBOURNE)
DATED:       8 MAY 1997

MINUTE OF ORDERS

The Court orders that the application be dismissed.

NOTE:     Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY       )    No. VG 828 of 1995 GENERAL DIVISION                  )

BETWEEN:          LARRY AMBROSE DE MOTTE
  Applicant

AND               THE MINISTER FOR
  IMMIGRATION &
  ETHNIC AFFAIRS
  First Respondent

REFUGEE REVIEW TRIBUNAL
  Second Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
             (Heard in MELBOURNE)
DATED:       8 MAY 1997

REASONS FOR JUDGMENT

TAMBERLIN J:
This is an application for review of a decision of the Refugee Review Tribunal ("the tribunal") affirming a decision of a Ministerial delegate refusing an application for a Protection Visa.

The applicant, a Sri Lankan national, arrived in Australia on 12 September 1989. The applicant submitted an application for refugee status in late July 1990, this was received by the Department of Immigration and Ethnic Affairs ("the Department") on 23 August 1990.

As from 1 September 1994, by operation of s 39 of the Migration Reform Act 1992, the application was deemed to be an application for a Protection Visa. The application was refused by a Ministerial delegate on 19 September 1994. A requirement for the grant of a Protection Visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). See s 36 of the Migration Act 1958 ("the Act") and the definition in s 5(1) of the Act of Refugees Convention and Refugees Protocol ("the Protocol"). The application was refused on the grounds that the applicant did not meet this criterion.

At present the applicant remains in Australia as a result of a Bridging Visa, which is valid until 28 days after a final decision is made on the present application.

Background
The applicant was a member of a minority Catholic group in Sri Lanka known as the Burgher community. He lived all his life in Colombo until he came to Australia. He does not wish to return to Sri Lanka because he fears that he will be in danger from members of the Janatha Vimuthki Peramuna ("JVP") which, during the early seventies and late eighties, was an openly violent militant force opposed to the government.

The JVP was formed in or about 1965. In 1971 it instituted an uprising against the government. The uprising was curtailed and the JVP became dormant with further uprisings not foreseen. However, the JVP recommenced violent and terrorist activities against the state in the period of 1988 to 1990. The militant activities of the JVP attracted violence from government security forces, comprising the army and police, in response.  The result was an environment of aggression and danger to opposing factions and those sympathising or associating with either side. By the early 1990's government security forces had effectively "crushed" the JVP.

From about March 1989, the JVP attempted to convince the applicant to join their movement. At the time he was involved in church and social work, activities which were perceived as contrary to the JVP's aims. JVP members on occasions handed him pamphlets on his way to work. When he failed to join them, they gave him letters which threatened to kill him if he resisted. This occurred five or six times, with the final letter stating that the applicant was on their "hit" list. The applicant gave the threatening letters to the government authorities but these authorities said that they had their hands full. They would not take any action until something happened to the applicant. In June/July 1989 the JVP visited his parents and asked about the applicant's whereabouts. On a number of occasions his parents complained to the police and the armed forces about harassment.  The authorities advised him to move to a safer location. Towards the end of July he gave up his employment and moved to a village to avoid the JVP.

The applicant learned that one of the persons with whom he had undertaken social work had been bumped off his bike by a passing motorist some time before December 1990. In about May 1994 he heard that another person with whom he had worked was found hanged with traces of drugs in his body. The cause of death was unknown. These incidents reinforced the apprehensions of the applicant as to his well-being and safety.

The applicant came to Australia because he was afraid of the JVP. After his departure from Sri Lanka, the JVP continued to visit his parents inquiring about his whereabouts and claiming that he was still in hiding. The JVP also threatened the applicant's brother and demanded to know the applicant's whereabouts. This led his brother to migrate to Canada in January 1990.  Before the hearing the applicant had stated that the JVP did not bother his mother and sister once they knew that the applicant and his brother had left Sri Lanka. At the hearing he initially claimed that the JVP continued to visit his family for a year or two after his brother departed to Canada. He subsequently stated at the hearing that the JVP did not harass his family after he and his brother departed, but they just checked with them for a year or two after his brother's departure.

The applicant believes that his life will be endangered by the JVP if he returns to Sri Lanka and because of his Burgher origins he will not receive protection from the authorities. Sooner or later the JVP will, in his view, inevitably re-emerge as they have done before. He also fears that he would be at risk from the security forces responding to renewed danger as the JVP would allege that he had helped them. If he went to live in a different part of Sri lanka he would engender suspicion. The security forces would suspect him because of his lengthy absence overseas. He will also find it difficult to get employment because of the ongoing ethnic violence in Sri lanka and his Burgher origins.

The tribunal decision
The tribunal set out the accepted test as to what is a "refugee" expounded by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, that is an applicant must have a "well-founded fear" of persecution. There is reference in the tribunal's reasons to the requirement that there must be both a subjective and objective element. The tribunal noted the principle that a fear of persecution is well-founded if there is a real chance that the refugee will be persecuted if he or she returns to the country of nationality. In order to determine whether there is a real chance there must be a substantial as distinct from a remote or fanciful chance of persecution. The tribunal then directed its attention to the meaning of the expression "persecution" as explained in Chan, and observed that the persecution in question must be for a Convention reason. It was also noted that the relevant date for determining whether the well-founded fear existed was the date of determination: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455 at 462-463; Minister for Immigration and Ethnic Affairs v Singh (unreported, 24 January 1997), a decision of the Full Federal Court.

It is common ground that the applicant, at the time when he left Sri Lanka and at the relevant time, entertained a subjective fear of persecution and that as at 1989 he had a well-founded fear of persecution.

However, the tribunal found that by reason of a change in the circumstances prevailing in Sri Lanka between 1989 and September 1995 the fears of the applicant had ceased to be "well-founded." In reaching this conclusion the tribunal had regard to information from various sources, including publications by Amnesty International, Australian diplomatic communications and intelligence, the views of an international expert as well as other relevant publications and intelligence from international and Sri Lankan sources.

The relevant assessment undertaken by the tribunal is set out in the reasons as follows:

"Fear of Security Forces

Whilst I accept that the Burgher minority has been subject to discriminatory treatment in Sri Lankan society, the applicant completed his secondary education, progressed to further studies and was continuously employed until his resignation in 1989. In cable O.CL32936 of 3 September 1991, the Australian Embassy in Colombo commented:

Because they are not party to the ethnic dispute, Burghers are less repeat less likely to be discriminated against or be the targets of violence than members of any other ethnic group. As long as they stand out of Tiger controlled territory and the ethnic borderlands (and the community is overwhelmingly concentrated in the urbanised south west) Burghers face no problem at all.

The applicant and/or his parents sought protection from the authorities in 1989. The authorities' response does not suggest that they were unwilling to provide protection to the applicant because of his ethnicity. The applicant was never involved in the JVP in any way. The security forces never displayed any adverse interest in him or sought him out at any time. Given the lack of interest in the applicant on the part of the authorities, the absence of any political activity on his part and the fact that he had left Sri lanka legally, I find that there was no real chance of the applicant being persecuted by the security forces at the time of his departure to Australia.

The applicant left Sri Lanka six years ago. Nothing has happened since his departure to indicate that the authorities have any interest in him. Having regard to the country information referred to earlier in this decision and the absence of any political activity on his part, I find that the chance of the security forces persecuting the applicant on return is insubstantial. In the absence of any other evidence to suggest that the applicant would be at risk on return, I do not consider that the mere fact that he has been overseas for some time would create a real chance of persecutory treatment. As a Burgher with no history of Tamil links, there is no evidence that he would be suspected of making links with expatriate Tamils.

I find that the applicant's fear of the security forces is not well-founded.

Fear of JVP

I accept that the applicant may have had a well-founded fear of the JVP at the time of his departure to Australia at the height of the JVP violence. Despite his Burgher origins, he had been threatened by the JVP on a number of occasions. His constructive work in the church and community may have led the JVP to seek his support so that he would discontinue that work.

The applicant left Sri Lanka six years ago. The country information referred to earlier in this decision indicates that the JVP are not now engaged in the sort of harassment, terror and forcible recruitment that characterised its activities in the late 1980's. Nor is there any evidence to suggest that they will embark on such activity in the foreseeable future. The JVP has been a marginal force since the early 1990's. Having regard to the country information about prevailing conditions in Sri Lanka, the lapse of time since the applicant departed the country and the lapse of time since any interest was expressed in him by the JVP, I find that the chance of the applicant being subjected to persecutory treatment by the JVP on return is insubstantial. He does not have a well-founded fear of the JVP.

Other claims

Mr Raveendran submitted that the applicant was unable to express his political opinion. The applicant stated that he was harassed by the JVP when he voted. This did not amount to persecutory treatment, nor is there any evidence to suggest that the applicant was persecuted on the basis of his political opinion or that there is a real chance of this occurring in future.

As for the applicant's claim that he would find it difficult to obtain employment on his return, his employment history would not suggest that he would be unable to find a job for a Convention-related reason.

The applicant did not claim that he was unable to practice his religion. Indeed, he was an active member of the church community. He may have had some difficulties in carrying out his church activities (for example, he had to appease Buddhists and give them some assistance rather than simply help his own church community).  However, these difficulties are not evidence of persecutory treatment nor do they indicate that there is a real chance of the applicant facing persecutory treatment on account of his religion."

On the present hearing the applicant does not challenge the finding that his fear of the security forces was not well-founded. This means that the appeal is directed to the extent and nature of his fear of the JVP.

The review
Central to the applicant's case is the proposition that s 420 of the Act imposes a substantial obligation on the tribunal to proceed in such a way as to accord substantial justice and reach a decision based on the merits of the particular case.

Section 420 of the Act is concerned with the way in which the tribunal carries out its function. It provides:

"420(1) The Tribunal, in carrying out its functions under this 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."

It is common ground that the only basis for the purpose of the present case in which the subject decision of the tribunal can be reviewed is under Part 8 (ss 474-486) of the Act.

For present purposes it is necessary to consider the provisions of s 476 of the Act which relevantly provides:

"476(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 the Act or the regulations to be observed in connection with the making of the decision were not observed;

.....

(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.

(3) The reference in paragraph (1) (d) to an improper exercise of a power is to be construed as being a reference to:

(a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)an exercise of a personal discretionary power at the direction or behest of another person; and

(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)taking an irrelevant consideration into account in the exercise of a power; or

(e)failing to take a relevant consideration into account in the exercise of a power; or

(f)an exercise of a discretionary power in bad faith; or

(g)any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c)." (Emphasis added)

Previous decisions
Three differing approaches have been taken to date by members of this Court in relation to the interpretation and consequences of s 420.

The first is exemplified by the decision of Olney J in  Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996). His Honour there considered a submission that the tribunal had failed to determine the application in accordance with substantial justice and the merits of the case. The submission was that such a failure was an available ground of review under s 476(1)(a) of the Act which provides that an application to review a judicially reviewable decision may be made on the ground that procedures required by the Act were not observed.

His Honour did not accept these submissions because in his view the obligation imposed by s 420(2)(b) did not bear the character of a "procedure" required to be observed within s 476. He pointed to the inconsistency between the legislative scheme embodied in Part 8 of the Act and s 420 and expressed the view that if s 420(2)(b) was regarded as a "procedure", that provision would effectively provide for a review on the merits which was a result clearly contrary to that contemplated by the scheme disclosed by Part 8. In his Honour's view, the obligation to act "according to substantial justice and the merits" did not involve a "procedure" and therefore could not give rise to any right of review under s 476(1)(a). Accordingly, the application for review was dismissed.

A similar approach was taken by North J in Zakinov v Gibson (unreported, 26 July 1996), where his Honour held that a challenge to a decision on the merits did not involve a contravention of any "procedure" set out in s 420 and therefore could not give rise to a review.

A second and different approach was taken by Drummond J in Than Phat Ma v Billings (1996) 142 ALR 158. In that case, Drummond J considered that s 420 imposed an obligation on the tribunal which governed the kind of procedure the tribunal must follow in applying the statutory criteria in the course of reviewing a decision (142 ALR at 164).

His Honour saw no distinction between the procedures called for by s 420 and those necessary to satisfy the requirements of natural justice.

In the end result, however, he considered that the specific exclusion of "natural justice" as a ground of review by s 476(2) produced the result that while s 420 provided an obligation to act in accordance with natural justice principles, there was no remedy for breach (142 ALR at 168).

The decision of Drummond J in Ma was followed by Goldberg J in Jovicic v Minister for Immigration and Ethnic Affairs (unreported, 18 March 1997).

A third differing approach is that taken by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996). That decision related to an application for review under s 476(1)(f) which provides for review on the ground of actual bias.

His Honour did not consider that the somewhat forthright remarks of the tribunal in that case indicated actual bias or that the tribunal had failed to act according to substantial justice or fairly when the proceeding was viewed overall. He was not persuaded that substantial justice had not been afforded to the applicant. In the course of his judgment, at 51-52, his Honour said:

"Section 420 is mandatory in its requirement that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s. (2)); and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review mechanism that is fair, just, economic, informal and quick (s. 420(1)).

....

If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s. 476(1)(a), the procedure being to act according to substantial justice in reviewing a decision."

It is apparent from the foregoing that his Honour considered s 420 was more than a mere exhortation. He also considered that there was room for s 420 to operate beyond the excluded grounds set out in s 476(2) and (3). In other words the obligation in s 420(2)(b) was not in his view co-extensive with and fully covered by the grounds of review excluded by s 476.

The approach of Lockhart J in Singh was accepted by Hill J in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 at 484-485, where his Honour said:

"As a matter of construction, I see no reason to depart from the view expressed by both Lockhart and Davies JJ [see Dai v Minister for Immigration & Ethnic Affairs (unreported, 18 September 1996 at 17)] that s 420 specifies at least one of the procedural requirements to which s 476(1)(a) refers. But having said that, it is necessary to observe that the procedural specification in s 420 is somewhat vague. It imports no more than that the review mechanism is to be fair and just. The reference to the merits of the case in s 420(2) cannot be read in isolation. The section could never be construed as creating a form of merit review. ....

The references ... to fairness and justice in s 420 must be read subject to the provisions of s 476(2) so that, if the injustice would involve a breach of the rules of natural justice, then judicial review will be precluded, notwithstanding the terms of s 420. This so narrows the ambit of s 420 as to leave little scope for its operation, but that is not to say s 420 has no role at all."

In that case his Honour decided that the tribunal's conclusion totally lacked logic and that no reasonable tribunal could possibly reach the conclusion which the tribunal had reached. Nevertheless, there was no available review on that ground because of the provisions of s 476(2)(b), which precludes reliance on Wednesbury unreasonableness.

The present case
Section 420(2) is concerned to ensure that the tribunal proceeds in such a way that it gets to the substance of the matter and decides the essential questions in issue between the parties. The tribunal is not bound by technicalities, legal forms, or even rules of evidence in achieving this goal. The requirement is that the court should not be distracted from the substance of its task by incidental or peripheral issues or what might be described as formal point taking. The court must proceed to ensure the substance of the matter is determined rather than incidental technical formalities.

The effect of the mandatory language in s 420 is that it operates to impose a binding obligation on the tribunal to follow "a procedure" directed to produce a result in accordance with substantial justice and the merits of the case. The mandate to act according to substantial justice is the prescription as to the way in which the proceeding is to be conducted. In that sense it prescribes a procedure. Although the operation of s 420 is subject to and confined by s 476, nevertheless, there remains a residual area in which s 420 can operate notwithstanding the specific exclusions of s 476. Where the failure to act in the specified manner is not excluded, then there is room for s 420 to operate.

With respect, I do not agree with the view expressed by Drummond J in Ma, that the requirements of s 420 are co-extensive with the principles of natural justice and are thereby excluded so that while s 420 mandates a procedure, the remedy for breach of that procedure is taken away by s 476. There is in my view, a significant difference between the duty to observe the requirements of natural justice and a requirement to act according to "substantial justice" and the merits of the case. Reference to "substantial justice" and merits is a reference to the end result of the process, namely the decision being in accordance with the substance of the matter and in accordance with the merits. To the extent that s 476 takes way some of that obligation then the effect of s 420 is narrowed. This does not mean that it can have no operation. By way of example, if in a particular case a Court finds perceived bias but not actual bias, then it might be said that there is room for s 420(2)(b) to operate because the tribunal had not acted according to substantial justice or the merits of the case because perceived bias is normally a ground for setting a decision aside.

The question then arises whether the applicant has made good a case that there has been a breach of s 420.

The applicants's case in essence is that his fundamental concern as to his safety and well being was not addressed by the tribunal or given any weight.

This concern of the applicant was that the history of the JVP indicated that there is a real chance that it will again revive in a form which could place him in danger or in circumstances where there is more than a fanciful possibility that he will be persecuted by the JVP. He points to the fact that in the seventies the JVP was suppressed and lay dormant for many years. Nevertheless, the JVP survived as a powerful violent force in the late eighties and early nineties. Although it is conceded there can be no certainty that there will be a resurgence, there is a real chance that notwithstanding its diminished role over recent years, the JVP may well revive and that he may then be in danger.

The tribunal's error in his submission was that it failed to properly consider the history of the JVP and its resilience and therefore his concern as to danger based on that history was not properly considered.

Viewed in one way the submission is in effect that the tribunal did not take the previous history into account. This approach would in substance be an allegation that there had been a failure to take into account a relevant consideration. This ground is an excluded ground of review under s 476 and in accordance with the views of Hill J, with which I agree, this ground could not be relied on under s 420 because the language of s 476 clearly intends to exclude it. However, from another viewpoint, the submission might be summarised as being that the tribunal ignored, overlooked, or failed to consider an important line of argument or submission placed before it and in so doing failed to act according to substantial justice and the merits of the case. If this in fact occurred then there may be room for an argument that s 420 operates because the basic claim made by the applicant has not been dealt with or has been ignored.

The difficulty with this submission is that the approach and reasoning disclosed in the reasons for decisions are such as to lead me to the conclusion that the tribunal did not err in this respect and that there was no failure to provide substantial justice or act according to the merits of the case.  A close consideration of the reasoning indicates that the tribunal gave ample consideration to the relevant reports and cables from Australian and other sources as to changed circumstances. Attention was paid to international intelligence and sources from within Sri Lanka itself over the relevant period from 1989 to 1995.

Of particular importance is the fact that the reasons refer to the statements of Professor Manor of the University of London where he specifically states that:

"... I accept that the JVP in Colombo and elsewhere is not a significant force yet. But the conditions which produced the JVP still exist. These are poverty, discrimination against certain caste groups, and lack of employment and other opportunities for young people. The politics of the Sri Lankan government are inadequate to have much impact on these problems, so there is a strong possibility that the JVP could revive.

... The security forces remain notoriously indiscriminate in their brutalities.

In my view the risk from the security forces is in fact much more significant now (than any Tamil or JVP terrorist threat). The principal source of terrorism in Sri Lanka has long been and remains the state ... There is absolutely no guarantee that what is called 'low profile' JVP supporters will not be targeted...."

Necessarily involved in a consideration of the possibility of a renewal or resurgence of the JVP is the past history of the movement. It was open to the tribunal to conclude that in expressing views as to the possibility of revival of the JVP, as a powerful force, the intelligence sources had in mind the history of the movement. The reasons refer to the formation of the JVP and to its uprising in 1971. There is then a detailed reference to the reign of terror and violence prevalent in the late 1980's and early 1990's.

The question of whether the JVP was likely to revive was the subject of detailed evidence which included differing views. These included advices, on the one hand, that the JVP had been destroyed and eliminated with little prospect of renewal. On the other hand, there was the view of Professor Manor that there was a "strong possibility" that the JVP would revive. On this evidence, it was open to the tribunal to conclude on the basis of this conflicting material and opinions that the applicant's fear of persecution was not well-founded.

In assessing the question whether the fear which was entertained by the applicant was well-founded, regard could also be had to the fact that it was common ground that when the applicant left Sri Lanka in 1989 he then had a well-founded fear. Furthermore, at that time the evidence was that he was on a "hit" list which gave rise to a real risk of harm and justified his fears.  The real issue in the case is whether it was open to the tribunal to decide that circumstances had so changed that this view was no longer well-founded. Of course, where there was a well-founded fear in 1989, compelling reasons were required to be presented in order to ground the displacement of that well-founded fear. The question as to the force and weight to be given to the evidence was a matter for the tribunal and not this Court. This is not a case where the conclusion of the tribunal was so grossly absurd or unreasonable as to necessarily bespeak error.

A reading of the tribunal's decision indicates that it gave detailed consideration to the changes in circumstances and took into account the concerns of the applicant. It could not
properly be said that it failed to deal with his claim for refugee status or that it ignored his arguments.

Accordingly, I am not persuaded that the tribunal erred in any way, neither the applicant's claim nor a fundamental argument was overlooked or ignored. The applicant has not made good a case that the tribunal failed to act according to substantial justice and the merits of the case.

Several other matters which were said to amount to errors of law were raised but in my view there is no substance in any of these submissions. Broadly, they relate to allegations that the tribunal incorrectly interpreted the notion of "real chance" and that it did not properly asses what the chances of persecution were. On its face, it is clear that the tribunal set out the correct principles and embarked on the correct test. Moreover, the whole thrust of its reasoning was directed to an assessment of what the chances of persecution were or might be anticipated to be as at the relevant date.

Nor am I satisfied that the tribunal failed to correctly apply the concept of "persecution" to the facts before it.

In addition, there is nothing to indicate that the tribunal erred by requiring proof of persecution to a standard beyond the test required by the Convention. It squarely addressed the real chance test.  Finally, it is said that the tribunal erred in failing to speculate as to whether there was a real chance of persecution on a resurgence of the JVP. As I read the decision, this issue was one of central importance with the tribunal specifically directing an examination of this question.

Conclusion
I am not persuaded that the tribunal failed to follow procedures specified by the Act. Nor am I satisfied that there is any error of law disclosed in the reasons of the tribunal. Accordingly, this application should be dismissed. I make no order as to costs.

I certify that this and
the preceding twenty-two (22)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  8 April 1997              

Counsel for Applicant:               Mr T Hurly  

Solicitors for Applicant:             Wisewoulds

Counsel for Respondent:               Mr C Gunst  

Solicitor for Respondent:             Australian Government Solicitor

Date of Hearing:  (Melbourne)          8 April 1997  

Date Judgment Delivered:                   8 May 1997