Kaluthanthrige, Don Ajith v Minister for Immigration and Multicultural Affairs
[1997] FCA 1293
•26 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
MIGRATION - refugee status claim - political involvement in Sri Lanka - murder of family member - change of political climate - assessment of risk as not constituting a “real chance” of persecution for a Convention reason - attempt to review decision of Tribunal on the merits - application dismissed.
Migration Act 1958 s 29, s 36
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chen Ru Mei v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405
Desir v Ilchert 840 F 2d 723 (9th Cir 1988)
Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 127 ALR 223
DON AJITH KALUTHANTHRIGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
WAG 124 of 1996
FRENCH J
PERTH
26 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 124 OF 1996
BETWEEN:
DON AJITH KALUTHANTHRIGE
APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
FRENCH J
DATE OF ORDER:
26 NOVEMBER 1997
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
The application is dismissed.
The Applicant is to pay the Respondent’s costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WG 124 of 1996
BETWEEN:
DON AJITH KALUTHANTHRIGE
APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
FRENCH J
DATE:
26 NOVEMBER 1997
PLACE:
PERTH
REASONS FOR JUDGMENT
FRENCH J
HISTORY OF THESE PROCEEDINGS
Don Ajith Kaluthanthrige (“Kaluthanthrige”) is a Sri Lankan national, born on 8 November 1966. On 4 March 1990 he entered Australia at Perth as a student. He was issued with successive student entry permits, being enrolled at Curtin University where he was studying for a Bachelor of Architecture degree. On 27 July 1994 he applied for refugee status and for a Protection (Permanent) Entry Permit.
On 19 December 1995 a delegate of the Minister refused his application. On 11 January 1996 Kaluthanthrige applied to the Refugee Review Tribunal for review of the delegate’s decision. On 22 July 1996 the Tribunal affirmed the delegate’s decision.
On 19 August 1996, Kaluthanthrige filed an application for an order of review of the Tribunal’s decision seeking an order that its decision be set aside and the matter be remitted to the Tribunal to be dealt with according to law. The application, as filed, named the Tribunal as respondent. By consent, on 16 September 1996, Nicholson J ordered that the Minister for Immigration and Multicultural Affairs be substituted as the respondent.
On 18 February 1997 the respondent lodged a Notice of Objection to Competency. It was based upon the proposition that the Court had no jurisdiction to review the decision of the Tribunal except under Part 8 of the Migration Act. Further it was contended that the Court had no jurisdiction under Part 8 as the Minister was not a party when the application was lodged and was joined as a party more than 28 days after Kaluthanthrige had been notified of the Refugee Review Tribunal’s decision. The latter point was raised notwithstanding that the Minister was joined by consent.
The Objection as to Competency was stood over having regard to pending consideration of like issues in other proceedings in the Full Court and the application for review was argued on its merits.
FACTUAL BACKGROUND
The Tribunal’s reasons for decision set out, under the heading “CLAIMS”, what are described as “the applicant’s claims to refugee status together with relevant background information”. There follows a section headed “ASSESSMENT” which proceeds upon a general acceptance of the strictly factual elements of Kaluthanthrige’s evidence and submissions. It is the evaluation of the significance of the factual history that appears to have led the Tribunal to reject Kaluthanthrige’s application.
For the purposes of this application I assume that the Tribunal has accepted the factual matters put forward by Kaluthanthrige as outlined in the Tribunal’s decision.
Kaluthanthrige is an ethnic Sinhalese who attended school in Maharagana and Colombo and from 1986 to 1990 trained as a camera operator. He was a member of a large family. They lived near Colombo and had many visitors, particularly young people. Members of the family often expressed opinions which were critical of the Sri Lankan government.
Although the family was not involved in politics it had a reputation among some people as being supportive of the Janatha Vimukthi Peramuna (JVP), a radical Sinhalese Marxist group said to have been involved in terrorist activities. Members of the family had read Marxist literature and while sympathetic to the concerns of the JVP did not agree with its policies of violence and did not like or trust its leader, Rohana Wijeweera. Family members went to JVP meetings and encouraged others to protest but did not protest themselves.
On 8 September 1989, masked, armed men came to the family home and said they wanted to take Kaluthanthrige’s brother, Mervyn, away for questioning. There was initial resistance, Kaluthanthrige’s father was attacked and family members locked in a room. Mervyn agreed to go with the men. The family members locked in the room escaped the next morning and went to the police who said they could do nothing to help as they did not know who had taken Mervyn.
Later that day Mervyn’s body was found by neighbours at a nearby lake. He had been shot, the cause of death as stated in a certificate presented to the Tribunal being “assault by firearm - Homicide”. The family burned its Marxist literature for fear of its discovery and possible further suspicion of JVP involvement.
Kaluthanthrige’s parents told him he should leave Sri Lanka as it was too dangerous. However before he could come to Australia he had to raise the funds for fees and fares. Money had to be raised for other siblings to leave also. Kaluthanthrige was not able to leave until March 1990. In the meantime he kept a low profile staying with various relatives. He worked by arrangement with his existing employer on a contract basis at different locations.
Upon his arrival in Australia, Kaluthanthrige did not immediately apply for refugee status as he feared that, if refused, he might be sent back to Sri Lanka immediately.
The basis for Kaluthanthrige’s case as set out by the Tribunal is that if he returns to Sri Lanka he will be killed as his brother was. He believes that either the JVP or the government will kill him for his imputed political opinions.
THE TRIBUNAL’S ASSESSMENT
The Tribunal was unable to conclude whether the armed men apparently responsible for the murder of Kaluthanthrige’s brother were JVP or government agents. It considered the latter possibility more likely given the pro-JVP sympathies of the family. It could not, however, discount the possibility that the men were JVP.
Whichever was the case, the men had the whole family in their power but harmed only Mervyn. They let the others go and had not subsequently threatened any other family member. Although Kaluthanthrige subsequently went into hiding he was working for the same employer. Anybody with an interest in locating him would have been able to do so. The Tribunal considered that Kaluthanthrige had not at any time faced a real chance of persecution from his brother’s killers whether they had been JVP or government forces. It noted that he had obtained a passport in his own name in the normal way without any difficulties. Reference was also made to cable advice from the Australian High Commission of 21 November 1994 that the JVP was now regarded as a law-abiding organisation and was not subject to persecution by Sri Lankan authorities. That advice included the following statement:
“The JVP is not a proscribed organisation.
A person would no longer be detained simply because of membership or past membership of the JVP. The new government has set up a commission to inquire into the status of persons held under detention orders. Many of these persons were former JVP members and suspects. Following the recommendations of the commission’s interim report, over 100 persons have already been released. It is understood that the government’s policy will now be that people will be indicted upon criminal charges or they will be released. Thus involvement with the JVP during the 1988-90 communal unrest, of itself alone, will no longer be a basis for detention, unless a case exists to prosecute for criminal actions.
The new Sri Lankan government accepts the JVP as a minor political entity.
The JVP participated in the presidential elections under its political pseudonym, the Sri Lanka Progressive Front (SLFP).”
The advice was repeated in a cable of 27 February 1995 adding that known former JVP operatives and current JVP members held significant positions in government, semi-government, academic institutions and private business. A further cable of 28 August 1995 was to similar effect but added that:
“Our discussions with both international and local organisations concerned with the monitoring of persons detained by security forces also suggest that there are few, if any, cases of Sinhalese being detained for alleged terrorist activities. One reliable source suggested that where such cases were occurring - eg Sinhalese youths were being detained under the Prevention of Terrorism Act (PTA) for alleged JVP activities - it was more often the case that the police in fact wanted to charge the youths with “ordinary” crimes, but the police were using the JVP charge as a pretext to take advantage of greater powers of detention, time for questioning etc, available to them under the PTA, as opposed to the normal code of criminal procedure.”
The Tribunal was not prepared to infer from this that police were still harassing JVP members and abusing their powers or that JVP activists from the 1988-89 period must be excluded from politics. There was a submission put that a current JVP Member of Parliament, Mr Galapatthy, had made allegations of discrimination. The Tribunal was not prepared to give much weight to the report of his uncorroborated claims. Reference was also made to advice dated 21 September 1995 from the United Nations High Commission on Refugees which indicated that since 1992:
“the situation of former JVP activists, members and supporters has continuously improved and any remaining risks disappeared (at the latest) shortly before the parliamentary elections in Sri Lanka (16 August 1994) in which JVP participated and agitated and won one seat in parliament. JVP also launched a candidate for the presidential elections (9 November 1994). The JVP candidate withdrew his ticket and recommended his followers to vote for the Peoples Alliance candidate, i.e. the present President, then Prime Minister, Ms. Chandrika Kumuratunga, after the same had promised in writing to abolish the executive presidency. Repeatedly JVP expressed its satisfaction with the government.
.......
The JVP is active in public, announced its intention of reunifying various factions in a democratic party. In April 1995 JVP engaged openly in fund raising activities. During the same month the JVP gave evidence before the Parliamentary Select Committee for Constitutional Reforms. In May 1995 JVP celebrated its 30th anniversary with a public annual session at the Town Hall in Tangalle (Southern coast), JVP activities, including by former JVP activists supporters and members do not longer lead to intervention by the security authorities.”
The UNHCR advice concluded:
“Therefore and as observers amongst the Human Rights groups but also from various embassies agree, membership and support of JVP as well as political activities for JVP as such do no longer justify a well-founded fear of persecution.”
Also referred to was the United States Department of State’s Country Reports on Human Rights Practices for 1995 which said, inter alia:
“With the legalization of the Sinhalese Janatha Vimukthi Peramuna (JVP), a party which led an insurgency in the south suppressed by the Government in 1988-89, JVP members were no longer subject to arrest and torture as in the past.”
The Tribunal accepted that the ability of a political party to participate in elections is not determinative of whether its members face a real chance of persecution. Nevertheless it held it was a significant factor to be taken into account. The critical point was that, apart from this, “JVP activists are simply not being persecuted any longer...”.
Although it was submitted to the Tribunal that the situation in Sri Lanka might change and that JVP members might once again become subject to persecution, the Tribunal took the view that mere speculation based solely upon generalised statements about what had happened in the past were not sufficient to enable it to say that it was reasonably foreseeable that the situation could arise where the applicant would face persecution due to past support for the JVP. There was no concrete evidence of any return to those policies or practices. On this basis the Tribunal found that Kaluthanthrige did not face a real chance of persecution by government forces in Sri Lanka because of his past support for the JVP.
Nor was the Tribunal satisfied that there was any evidence to suggest that Kaluthanthrige had ever done anything to antagonise the JVP and no reason to believe the JVP would have any adverse interest in him.
While it was said to be understandable that anybody would be apprehensive of returning to Colombo in light of recent terrorist activities by Tamil militant forces, it could not be said, according to the Tribunal, that this activity had reached a level where an ordinary inhabitant of Colombo faced a real chance of becoming a victim. Further, there was nothing to suggest that terrorist attacks were Convention related in any way.
The Tribunal was prepared to agree in general terms with a post hearing submission from counsel for Kaluthanthrige that the situation in Sri Lanka could be described as fluid and unstable and that there remained a considerable degree of political violence and some human rights abuses. This did not show that Kaluthanthrige faced a real chance of persecution for a Convention reason. The Tribunal found that he did not face a real chance of persecution for any Convention reason in Sri Lanka at the present time or in the foreseeable future. He therefore did not have a well founded fear of persecution and was not a Convention refugee.
THE APPLICATION FOR REVIEW
The grounds of the application for review, after reciting the essentials of Kaluthanthrige’s personal history, are set out in narrow compass as follows:
“7.The Tribunal erred by making unreasonable finding of the Applicant’s family political opnion (sic) who were politically committed activists, and also in application of the correct test whether there was a ‘real chance’ which involved the evaluation of the possibilities, and speculation about the future having regard to past events, which was not consistent with the reasons for judgment of Beaumont, Einfeld and Foster JJ in Guo Wei Rong v Minister for Immigration and Ethnic Affairs and Another (135ALR421).
8.The Tribunal therefore should have determined that the Applicant’s family past adverse treatment had been persecution for Convention reasons, and that on the balance of probabilities the Applicant’s fear of persecution on Convention grounds was well-founded.”
THE CONTENTIONS
It was submitted for Kaluthanthrige that the Tribunal’s decision involved an error of law. Reference was made to the findings that his brother had been murdered by reason of his political views, that his family home had been visited by security forces and that those who murdered his brother were either JVP operatives or government forces, although more likely they were government forces. The Tribunal’s finding that the men had the whole family in their power at the time yet chose only to harm the brother, was said to have been based on an erroneous view that only actual physical harm constitutes persecution. It failed to take into account that the murder of one member of a group may intimidate other members of a group particularly where the murder is of a close family member. It ignored the fact that the entire family was held by armed men. It ignored the fact that the effect of the brother’s murder was to silence the family and that afterwards the family burnt its political books. More generally the Tribunal was criticised for approaching Kaluthanthrige’s case on the basis that the only express political conduct established was that of his brother Mervyn for which he was murdered and that the fact of Kaluthanthrige’s survival was itself evidence that he did not face a real fear of persecution for political opinion.
The Tribunal’s finding that Kaluthanthrige had expressly disclaimed membership of or activities with the JVP and that it was difficult to see why government forces would have any reason to persecute him, was said to be in error. His brother was not a member of the JVP nor involved in activities of the JVP and yet was murdered. Further, Kaluthanthrige’s imputed views might form a basis for persecution. The Tribunal should have found that he had a well founded fear of persecution within the meaning of the Convention.
It was further submitted that the Tribunal should have found that even if Kaluthanthrige’s political opinions were not clearly defined or so clearly defined as to throw up an identifiable conflict with the political philosophy of the government, the family’s opposition to the government was sufficient to lead to an inference of a real risk of persecution by reference to his anti-government political opinions. The government, it was said, continued to persecute those opposed to it even if specific persecution of the JVP might have been tempered.
The Minister argued that Kaluthanthrige’s submissions amounted to a contention that the Tribunal’s findings were unreasonable and that they invited the Court to substitute its own decision on the merits for that of the Tribunal. Even if the findings were wrong, that could not amount to an error of law involving an incorrect application of the law to the facts.
The Tribunal’s findings that Kaluthanthrige was of no interest to either JVP or government forces and did not face a real chance of persecution was open and was supported by its primary findings of fact with relation to the murder of Kaluthanthrige’s brother, Mervyn, who it found knew certain JVP secrets and must have been more deeply involved than others with the JVP. Other facts relied upon by the Tribunal were also referred to in this aspect of the Minister’s submissions.
The conclusion that Kaluthanthrige did not face a real chance of persecution by government forces was supported by primary facts found namely that Kaluthanthrige’s express disclaimer of membership of or activities with the JVP, his obtaining a passport in his own name through the usual channels without any difficulties and the fact that involvement with the JVP is no longer a matter which leads to a real chance of persecution in Sri Lanka.
The finding that he did not face a real chance of persecution from JVP members was also supported by primary facts relied upon by the Tribunal. In this regard reliance was placed upon his claim that he was not aware of any JVP secrets, that he was a supporter of the JVP, but not an active one and not their enemy and that there was no evidence to suggest he had ever done anything to antagonise them or that they had any adverse interest in him.
No basis was disclosed, it was said, for concluding that the Tribunal’s finding was unreasonable or that it involved an incorrect application of the law to the facts.
Further, it was submitted there was no error of law made by the Tribunal involving the interpretation of the word “persecution”. This was not a case where the Tribunal found that Kaluthanthrige had faced a real chance of suffering some infringement of his rights which did not amount to persecution. It simply found there was not a real chance of persecution by the government or the JVP.
STATUTORY FRAMEWORK
The grant of visas is authorised by s 29 of the Migration Act 1958, which provides, in part:
"29(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia."
The Act provides for prescribed classes of visa and for the prescription of criteria for visas of specified classes (s 31). Section 36 specifies a class of visa known as "protection visas" in the following terms:
"36(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."
Regulations are authorised to provide that visas or visas of specified classes may only be granted in specified circumstances (s 40). Regulation 2.04 of the Migration Regulations provides that for the purposes of s 40, and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part.
Schedule 2 sets out various sub-classes of visa. Subclass 866 is the Protection (Residence) visa. Clause 866.211 of subclass 866 specifies the following criteria for the grant of such a visa:
"866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
(a) makes specific claims under the Refugees Convention; or
(b) claims to be a member of the family unit of a person who:
(i) has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class AZ) visa."
It is also a criterion that the Minister must be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention (866.221).
The Refugees Convention is the Convention Relating to the Status of Refugees 1954 which is to be read with the Protocol Relating to the Status of Refugees 1973. Article 1 of the Convention, read with the Protocol, defines a refugee as a person who fulfils the following conditions:
"...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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
Section 411 of the Act sets out a class of decisions designated as "RRT-Reviewable Decisions". The class of decisions so designated includes a decision to refuse to grant a protection visa (s 411(1)(c)). An application for review of an RRT-Reviewable Decision is made to the Refugee Review Tribunal (s 412(1)). Where a valid application is made for review of an RRT-Reviewable Decision, the Tribunal is required to review the decision (s 414(1)). The Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act 1958 on the person who made the decision (s 415(1)). the Tribunal is expressly empowered to affirm or vary the decision under review, remit it for reconsideration or set it aside and substitute a new decision (s 415(2)).
Part 8 of the Act provides for the review of decisions by the Federal Court and in s.475 sets out a class of decisions known as "judicially-reviewable decisions". This includes decisions of the Refugee Review Tribunal (s.475(1)(b)).
An application for review by the Federal Court of a judicially-reviewable decision is limited to 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."
THE CONCEPT OF PERSECUTION
The submission made on behalf of Kaluthanthrige seemed to suggest that the Tribunal’s reasoning was informed by an unduly narrow view of what could constitute persecution for the purposes of the Convention. This arose out of the contention that the Tribunal’s findings ignored the effect of the murder of Mervyn Kaluthanthrige on other members of the family.
Persecution in the Convention sense is not limited to physical harm. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, McHugh J, with whom Mason CJ generally agreed, said that persecution involves selective harassment. It does not have to be directed to an individual. The harm which is threatened need not be limited to loss of life or liberty. In Chen Ru Mei v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 at 411, the Court noted that the question whether persecution extends to “measures in disregard of human dignity, the imposition of serious economic disadvantage, denial of access to employment or education, denial of rights enjoyed by compatriots and, perhaps, denial of freedoms fundamental to the existence of a democratic society” is undecided. Reference was made to the decision of the Ninth Circuit Court of Appeals in the United States in Desir v Ilchert 840 F 2d 723 (9th Cir 1988) which said, inter alia, that:
“...persecution involves “the infliction of suffering or harm upon those who differ (in race religion or political opinion) in a way regarded as offensive”: Kovac v INS 407 F 2d 102, 107 (9th Cir 1969). Persecution is found “only when there is a difference between the persecutor’s views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate”: Hernandez-Ortiz 777 F 2d at 516”
The category of persecution is not closed. It is as wide as the inventiveness of human beings in devising ways to inflict suffering upon their fellows. To limit it to physical injury or loss of freedom would be to provide a very narrow base for the protection of the Convention.
The selective infliction of harm or the threat of harm to a member of a closely knit group such as a family may constitute selective harassment and infliction of at least severe emotional or mental stress upon other members of the family that could constitute persecution of them.
In this case, however, the Tribunal’s reference to harm being inflicted only on Mervyn Kaluthanthrige did not involve a narrow reading of the concept of persecution. The reference was made to support a conclusion that in truth the only target of the men who took him away was Mervyn Kaluthanthrige. There had been no subsequent threat against the applicant or any member of the family. The Tribunal’s reasoning in this respect was part of a factual assessment not informed by any error of law in relation to the concept of persecution.
WELL FOUNDED FEAR OF PERSECUTION
For there to be a well founded fear of persecution there must be a real chance of persecution for a Convention reason if the person claiming refugee status were to be returned to the country of origin - Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra). The “real chance” test does not require the applicant for refugee status to demonstrate that persecution for a Convention reason is more likely than not if he or she is returned to the country of origin. A real chance is made out if there be a risk which is not far fetched, remote or insubstantial - Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 127 ALR 223 at 250-2. As the Full Court said in Chen Ru Mei v Minister for Immigration and Ethnic Affairs (supra) at 410:
“...if it is accepted that an applicant for the determination of refugee status has a genuine fear of being persecuted, the task of the minister, or the tribunal, is not to weigh the prospect of occurrence of the persecution as a matter of likelihood, or probability, but to assess whether the fear of persecution is well-founded in the sense that there is a real chance of the occurrence of persecution, not being a chance that is so remote as to be fanciful or far-fetched.”
Counsel for Kaluthanthrige challenged the Tribunal’s finding that as he had expressly disclaimed any continuing involvement with the JVP it was difficult to see why government forces would have any interest in him. This was said to reflect an error however because it overlooked the fact that Mervyn Kaluthanthrige was not a member of the JVP or involved in its activities.
This however was an aspect of the factual assessment by the Tribunal. Its reasoning at this point was simply rejecting the claim implicit in Kaluthanthrige’s application that government forces would be adversely interested in him because of his imputed political opinions sympathetic to the JVP.
Moreover it was said that the Tribunal should have found that the family’s opposition to the government was sufficient to support an inference of a real risk of prosecution by reference to Kaluthanthrige’s anti-government political opinions.
Again, this aspect of the Tribunal’s reasoning simply reflects its approach to the factual assessment and not any error of law. That it applied the proper test was apparent from its observations at p 16 of its reasons:
“What I am required to examine is the situation facing the applicant upon return and within the foreseeable future thereafter. I do not think mere speculation based solely upon generalized statements about the past is sufficient to enable me to say that it is reasonably foreseeable that the situation could arise where the applicant will face persecution due to past support for the JVP. There is no concrete evidence of any return to these policies or practices.”
The very language of the reasoning used by the Tribunal indicates that it had in mind the appropriate test and the outer limits of the “real chance” necessary to establish a well founded fear of persecution.
The Tribunal expressly referred at p 7 of its reasons to passages from the judgment in Chan which define a “real chance” of persecution as one that is “substantial, not remote” or “not remote, regardless of whether it is less or more than 50%”. There was reference also to the observation of McHugh J at 429 that “A fear of persecution may be well-founded even though there is only a 10% chance of its occurring”.
In my opinion, however, as contended for the Minister, the submissions put for Kaluthanthrige amount to an invitation to the Court to substitute its own decision on the merits for those of the Tribunal. There is no error of law as claimed disclosed by the reasoning of the Tribunal to which reference has been made.
In my opinion no error of law has been disclosed in the reasoning of the Tribunal and the appeal should be dismissed.
I certify that this and the preceding fifteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French
Associate:
Dated: 26 November 1997
Counsel for the Applicant: Mr J. Curthoys Solicitor for the Applicant: Shahid Shakur Counsel for the Respondent: Mr P. Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 May 1997 Date of Judgment: 26 November 1997
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