Selliah v The Minister for Immigration and Multicultural Affairs
[1998] FCA 414
•24 APRIL 1998
FEDERAL COURT OF AUSTRALIA
CITIZENSHIP AND MIGRATION - application for protection visa - whether Tribunal entitled to certain findings of fact - whether Tribunal failed to accord substantial justice - whether “tandem” hearing breached statutory requirements - whether “real chance” test misapplied.
Migration Act 1958 (Cth), ss 420(1), 420(2)(b), 429, 439, 476(1)(a), 476(1)(e),
Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, referred to
Kathiresan v Minister for Immigration and Multicultural Affairs (Gray J, Federal Court of Australia, 4 March 1988, unreported), referred to
Mensah v Minister for Immigration and Ethnic Affairs (Lindgren J, Federal Court of Australia, 31 October 1997, unreported), referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 59, referred to
SEEVARAJAH SELLIAH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 471 of 1997
R D NICHOLSON J
PERTH (HEARD IN MELBOURNE)
24 APRIL 1998
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 471 of 1997
BETWEEN:
SEEVARAJAH SELLIAH
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
R D NICHOLSON
DATE OF ORDER:
24 APRIL 1998
WHERE MADE:
PERTH (HEARD IN MELBOURNE)
THE COURT ORDERS THAT:
The application for review be dismissed.
Costs reserved for submission.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 471 of 1997
BETWEEN:
SEEVARAJAH SELLIAH
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
R D NICHOLSON
DATE:
24 APRIL 1998
PLACE:
PERTH (HEARD IN MELBOURNE)
REASONS FOR JUDGMENT
HIS HONOUR: This is an application for review under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of a Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of the primary decision-maker that the applicant is not a refugee under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”) with the consequence he is not entitled to a protection visa.
Applicant’s circumstances
The applicant is a 35 year old Sri Lankan national. He is of Tamil extraction from Mahiyapiddy in the Jaffna region. He is of the Hindu faith. The applicant’s mother, three brothers and three sisters reside in Sri Lanka.
The applicant arrived in Australia on 30 March 1997 without a visa. That day he was interviewed by an Immigration Inspector at the airport but without the assistance of a Tamil interpreter. That resulted in a written report (“the airport report”).
On 8 April 1997 the applicant applied for a protection visa.
On 4 June 1997 the applicant was interviewed by the respondent’s delegate. On 12 June 1997 that delegate determined the applicant was not a refugee.
On 16 June 1997 the applicant applied to the Tribunal for a review of the delegate’s decision. A hearing took place before the Tribunal on 1 July 1997. On 25 July 1997 the Tribunal affirmed the primary decision made by the delegate.
By application for an order of review dated 14 August 1997, as amended by an Amended Application dated 9 September 1997, the applicant applies to this Court relying on the provisions of the Act.
Legislative framework
The legal framework within this matter arises as stated in submissions is not put in issue.
Section 36 of the Act provides for a class of visa known as a protection visa for persons who seek refugee status.
The Migration Regulations (‘the Regulations’) specify as a criterion for the grant of a protection visa that at the time of determination the Minister is satisfied the applicant is a person to whom Australia has protection obligations as a refugee under the Convention: the Regulations, Sch 2, cl 866.111 and cl 866.221. The definition of refugee in the Convention is contained in Art 1A(2). It requires such person to have a “well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. At the time of decision the Minister must be satisfied the applicant is a person to whom Australia has protection obligations: cl 866.221 of Sch 2 of the Regulations. The applicant must also satisfy certain interest criteria and the grant of the visa must also be in the national interest: cl 866.225 and cl 866.226 of Sch 2 of the Regulations.
Section 475(1)(b) of the Act provides a decision of the Tribunal is a judicially-reviewable decision. Section 476 of the Act provides the grounds upon which an application may be made to this Court to review a judicially-reviewable decision and s 486 vests jurisdiction in respect of such decisions in this Court. Section 485(1) provides the Court has no jurisdiction in respect of such decisions other than as provided for by Pt 8 (ss 474‑486) or s 44 of the Judiciary Act 1903 (Cth): Dai Xing Yao v Minister for Immigration and Ethnic Affairs & Anor (1996) 69 FCR 583 at 588; Minister for Immigration and Ethnic Affairs & Anor v Ozmanian (1996) 71 FCR 1.
Tribunal’s account of evidence
In its reasons the Tribunal said it had available to it the material contained on the Departmental and Tribunal files, including a taped interview between the applicant and a departmental officer as well as country information. The applicant was assisted at the hearing by an interpreter in the Tamil language.
The Tribunal cited the claims appearing from the applicant’s evidence. They were as follows. From 1984 or 1985 he worked on behalf of the Liberation Tigers of Tamil Elam (“LTTE”) after the departure of the Indian Peace-Keeping Force (“IPKF”). That work included building bunkers and shelters, erecting stages for meetings and building other structures. He said this work was known throughout his village.
In 1994 he went to Colombo for a week to obtain a passport. He obtained it in August 1994. He saw no need then to leave Sri Lanka as Jaffna was under LTTE control. He did not know why his passport contained entries attesting to two changes in his occupational role.
In late November 1994 he spent about a week in Colombo. He also went to Colombo for seven to eight days over the Christmas period. He had not experienced any problems there. On one occasion in 1994 he was stopped by the authorities but was left alone after his ID card had been checked.
The applicant said he left Jaffna in 1995 when the Sri Lankan security forces (‘the security forces’) advanced on the area. His brother‑in‑law was killed at that time as a result of a snake bite. He described the loss of family belongings, living in camps and staying in other locations in the period 1995‑1997.
In October 1996 he went to Vavuniya. Over the course of about a week he was beaten at a camp where checks were made concerning him. After paying 10,000 rupees, he secured his liberty. He then went to Colombo where he remained for about one and a half months.
He departed Colombo by air in March 1997 and arrived in Australia via Singapore. He did not know what name was on his boarding pass.
The applicant claimed before the Tribunal that groups supporting the Sri Lankan Government against the LTTE would regard him as a member of the LTTE and would therefore seriously harm him. He said although he may be able to bribe his way through check points between Colombo and the North of the country, it was not possible for him to settle there now as the security forces were in control and his history of political activity would leave him especially vulnerable to harm.
The Tribunal also recorded evidence given to it by a witness from the Australian Council for Tamil Refugees who had left Sri Lanka in 1987 and made a return visit there in September 1995. His evidence was that Jaffna is now under military control and many people including innocent citizens are being harmed. He said it was problematic for Tamils to pass through check points without an ID and Tamils were in constant fear of their well‑being. Only a handful were given permission to pass through the check points to head south.
Tribunal’s reasoning
For ease of subsequent reference the Tribunal’s reasons, which are discursive in character, are broken into numbered paragraphs. This approach is also made desirable by the nature of the submissions made in the case for the applicant. The Tribunal:
noted that, when interviewed at the airport shortly afterward his arrival in Australia, the applicant expressed fear based on his race alone and not due to any political activity.
found the applicant undertook some work under duress for the LTTE from about 1985 until he left his village. However, the Tribunal was not satisfied he worked full‑time for the LTTE or undertook any work which would cause him to be regarded as having LTTE connections beyond those of other villagers.
relied on the airport report to find as a fact he worked as a mason in Colombo for two years prior to his departure for Australia. This was denied by the applicant at the hearing. Due to the accuracy of other facts recorded in the airport report, the Tribunal was not satisfied the alleged discrepancy was due to the absence of an interpreter during the airport interview. It accepted the account in the airport report as accurate.
noted in support of its finding concerning the applicant’s residence in Colombo:
(i)the applicant had been issued with a passport in August 1994 and had given no satisfactory explanation as to why he sought and obtained the passport yet made no use of it.
(ii)entries in December 1994 and April 1995 in the applicant’s passport whereby there were changes recorded in the applicant’s designated occupation during a period he claims he was working full‑time for the LTTE in Jaffna. It found as implausible the applicant’s evidence that he never noticed those entries.
(iii)other discrepancies in the applicant’s evidence concerning the time he spent in Colombo. In his statement of 9 April 1997 he had said he went there for about two weeks in August 1994 and then returned to the Jaffna Peninsula. This was considered to be contrary to his evidence at the hearing that his visits had been in November and Christmas 1994.
The Tribunal therefore concluded it was not satisfied the applicant had spent any substantial periods of time on the Jaffna Peninsula since late 1994 (and had spent at least two years living and working in Colombo).
(5) information that the applicant travelled to Melbourne under a pseudonym on a ticket booked in Dubai and that a visa issued in the name of the person used by the applicant had been cancelled as it had recently been used by another applicant for a protection visa.
(6) found the applicant was able to return to Colombo and had encountered no difficulty there whatsoever. It therefore concluded any fear held by him was not a well‑founded fear of persecution for a Convention reason.
(7) alternatively, found the applicant was also able to go to Jaffna for the following reasons:
(i)the death of his brother-in-law did not occur for a Convention reason and his six siblings continued to live in Jaffna.
(ii)his claim “that he was beaten in a transit camp in Vavuniya in late 1996 is at odds with other evidence that he was living in Colombo at that time; ...”. The Tribunal was not satisfied he “... spent any time in a camp in Vavuniya after 1995.”
(iii)the applicant had been able to obtain a pass to Colombo from the LTTE controlled area and this indicated he was not considered a security risk or suspected of being a member of the LTTE.
(iv)he had obtained a passport in 1994 which he had retained. He had passed all checks for his travel to Australia. Notwithstanding the existence of widespread corruption in Sri Lanka, it was improbable the authorities would permit the applicant to leave Sri Lanka if they had any real interest in him.
(v)although the Tribunal accepted a category of persons who were differentially at risk of persecution is that of “young Tamil males with real connections to the LTTE”, it was not satisfied any activity which the applicant may have undertaken in Jaffna provided him with a profile such as to make him of interest to the authorities. The evidence of the witness from the Australian Council for Tamil Refugees had not satisfied the Tribunal that a person with the profile of the applicant would face a real chance of persecution by reason of his race or political opinion.
The Tribunal therefore concluded the applicant did not have a well‑founded fear of persecution for a Convention reason so that it was not satisfied he was a refugee.
Applicant’s contentions
As to (1):
It is contended for the applicant the airport report does not record information consistent with an interpretation as found by the Tribunal that the applicant’s fear “... was based on his race alone, not due to any particular activity”. In the airport report it was recorded the applicant had left Mahiyapiddy “due to the problems with the army” which was the reason for him leaving Sri Lanka and seeking refugee status. It is submitted this statement shows the applicant’s fear was not so confined. That is not necessarily the case as it was for the Tribunal to find from the evidence before it the significance of their reference to “the problems with the army”: cf Thillainadarajah v The Minister for Immigration and Multicultural Affairs (Heerey J, Federal Court of Australia, 3 December 1997, unreported at 5).
As to (3):
The finding the applicant had spent at least two years living and working in Colombo, which the case for the applicant contends is a crucial finding permeating the whole decision of the Tribunal, was based on acceptance of the airport report. It is submitted it was not before the Tribunal that there had been an earlier version of the airport report to which there had been material amendments made at a time after the receipt by the Department of the application and airport report. Those differences were (1) there was no statement the applicant’s “knowledge of English was good”; (2) the word “Colombo” was misspelt in the second version; (3) it was said the applicant was working “as a building industry” rather than as in the second version, “as a builder”.
For the respondent it is conceded the applicant had limited English only.
The first version was marked “unfinalised” and was unsigned. That caveat had been removed from the airport report before the Tribunal, which was signed by the relevant officer.
It is patent the Tribunal was entitled to rely on the signed airport report.
The finding the applicant had spent at least two years living and working in Colombo is said for him to be an adverse finding with respect to the applicant’s credibility. It is submitted a proper reading of the Tribunal’s reasons shows they are predicated primarily upon a negative view of that credibility.
As that finding was based upon the acceptance by the Tribunal of the airport report it is submitted there were circumstances which justified an investigation by the Tribunal. Matters relied on are the revision of the material parts of that report; the consistency of the applicant’s claims on the substantive matters put forward by him; the availability of an interpreter when the applicant was later interviewed; the status of the airport report; and an explanation given to the Tribunal by the applicant at the hearing he had told the inspector his brother-in-law, with whom he had stayed, worked as a mason in Colombo. In addition to that explanation at the hearing the Tribunal had written submissions strongly pressing his view on that issue. It is submitted the Tribunal’s approach to the assessment of the applicant’s case was effected by its unquestioning reliance upon the airport report, reflecting its credibility findings in relation to the applicant.
It is correct the Tribunal accepted the airport report. It also noted other reasons which led to the conclusion the applicant had been absent from the Jaffna Peninsula for some considerable time. However, it was for the Tribunal to find the facts. What the applicant’s case seeks is for this Court to embark upon impermissible merits review of the Tribunal’s finding on the issue. This is not a case where there was an entire absence of any evidentiary foundation for the Tribunal’s finding and so, arguably, an error of law.
For the applicant it is also submitted the Tribunal’s general approach to the applicant’s case based on its findings of his credibility resulted in it not referring to Departmental cables and other country information referred to in submissions to it. Nor, it is said, did it properly consider the issue of the applicant’s differential risk of persecution as a young Tamil male from Jaffna. Instead, it is submitted, the Tribunal applied a higher test of a sufficiently strong connection to the LTTE such as to produce a profile which would invite adverse attention of the authorities. It is said the Tribunal failed to properly consider the extent of official corruption prevalent in Sri Lanka and, in so doing, having due regard to the content of the submissions before it.
The absence of reference to the specified evidence in the submissions in the reasons of the Tribunal does not mean those matters were not taken into account by the Tribunal. The Tribunal referred to the applicant’s submission in relation to young Tamil males being differentially at risk of persecution. There was also a finding by the Tribunal in relation to the issue of corruption. There is no evidence the Tribunal failed to have regard to the applicant’s submissions. In truth these submissions also invite this Court impermissibly to revisit the merits.
As to (4) (ii):
The alterations disclosed by the applicant’s passport in relation to his occupation were made on 30 December 1994 (to “painter”) and on 10 April 1995 (to “ordinary labourer”). No occupation was recorded in the passport as originally issued. Neither of the two occupations the subject of the alterations were that of the applicant (builder/mason).
The case for the applicant does not make out any reason to why these facts assist his case.
There was evidence before the Tribunal the applicant had paid 20,000 rupees to obtain a passport. There was also evidence of a receipt bearing the date 22 November 1994. This is a date consistent with the applicant’s evidence that he had visited Colombo in that month. It is submitted for the applicant no reference is made to this document in the reasons of the Tribunal.
It is well established law the Tribunal is not required to refer to every item of evidence in its reasons: Minister of Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 594.
As to (5):
During the hearing the Tribunal raised the question of visas being issued in London and then cancelled. The Tribunal member said it was not a matter on which he was going to rely. The complaint in the applicant’s case is the Tribunal did rely on it as a consequence of this reference appearing in its reasons.
However, examination of the transcript makes apparent the matter was both explained to and put to the applicant at the hearing. He had no evidence to give on the issue.
As to (7) (i):
It is submitted for the applicant he did not claim at the hearing his brother-in-law died in circumstances requiring the Tribunal to proceed to expressly find the brother-in-law’s death had not occurred “for a Convention reason.” Furthermore it is submitted no question suggesting any discrepancy in this regard was put to the applicant at the hearing.
The matter was raised in the applicant’s statement and from the commencement he had made disclosure the death had occurred as a result of snake bite.
However, the finding was not one as to inconsistency or discrepancy and it was not therefore adverse in any sense to the applicant. It was for the Tribunal to decide whether a finding was required. It was made in the context of consideration of whether the applicant was able to live in Jaffna and, relevant to that, the evidence of his family residing in that city.
Failure of “substantial justice”
For the applicant it is submitted a fair reading of the reasons and the transcript of the hearing evidences a failure by the Tribunal to act according to the substantial justice and merits of the case: ss 476(1)(a) and 420(2)(b) of the Act and Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. Reference is made to the decision of the Full Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1998) 151 ALR 505 where Wilcox J (with whom Burchett J agreed) declined to accede to the submission advanced on behalf of the present respondent that the court not follow the majority decision in Eshetu. At 548 his Honour said: “... if the Tribunal’s treatment of the issues is so unreasonable that it must be said that the decision could not have been made by a reasonable person, there has not been ‘substantial justice’ ”.
I accept the submission for the respondent that a fair reading of the reasons of the Tribunal in conjunction with all the contentions made for the applicant shows the present case to be far removed from this formulation of Wilcox J. For this purpose I assume it to state the applicable law, special leave to appeal to the High Court now having been given in Eshetu. Nor is the present case one which comes anywhere near falling within the type of arbitrary administrative decision‑making referred to in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 401.
In relation to the applicant’s credibility it is further submitted the Tribunal failed to heed the wise counsel contained in the observations of Foster J in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 191-194 where his Honour said:
“Questions of the applicant’s credibility as a witness are, also, obviously involved in the process. Serious concerns about the creditworthiness of an applicant’s testimony can, of course, be fatal to a favourable finding on the balance of probabilities. However, a finding that he or she has failed to establish fact A on the balance of probabilities because, in all the circumstances, including matters of demeanour, the decision‑maker is not prepared to accept the applicant as a credible witness does not, as a matter of logic, necessarily mean that the possibility of the applicant’s correctly asserting the existence of fact A has been entirely excluded. Mere doubts or concerns as to the applicant’s credibility would not be sufficient to exclude the possibility. For this result, a positive state of disbelief would be required on the part of the decision‑maker.”
It is submitted in all the circumstances of this case it could not be said the Tribunal was seized of the “positive state of disbelief” referred to by his Honour. This it is said amounts to a failure to act according to the substantial merits of the case as required by s 420 of the Act.
In relation to the applicant’s credibility reliance was also placed on the decision in Kathiresan v Minister for Immigration and Multicultural Affairs (Gray J, Federal Court of Australia, 4 March 1998, unreported). That case also concerned an applicant from Sri Lanka claiming to be a refugee as a person of the Tamil race who had been involved in the LTTE. The Tribunal there affirmed a decision not to grant a protection visa to that applicant. The court there followed Eshetu as accepted in Sun Zhan Qui and acted on the view s 420 of the Act prescribes procedures with which the Tribunal is bound to comply and with which failure to comply is a ground of review under s 476(1)(a) of the Act. There the Tribunal had a positive state of disbelief in that applicant’s material claims, being not satisfied he was the person he claimed to be.
His Honour referred to a strong line of authority to the effect the credit of an applicant is very much a matter for the Tribunal: Navaratne v Minister for Immigration and Multicultural Affairs (Tamberlin J, Federal Court of Australia, 1 August 1997, unreported); Thillainadarajah; and Thevanathan v Minister for Immigration and Multicultural Affairs (Sundberg J, Federal Court of Australia, 24 December 1997, unreported). Reference was also made to Emiantor v Minister for Immigration and Multicultural Affairs (Merkel J, Federal Court of Australia, 3 December 1997, unreported) and Kopalapillai v Minister for Immigration and Multicultural Affairs (Merkel J, Federal Court of Australia, 24 December 1997, unreported). His Honour commented in relation to this line of authority that there was a danger in giving too much reign where cross‑cultural communications were involved to “the subtle influence of demeanour”.
In the course of his reasons his Honour addressed the question whether the court could overturn the finding of the Tribunal on credit on the basis the Tribunal had relied in part on two findings not open to it. It described the Tribunal’s reasons in that case as resembling a house of cards - disbelief of one fact being used to disbelieve another, and so on. His Honour was of the view that to make adverse findings as to the credit on the basis of non-existent facts amounts to a failure to act according to substantial justice, within the meaning of s 420(2)(b) of the Act and therefore a failure to observe procedures required to be observed by the Act, within the meaning of s 476(1)(a) of the Act.
In my opinion these submissions do not assist this applicant. The Tribunal had before it the airport report. It had the submissions of the applicant at the hearing that it should not rely on that report. It was entitled to reject those submissions and, having done so, it had evidence upon which it could arrive at its positive state of disbelief of the applicant’s evidence at the hearing.
This is a case where the line of authority that the credit of an applicant is a matter for the Tribunal is applicable. The applicant’s demeanour was not here in issue.
Furthermore there was evidence on which the Tribunal could reach the findings which it did.
If it is the case the airport report wrongly recorded the applicant’s statement, that is not a fact behind which this Court can go, the applicant having fully stated his case in opposition to such a finding to the Tribunal. A wrong finding of fact is not a reviewable error of law where an evidentiary foundation for it exists: cf Mensah v Minister for Immigration and Ethnic Affairs (Lindgren J, Federal Court of Australia, 31 October 1997, unreported).
“Tandem” hearing
The applicant’s hearing before the Tribunal proceeded in the following way. The Tribunal announced it proposed to give him and another applicant (a Mr Kiupatharan) information about how the Tribunal would conduct the proceedings. It would then hear the applicant’s evidence in confidence and then hear the other applicant’s evidence in confidence. Evidence was taken from the Australian Council for Tamil Refugees in the presence of both applicants. It was the case each applicant, by being present together at the commencement and for common evidence, was identified to the other.
Two objections are taken against this for the applicant. The first is the process was not conducive to the fair and just procedure mandated by the Act. Section 420(1) of the Act charges the Tribunal to “... pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. It is accepted the tandem nature of the hearing may have assisted the pursuit of an economical, informal and quick processing of the respective applications. It is said the Tribunal still needed to provide a fair and just mechanism of review. This it is said is reinforced by s 420(2)(b) requiring the Tribunal in reviewing a decision to act according to substantial justice.
These submissions do not identify any specific matter amounting to a breach of s 420. No complaint was made at the hearing or in the subsequent submissions to the Tribunal concerning the manner in which the hearing was conducted. The only “tandem” character of the hearing was in relation to the common witness from the Australian Council for Tamil Refugees and in the use of common country information. In my opinion the contentions do not make out any breach of these sections.
The second way in which it is said the conduct of the hearings in this tandem fashion offended the Act was in relation to the requirements of s 429. That requires the hearing of an application for review by the Tribunal “must be in private”. It is accepted for the applicant the evidence “private” to each applicant was in fact heard in private. It is submitted, nevertheless, the exposure of the applicant’s identity to a person (the other applicant) not subject to the confidentiality provisions of s 439 of the Act contravened the requirement of s 429. Therefore it is submitted the hearing falls for review under s 476(1)(a) of the Act as a failure to observe procedures required by the Act or, alternatively, under s 476(1)(e) as an error involving an incorrect interpretation of the applicable law.
Section 429 is to be understood in the context of subs 431(2) which provides the Tribunal must not publish any statement which may identify an applicant or any relative or other dependant of an applicant. Also subs 439(3) provides a duty of non‑disclosure of confidential information.
Again it is the case there was not truly a “tandem” hearing. The evidence of the applicant was heard in “private”. In my opinion the disclosure of the applicant’s identity to the other applicant cannot properly be said to have breached the requirements of s 429. No complaint was made at the hearing and there is an entire absence of any evidence as to how if at all the privacy of the applicant’s application was violated other than in respect to the disclosure of his identity.
From an examination of the transcript at the portions to which the court was taken I do not accept there was “chopping and changing” involved in the hearing such that the Tribunal could not keep track of what was occurring so there was not a fair opportunity given to the applicant for a proper hearing.
The Tribunal included in its reasons in relation to the applicant a paragraph which appears in precisely the same wording in reasons which it gave in relation to the other applicant, Mr Kirupatharan. It dealt with the witness from the Australian Council of Tamil Refugees.
The evidence of the witness was he had made a business trip to Sri Lanka in September 1994 so his evidence should have been judged as at that date. Furthermore, his evidence was he travelled on an Australian passport. Neither of these matters was said to be taken into account by the Tribunal. In my opinion, it is not shown these matters are material facts or this Court is entitled to interfere on account of them.
Interpretation of “real chance” test
It is contended further for the applicant the Tribunal erred in law within the terms of s 476(1)(e) of the Act in that its approach to the assessment of the applicant’s case was based upon an incorrect interpretation of the test of well-founded fear of persecution. It is said the Tribunal failed to properly speculate as to what might befall the applicant in all the circumstances of his case were he to return to Sri Lanka. In particular it is asserted the Tribunal failed to consider the question “what if I am wrong” in circumstances in which such a query was critical to the proper consideration of his case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 293 per Kirby J; Guo at 579‑580. It is submitted against the back drop of its unrational, unfair and unjust acceptance of the airport report over the claims of the applicant concerning the post 1995 period, the Tribunal not only dwelt unduly upon the past treatment of the applicant but was, in effect, left with nothing upon which to engage in the requisite speculation.
In its reasons the Tribunal spent some time directing itself as to the law concerning a well‑founded fear of persecution as interpreted in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Court should not take the view the Tribunal did not apply the correct test unless this appears clearly from what the Tribunal has written: Wu at 271 (citing the Full Court of the Federal Court). Furthermore, the High Court in Guo made it clear the “what if I am wrong” approach is relevant to facts found on the basis they are slightly more probable than not; is neither rational nor necessary when the Tribunal has no real doubt concerning the correctness of its findings and has a varying applicability being between these two situations: Emiantor; and see Guo at 579-580.
Quite apart from the Tribunal’s reliance on the airport report and its consequent adverse finding of credibility, it turned its mind to alternative evidence supporting a finding the applicant was able to go to Jaffna. It made an express finding of absence of real chance after consideration of the applicant’s profile. There is no basis in fact or law for concluding the Tribunal wrongly interpreted or applied the test of well-founded fear of persecution.
Conclusion
For these reasons I consider the application for review should be dismissed.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON
Associate:
Dated: 24 April 1998
Counsel for the Applicant: R Apputhurai Solicitor for the Applicant: Wisewoulds Counsel for the Respondent: W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 March 1998 Date of Judgment: 24 April 1998
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