SZATE v Minister for Immigration

[2004] FMCA 532

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATE v MINISTER FOR IMMIGRATION [2004] FMCA 532

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misunderstood or overlooked aspects of applicant’s claim or requisite Refugees Convention nexus in relation to harm feared – whether Tribunal failed to consider particular social group – whether Tribunal failed to consider dual motives – whether Tribunal should ask ‘what if I am wrong?’ in relation to the future.

Craigv South Australia (1995) 184 ALR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678

Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 166 ALR 641
Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73

SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] FCA 26
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: SZATE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1050 of 2003

Delivered on: 15 October 2004

Delivered at: Sydney

Hearing date: 25 June 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Mr B. Zipser

Counsel for the Respondent: Mr R. Bromwich

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1050 of 2003

SZATE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 28 May 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion.  She first visited Australia between

   
   

   18 February 2001 and 16 May 2001.  She returned to Sri Lanka and came to Australia for a second time on 25 March 2002.  On 14 June 2002 she applied for a protection visa.  On 18 October 2002 a delegate of the respondent refused to grant a protection visa and on 15 October 2002 the applicant applied to the Tribunal for review of the decision.  Her immigration consultant provided written submissions dated

   
   

   22 April 2003.  The applicant attended a Tribunal hearing on 5 May 2003. 

2. The applicant claimed to fear persecution in Sri Lanka from Liberation Tigers of Tamil Eelam (LTTE) militants, the police, the army, the Eelam Peoples Democratic Party (EPDP) and landowners, whom she claimed to have harassed and persecuted her. 

3. The applicant claimed, and the Tribunal accepted, that her son was coerced by the LTTE into assisting with the erecting of bunkers in the Jafna area of Sri Lanka prior to 1990, that she bribed the LTTE to release him so that he could have medical treatment in Colombo and that she provided a guarantee or personal surety in relation to his return but he did not return.  After moving to Colombo in 1990 without the knowledge of the LTTE she then encountered a range of difficulties with landlords and houseowners (such as not being allowed to have visitors).  The Tribunal accepted that this amounted to some low-level harassment and that the applicant moved frequently because of it.  The applicant also claimed that on different occasions her son and daughter were each questioned by the police at length about possible LTTE connections.  The Tribunal had regard to the fact that the applicant did not claim that she was ever questioned or that she had personally had any difficulties with the police other than the nuisance of house searches at very odd times.  Nor were her children detained overnight, arrested or imprisoned, tortured, harmed or mistreated during their questioning.  The Tribunal found that, based on the claims and the then security situation in Sri Lanka, it was not able to satisfy itself that the actions of the security forces in relation to her family were unreasonable in the circumstances.

4. The applicant also claimed that a person with whom she shared lodgings in 1999 was tortured by the police, as were three of her son’s friends, on suspicion they were LTTE supporters or associated with LTTE.  The Tribunal accepted that this person was interrogated and apparently tortured in 1999 and that the applicant’s son left Sri Lanka for the UK in the same year, but found that if these incidents caused the applicant to have a well-founded fear of serious harm for a Convention reason then she would have applied for a protection visa when she visited Australia in February 2001 and would not have voluntarily returned to Sri Lanka.  Indeed the Tribunal found that, as it put to the applicant at the hearing, if she had a well-founded fear of harm amounting to persecution for any reason before or during her visit to Australia from February to May 2001 she would have applied for a protection visa in that period.  It accepted that she did not do so and was not able to satisfy itself that at the time of her return to Sri Lanka on 16 May 2001 the applicant had a well-founded fear of persecution. 

5. The Tribunal then dealt with the applicant’s claims as to what allegedly occurred to her after her return to Sri Lanka in May 2001.  She claimed that one day, while out walking, she was approached by a person who said that he knew her and that she had paid money while in Jafna and had come to Colombo without permission and that she must come to Vanni.  Apart from this conversation nothing happened and she never saw him again.  She also claimed that in October 2001 she was approached by another person while out walking, that quite possibly this person was from the EPDP and that he told her that he knew she had paid money to the LTTE and said that she had to pay him also or he would tell the police.  She claimed that she gave this later person her address and that he visited her and asked for 25,000 rupees.  She twice paid him 10,000 rupees and he did not visit her again before her departure for Australia on 24 March 2002.  The Tribunal found it significant that on both occasions the applicant was not initially approached at her residential address but rather while walking in the street, indicating that the people who approached her may have done so on a random basis and most likely did not know where she lived (this certainly being the case in October 2001 as she was asked to provide her address).  This was said to raise questions about the objectives of the approaches and how much the persons actually knew about the applicant and her background.  In any event the Tribunal accepted in relation to the first approach that nothing actually happened and that, as to the second approach, the person whose identity was not known had seemed placated with the payments and did not return. 

6. The applicant also claimed that if she returned to Sri Lanka she would have more problems than before and that it would be easy for political movements to approach and mistreat her as they always needed to raise money.  The Tribunal accepted that she had been the subject of extortion and paid one person 20,000 rupees but was not satisfied that this extortion was for a Convention-related reason.  It had regard to the fact that the applicant did not claim that she was an LTTE fighter or supporter or that she had had any involvement with them other than bribing the area commander in 1990 and providing a guarantee in relation to her son.  It was not satisfied that the applicant, as a 59 year old Tamil female, would be of any interest to the Sri Lankan authorities for this or any other reason even if these ‘activities’ were reported to the police.  The Convention basis for the claimed extortion (imputed political opinion in financially or otherwise supporting the LTTE) was found to be ‘missing’.  Further, the Tribunal found that if the applicant had a well-founded fear of persecution on this basis she would have applied for a protection visa shortly after arriving in Australia for the second time and would not have waited nearly three months before doing so.  The Tribunal was not able to satisfy itself that the essential and significant reason for any attempt to extort money from the applicant was Convention related (as opposed to a criminal intent).  In this respect the Tribunal accepted the applicant’s claim that people would demand extortion money from a person known to have children living abroad.  The Tribunal did not accept that the applicant was blackmailed by the EPDP or LTTE because of her imputed prior association with the LTTE and was not able to satisfy itself that, based on these experiences, there was a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if she returned to Sri Lanka, either now or in the foreseeable future. 

7. The Tribunal referred to independent information in relation to peace talks in Sri Lanka which it stated had been put to the applicant during the hearing.  It accepted that relative peace and stability had been achieved and that although there were occasional incidents and clashes there were real signs of both sides being committed to the peace process and accepting the need for patience.  The Tribunal found that the situation in Sri Lanka had improved so that many people affected by the previous fighting now felt they could return to Sri Lanka in safety.  In view of the continuing (albeit slow) progress being made to achieve a lasting resolution of the conflict, the Tribunal was not able to satisfy itself that a 59 year old female Tamil (even if LTTE sympathies were imputed) faced a real chance that she would be at risk of serious harm amounting to persecution for a Convention reason.

8. Finally the Tribunal considered the applicant’s claim that there was no-one to help her and she would be all alone.  It accepted that while her children were now all living overseas they had in the past assisted her financially and she still had a brother living in Sri Lanka.  Having considered all of her claims the Tribunal was not able to satisfy itself that there was a real chance the applicant would experience serious harm amounting to persecution for a Convention reason if she returned to Sri Lanka, either now or in the foreseeable future, and found she was not a refugee.

9. The applicant filed an application in this Court on 12 June 2003 which contained no grounds or particulars.  Written submissions were filed by counsel for the applicant on 22 June 2004 which foreshadowed an amended application on specified grounds.  It was contended that the Tribunal fell into jurisdictional error in dealing with three aspects of the applicant’s claims described by her counsel as ‘the breach of guarantee issue’, ‘the EPDP issue’ and ‘the peace talks issue’.

The breach of guarantee issue

1. The first ground relates to the applicant’s claim that in 1990 she gave a guarantee to the LTTE in relation to her son, that she breached the guarantee and that in June 2001 an LTTE member came to her in Colombo, recognised her, noted that she had come to Colombo without permission and said she must come to Vanni.  The applicant had claimed generally that she was worried about the future and that she could not live in Jafna as she had breached the LTTE condition and was subject to serious punishment and extortion and even feared the LTTE in Colombo and claimed they might kill her.  It was contended that the Tribunal had misunderstood the applicant’s claim, in that the applicant had said not only that she feared extortion (which was dealt with by the Tribunal), but also that she feared ‘serious punishment’ and being killed and that the Tribunal did not deal with these additional fears.  It was contended that in failing to deal with the applicant’s claims about being punished and killed because she had breached a personal guarantee given to the LTTE, the Tribunal fell into jurisdictional error.

2. A failure to take into account relevant considerations in the sense considered in Craigv South Australia (1995) 184 ALR 163 and MIMA v Yusuf (2001) 180 ALR 1 will constitute a jurisdictional error. However in this case I am not satisfied that the Tribunal failed to take into account relevant considerations or to address the integers of the applicant’s claims, in particular her claims to fear more than just extortion from the LTTE. First it is clear, reading the Tribunal reasons as a whole, that the Tribunal was aware of the scope of the claims being made by the applicant. In several references it made it clear that it was aware that the applicant was claiming a fear of more than just extortion from the LTTE. It set out her claim to fear serious punishment and that the LTTE might kill her if she breached the LTTE conditions. It described the claimed extortion threats that she experienced in Sri Lanka after her first visit to Australia in 2001. In the findings and reasons part of the decision the Tribunal considered each aspect of the claims. The Tribunal found that if the applicant had a well-founded fear of serious harm amounting to persecution for any reason before or during her visit to Australia from 18 February to 16 May 2001 then she would have applied for a protection visa in that time. As she did not do so the Tribunal was not satisfied that she had a well-founded fear of persecution at the time of her return to Sri Lanka. In other words the guarantee had been given and breached in 1990 but nothing further had come of it before her first visit to Australia. There was no factual basis for any fears that the applicant claimed to hold prior to her first visit to Australia. As she did not apply for a protection visa on the first visit the Tribunal was not satisfied that she had a well-founded fear of persecution ‘for any reason’ at that time. These findings address any claimed fears as at May 2001.

3. The Tribunal then went on to consider the applicant’s claims that she was twice approached in the street after her return to Sri Lanka.  Nothing came of the approach from the person she understood to be from the LTTE and she had paid some money to someone else who she thought may have been from the EPDP.  In considering these claims the Tribunal not only accepted that in the end nothing actually happened to the applicant after the first incident and that the second person appeared placated by payment, but also addressed specifically the applicant’s claims that nevertheless she feared that if she returns to Sri Lanka she would have more problems than before and her claim that it would be easy for movements to approach ‘and mistreat her’ as they always needed to raise money.  The Tribunal reference to mistreatment is, in the context of a decision which set out the applicant’s specific claims to fear serious punishment, a recognition of such claims.  The Tribunal not only found that the applicant would not be of interest to the Sri Lankan authorities in relation to any ‘activities’ or for any other reason, it went on to find that if she had a well-founded fear of persecution on this basis she would have applied for a protection visa shortly after arriving in Australia for the second time.  Moreover it did not accept that she was blackmailed or subject to extortion attempts by the EPDP or the LTTE because of her imputed prior association with the LTTE or for any Convention reason and was not able to satisfy itself that based on her experiences there was a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if she returned to Sri Lanka either now or in the foreseeable future.  Nothing further had happened to the applicant after the claimed events.  Her fears were considered by the Tribunal but it was not satisfied that there was a real chance that anything would happen in the future.  In other words the Tribunal was not satisfied that the applicant’s fears of future harm, which it understood extended beyond extortion and were said by her to include a fear of serious punishment or being killed, were well founded.  It did not fail to take into account this aspect of her claims.  The Tribunal rejected the proposition that there was a real chance that the applicant would experience serious harm in the future.  Such conclusion was open to the Tribunal on the material before it.  As in VEAJ v MIMIA [2003] FCA 678 at [26] it is a concomitant of the Tribunal’s conclusion that there was no real chance of serious harm that it must have been of the view that the applicant’s life was not in danger.

4. The applicant contended that the Tribunal had erred in the same manner as was considered by the Full Court of the Federal Court in SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80. It was suggested that, as in that case, what was involved was ‘not simply the Tribunal’s silence as to some of the evidence going to an issue; an issue was itself not addressed’ at 26 per Madgwick and Conti JJ. However in SCAT the Tribunal’s summation of a letter from a third party which contained claims (of the potential for discrimination causing serious psychological harm) additional to those made directly by the applicant, was plainly inadequate and no reference was made in the decision to another letter which raised elements of claims.  The Tribunal in that case failed to consider an aspect of the claims raised by this material that was central to a proper assessment of the applicant’s case.  It was in those circumstances that the Court in SCAT found that the failure to refer to the material was a pointer to the conclusion that the Tribunal must have simply overlooked an aspect of the claim raised by the material to the effect that the applicant and his family were likely to suffer severe psychological harm.  In contrast, in this case the Tribunal properly set out all the aspects of the applicant’s claims.  There are not comparable pointers to the conclusion that the Tribunal overlooked any aspect of the applicant’s claims.  I am not satisfied that the Tribunal has failed to take into account elements of the applicant’s claims as contended.  As Allsop J stated in Paul v MIMA (2001) 113 FCR 396 at [79]:

   “whatever maybe the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction … they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.” 

5. The obligation on the Tribunal to consider all the claims of the applicant and their component integers is to be distinguished from errant fact-finding (see Htun v MIMA [2001] FCA 1802 at [42] per Allsop J). The claims and their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 and MIMA v Yusuf (2001) 180 ALR 1. In this case the Tribunal did consider the claims of the applicant and their component integers. It made findings of fact with which the applicant disagreed but this does not establish a jurisdictional error in the manner contended or in any other way.

The EPDP issue

1. The second claim made by the applicant is that the Tribunal misunderstood the Convention nexus of the extortion she feared.  In oral submissions counsel for the applicant clarified that it was contented that the Tribunal erred in finding that there was no Convention basis for the claimed extortion because, while it might be said that what the EPDP was doing was blackmail, what the LTTE was doing was because the applicant breached a personal surety connected to her son whom the LTTE wanted to work for them because he was a Tamil youth.  It was submitted first that the Convention nexus of the fear of the LTTE would be either that the applicant feared persecution for reason of being a Tamil or because she was a member of a particular social group.  It was contended that because the Tribunal misconceived or misconstrued the applicant’s claims it did not consider that possibility. 

1. The Tribunal considered but was not satisfied that the extortion experienced by the applicant was for a Convention related reason.  It had regard to her limited prior involvement with the LTTE (in relation to the 1990 bribe and guarantee) and the absence of any claim that she was an LTTE fighter or even supporter and was not satisfied that the applicant, as a 59 year old Tamil female (in other words it acknowledged her ethnicity, gender and age) would be of any interest to the authorities ‘for this or any other reason’ even if these activities were reported to the police.  It found that the Convention basis of the claimed extortion (imputed political opinion in financially or otherwise supporting the LTTE) was missing.  It also found that if she had a well-founded fear of persecution on this basis she would have applied for a protection visa shortly after arriving in Australia for the second time and not waited three months before so doing. 

2. As to her fears of the LTTE because she breached the guarantee which she gave in 1990, there is nothing in the material before me to suggest that the applicant claimed to fear persecution as a member of a particular social group or that her claims raised such a ground.  Moreover the Tribunal dealt with all possible Convention-related reasons in its findings that it had not been able to satisfy itself that the essential and significant reason for any attempts to extort money from the applicant was Convention related as opposed to having a criminal intent.  Her suggestion that as she had children living abroad she would be liable to extortion from movements needing to raise money was addressed by this finding.  The basis for the applicant’s claimed fear of the LTTE was her failure to comply with their wishes.  The Tribunal correctly recognised that this had nothing to do with any Convention reason.  The Tribunal also considered the future in its findings that it was not able to satisfy itself, based on the past experiences, that there was a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if she returned to Sri Lanka either now or in the foreseeable future.  The Tribunal did not misstate or fail to deal with the case presented to it.  The applicant’s case was not based on membership of a particular social group in relation to her claimed fear of the LTTE.  This is not a case where the Tribunal can be said to have failed to respond to a substantial, clearly articulated argument relying upon established facts (cf Dranichnikov v MIMA [2003] FCA 26 at [24] per Gummow and Callinan JJ).

3. The second aspect of this contention was that the Tribunal finding that there was no Convention basis for the claimed extortion by the EPDP was wrong because the Tribunal appeared to accept the possibility that there was a risk that the applicant would be blackmailed in the future by the EPDP because of her prior association (albeit limited) with the LTTE.  The Tribunal found that the applicant did not claim she was an LTTE fighter or supporter, that she ever worked for the LTTE or had any involvement with them other than bribing them and providing a guarantee in 1990.  It specifically found that it did not accept that the applicant was blackmailed by the EPDP (or LTTE) because of her imputed prior association with the LTTE, that there was no Convention nexus for the past blackmail and that it was not able to satisfy itself that based on those experiences there was a real chance she would experience serious harm amounting to persecution for a Convention reason if she returned to Sri Lanka.  Even if it were implicit in these findings that the Tribunal accepted the possibility that the applicant could be blackmailed by the EPDP, it is not implicit that the Tribunal accepted that this would be because of her prior association with the LTTE.  On the contrary.  It was not satisfied that any past extortion by the EPDP was because of her imputed prior association with the LTTE.  Hence it did not accept that there was a real chance of extortion for such a reason in the future.  It was not able to satisfy itself that the essential and significant reason for any past attempts to extort money were Convention related as opposed to having a criminal intent. 

4. It is the case that in the written submissions provided to the Tribunal on 22 April 2003 the applicant’s migration agent claimed that the applicant feared persecution by reason of race (as a Tamil) and imputed political opinion.  However the Tribunal dealt with her claims on these bases.  It referred to the applicant’s age and gender in describing her as a 59 year old Tamil female.  It did so in considering whether she would be of interest to the authorities and in finding that if the applicant had a well-founded fear on the basis of the claimed experience (for whatever reason) she would have applied for a protection visa shortly after arriving in Australia the second time. 

5. It was also contended by the applicant that the Tribunal failed to appreciate that extortion can take place for more than one reason and submitted that it is sufficient if one of these reasons is a Convention reason (see MIMA v Sarrazola (1999) 166 ALR 641 at 13 and Rajaratnam v MIMA (2000) 62 ALD 73 at 46-48). However the Tribunal properly considered whether the ‘essential and significant reason’ for any extortion was Convention related as now required by s91R(1)(a) of the Migration Act. The Convention nexus put forward by the applicant was that she would have a political opinion imputed to her in financially or otherwise supporting the LTTE. The Tribunal considered this. The words ‘essential and significant’ recognise that there may be more than one reason but that any Convention reason must reach this threshold. Indeed the Tribunal expressly considered the possibility of there being more than one purpose. There was no error applying the correct test and being unable to be satisfied that it had been met. Moreover in light of s91R, the Tribunal may have fallen into error had it considered dual motives per se without considering whether a Convention reason was the essential and significant reason for the persecution feared. The Tribunal clearly considered both Convention and non-Convention reasons and was not satisfied that any Convention reason met the test.

The Peace Talks issue

1. The applicant contended that the Tribunal erred in finding that in light of the government/LTTE peace talks and the cease fire then in place in Sri Lanka, there was not a real chance that the applicant would be at risk for a Convention reason if she returned to Sri Lanka.  The applicant asserted that the Tribunal had failed to consider the possibility that the peace talks might fail in the future and that this amounted to a jurisdictional error.  It was contended that the Tribunal had an obligation to consider the possibility that the peace talks might fail in the future and that the reasoning in MIMA v Rajalingham (1999) 93 FCR 220 about the circumstances in which a Tribunal must speculate as to whether a past event has occurred should also apply to the Tribunal’s consideration of whether future events might occur.

2. Counsel for the applicant sought to tender two documents in support of this contention.  The first was a DFAT country information report which post-dated the Tribunal decision and the second a separate and unrelated Tribunal decision referring to such country information which also post-dated the Tribunal decision in issue before the Court.  Such documents have no relevance to the Court’s determination of whether the Tribunal made a jurisdictional error in dealing with this application at the time of its decision.  Insofar as the applicant seeks to challenge the Tribunal findings of fact, as indicated above, merits review is not available in the Court.  As the High Court stated in Waterford v Commonweatlh (1987) 163 CLR 54 at [77]-[78] there is no error of law in simply making a wrong finding of fact, therefore an applicant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact. All that these documents could do is demonstrate a set of circumstances which were assessed at a different and later point of time. The applicant contended that it was not sought to challenge a finding of fact. However even if the applicant’s submission is restricted to the contention that the Tribunal was required to speculate about the future and the possibility that the peace talks might fail, the fact that a differently constituted Tribunal engaged in some speculation in a different manner to the Tribunal in the decision in issue before the Court, or that there is country information which post-dates the Tribunal decision in relation to the peace process, is not of assistance in determining whether the Tribunal made a jurisdictional error. Nor are these documents relevant to an argument that any error might have made a difference to the result as contended by the applicant. The fact that there is later information about the peace process and that a differently constituted Tribunal discussed the situation in Sri Lanka in different terms does not assist the Court in determining whether the Tribunal decision before it, arising in a different factual matrix at a different time, involved a jurisdictional error in relation to which a remedy should be granted. Hence it is not necessary to consider the respondent’s technical objections that if the documents were relevant they are not admissible as none of the established exceptions to the hearsay rule have been identified.

3. There are a number of reasons why this ground cannot succeed.  First, the Tribunal did consider the possibility of failure of the peace talks.  It is apparent from the Tribunal reasons for decision that the Tribunal put to the applicant, in the course of the hearing, independent information about the peace talks, the cease fire and the return of persons to their homes in Sri Lanka.  It sets out the applicant’s comments in that respect, in particular her claim that she was not sure that the current peace talks would end successfully and that no-one can predict that the situation will end peacefully.  The Tribunal then stated “against these claims”, that it accepted that there were peace talks in progress which had had their fifth round, had consolidated a February 2002 cease fire and had seen the LTTE drop their demand for independence.  This was regarded as a major concession to achieving a lasting resolution of the conflict.  It went on to refer to other independent information, which it accepted, and which it had put to the applicant, in relation to the return of people to their homes and ‘that relative’ peace and stability had been achieved.  Moreover, in its satisfaction that, although there were occasional incidents and clashes, there were real signs that both sides were committed to the peace process and accepted the need for patience, the Tribunal recognised what might be described as the uncertainty of the situation.  It was in view of all of this information that the Tribunal found that the situation in Sri Lanka had ‘improved’ so that many thousands of people affected by the previous fighting now felt that they could return in safety.  The Tribunal stated that in view of the continuing ‘albeit slow’ progress being made to achieve a lasting resolution of the conflict, it was not satisfied that there was a real chance that the applicant would be at risk of serious harm amounting to persecution for a Convention reason.  Hence the Tribunal noted the applicant’s claims about the past failure of such talks, carefully considered what the immediate the past history of the current talks had been and weighed its assessment of the situation against the applicant’s assertion that no-one could predict that the talks would end successfully.  It was open to the Tribunal to make this factual assessment and no error is demonstrated in the reasoning approach adopted.  Even if, with the benefit of hindsight, it was subsequently apparent that the peace talks were not the success predicted by the Tribunal, no jurisdictional error is established in the Tribunal approach. 

4. Insofar as the applicant seeks to take issue with the Tribunal’s assessment of the future based on actual subsequent events, such an approach seeks merits review of the Tribunal decision and is impermissible.  The applicant’s reliance on Rajalingam is misplaced.  In that case Sackville J was considering the uncertain past as a part of the process of predicting the future.  It was in that context that his Honour stated at [62]:

   It is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence.  When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question.  Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a real substantial basis for the applicant’s claimed fear of persecution.

5. No other authority was cited in support of the proposition that the Tribunal was obliged to speculate about the future in the manner contended.  In any event the Tribunal did not conclude that the peace talks were an unqualified success but rather that relative peace and stability had been achieved and there were real signs of commitment and continuing albeit slow progress to achieve a lasting resolution.  The reasonable speculation about the future required, and in this case engaged in by the Tribunal, occurred in a quite different context to a consideration of past events where, if the Tribunal is uncertain about whether something has occurred, it may take into account the possibility that the past event did take place in considering the future.  The distinction between an uncertain past and an uncertain future means that the ‘What if I am wrong?’ test is not transposed readily to the context of speculation about future events.  This is apparent from the qualification suggested by Sackville J in Rajalingam at [67] to the effect that if a fair reading of the reasons as a whole shows that the Tribunal had ‘no real doubt’ (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559) that claimed events had not occurred “there is no warrant for holding that it should have considered the possibility that its findings were wrong”. I am not satisfied that the Tribunal was under an obligation to apply the approach in Rajalingam to the future as contended. 

6. Finally, even if the Tribunal had erred in the manner contended by the applicant in considering the issue of the peace talks, this would not have affected the outcome of the decision because of the separate and independent finding by the Tribunal of no well-founded fear of persecution.  The Tribunal had already found that it was not satisfied that there was a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if she returned to Sri Lanka either now or in the foreseeable future.  The peace talks issue arose only as a matter of completeness.  It was not a necessary finding for the ultimate decision to affirm the refusal of a protection visa. 

7. As no jurisdictional error is established the application must be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  15 October 2004.