SZLWV v Minister for Immigration
[2008] FMCA 1022
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLWV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1022 |
| MIGRATION – Review of decision of RRT – where the Tribunal accepted that the applicant suffered harm in the past – whether Tribunal failed to look at the reasonably foreseeable future in assessing whether the applicant has a real chance of persecution in future – whether Tribunal considered the applicant’s position in relation to a known contingency – whether Tribunal drew its conclusions on the basis of probability rather than possibility. |
| SZGHS v Minister for Immigration [2007] FCA 1572 Hathaway JC, The Law of Refugee Status (Butterworths, 1991) |
| Applicant: | SZLWV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 84 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 7 July 2008 |
| Date of last submission: | 7 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
A writ of certiorari be directed to the second respondent to quash the decision.
A writ of prohibition be directed to the first respondent prohibiting the first respondent from acting upon or giving effect to or proceeding further upon the decision.
A writ of mandamus be directed to the second respondent compelling it to redetermine the application for a protection visa according to law.
First respondent to pay the applicant’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 84 of 2008
| SZLWV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Fiji who arrived in Australia on 30 January 1990 together with her husband. In or about September 1994 the applicant’s spouse applied for a protection visa. The applicant was included in the spouse’s application but she did not make any separate claims. In January 1995 a decision was made to refuse to grant the spouse a protection visa and that decision was affirmed by the Refugee Review Tribunal in October 1995. The applicant’s spouse sought judicial review of the Tribunal’s decision. The various processes through which that application went ended in a dismissal by the High Court in December 2006. On 8 February 2007 the current applicant made her own claim for a protection visa. This claim was refused by a delegate on 26 February 2007. The applicant sought review from the Refugee Review Tribunal which affirmed the delegate’s decision on 2 May 2007. On 22 October 2007 the Federal Magistrates Court set aside that decision and remitted the matter to the Tribunal to be determined according to law. The second Tribunal invited the applicant to a hearing on 5 December 2007 which she attended together with her husband and her migration agent. On 10 December 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 18 December 2007.
The applicant is an ethnic Indian of the Hindu religion born in Suva. Her ground for claiming that she was a person to whom Australia owed protection obligations arose out of her fear of the native Fijian population should she return to her home. The basis of the fear was her own experiences following the 1987 coup when her house was robbed on three occasions and when her husband was assaulted by native Fijians. During that time she was prevented from going to the temple because of the activities of native Fijians, and she was unable to access state protection because the police would not assist her. The applicant also made a claim based upon her membership of the Fijian Labour Party, though her activities in that regard appear to be limited to providing comfort and assistance during election times. The applicant gave evidence about her fears following the 1987 and 2000 coups in Fiji, and the most recent coup in 2006.
The applicant claimed that in considering her application the Tribunal misunderstood and misapplied the “real chance” test in deciding whether she had a well-founded fear of persecution in the reasonably foreseeable future. In order to come to a conclusion as to whether this ground is made out it is necessary to quote from extracts of the Tribunal’s reasons for decision. At [CB135] the Tribunal, having set out the applicant’s history, says:
“The Tribunal noted that the Convention required it to consider whether there was a real chance that the applicant would face persecution in the future. The applicant said that there had been another coup and there is always something going on in Fiji. There is a very uncertain future in Fiji, how things will shape up and what will happen in case they will return. The Tribunal referred to the country information which suggested that the relationship between ethnic communities was much better and that ethnic communities were able to live harmoniously. The information also suggested that the 2006 coup was perceived as being pro-Indo Fijian, rather than against the Indo-Fijian. The applicant said that there has been a recent attempt against the life of the current leader. She provided a copy of a newspaper article to the Tribunal from Sydney Morning Herald dated 6 November 2007 entitled ‘three charged with reason after Fiji raids’. The Tribunal pointed out that the country information suggested that whatever happened to her and her husband in the past was no longer happening in Fiji and, ultimately, the Tribunal must determine if there was a real chance that the applicant will face persecution in Fiji in the foreseeable future.
…
The Tribunal asked the applicant if there were any other reasons why she was fearful of persecution. The applicant said that in the house next door a woman was raped while her husband was tied up and that is why she is fearful of going back to Fiji. The Tribunal noted that the applicant may have a genuine subjective fear of persecution, but it must determine whether the fear is well-founded and the information suggested that whatever has happened in the past may no longer happen and that there is no real chance that she would face persecution. She said that her husband had been beaten up two or three times and that is why she is concerned.
The Tribunal asked the applicant to speak about her involvement with the Labour party. She said that her husband had not been a member of the Labour party but he used to assist the Labour party and whenever there was an election or some activity, he used to assist by bringing people to the activity and they also used to cook meals for them. Because of his support for the Federation party he was once beaten up. The Tribunal asked the applicant if she personally had any involvement with the party. She said that she used to accompany her husband. The Tribunal asked the applicant if she had any fear of persecution because of her involvement with the party. She said that she did not.
…
The Tribunal took evidence from the spouse of the visa applicant … The Tribunal asked the witness what he thought may happen if he and the applicant were to return to Fiji now. He said that they would do the same things as before, he was fearful of going there. He said that he could not go there because of what happened in the past. The Tribunal noted that the political situation had changed since he came to Australia. The Tribunal asked the witness if he thought it would have any effect in the future. He said that he rings his family and they say that the situation is the same, the country still belongs to ethnic Fijians …
The Tribunal noted that it may accept that the applicant had a subjective fear but the issue was whether it was well-founded.
…
[The applicant’s representative said] With respect to objective fear, while the Tribunal suggested that things have changed, one must look at the long term history of Fiji where there has been a long history of coups and the abuse of Indians. While the tribunal may find that everything was fine, there may be another coup. Mr Qarase was supported by extremists and the parliamentarians were making insulting and discriminatory remarks against the Indians while Qarase did nothing. The advisor submitted that the situation did not improve as racism is ingrained in Fiji. The reason Mr Bainimarama staged the coup is because his own life was threatened, he had control of the country and tried to hand over the power to the democratic process but there was an attempt to kill him. He was more concerned with corruption than racism. Since he came to power there is a lot of activity against him. Racism is ingrained in the society and is supported by the Church. What would happen in Bainimarama was to go tomorrow? There has already been a coup against him and there may be other coups against him. If he goes, the Indo-Fijians will suffer. The applicants left Fiji because they suffered under racism and they are scared to go back because there is no one to protect him. In the past, the police and the army took part in racist violence and the applicants are scared that if another coup takes place, they will be persecuted by native Fijians with impunity. The advisor stated that the Tribunal must have regard to the entire history of the racist violence and not some reports. He submitted that racist violence is ingrained and gives rise to objective fear, the applicants are also scared subjectively.” [CB 136]-[137]
The Tribunal then set out some independent country information concerning the situation since the 2006 coup and the attitude of Indian Fijians to the Bainimarama government. The gravamen of that independent country information was that the situation for Indians in Fiji had improved under the current government, probably because policing of inter-ethnic rivalries had been taken out of the hands of the police and placed with the army. The independent country information also made reference to the situation post-2000 and indicated a gradual improvement since the serious inter-ethnic rivalry of that time. In its findings and reasons commencing at [CB141], the Tribunal says:
“The applicant’s claims are based, essentially, on her fear of harm due to her ethnicity (as an Indian), her religion (Hindu) and the applicant also spoke of her political affiliation with the Labour party. The applicant described the events that occurred prior to her travel to Australia, such as harassment by the native Fijians that both she and her husband had suffered, discrimination, inability to worship, physical harm and abuse. The applicant also referred to the unwillingness of the authorities and the police to protect her family. The applicant submitted that these matters gave rise to a fear of persecution. The Tribunal accepts, having regard to the oral evidence and written materials before it, that the applicant suffered such harm as she described. The tribunal also accepts that the applicant was, and remains, fearful of returning to Fiji due to her fear of serious harm. However, the Tribunal also has had regard to the independent country information concerning the current situation in Fiji. The information cited above indicates that race relations are generally ‘harmonious’ and that the 2006 coup has not resulted in the violence and the level of lawlessness that the previous coups had caused. Thus, while the Tribunal accepts that the applicant may have suffered harm in the past in the aftermath of the 1987 coup due to her religion and ethnicity and that the applicant had subjective fear of persecution and that she continues to have such fear at present, the Tribunal is of the view that the current situation in Fiji would prevent the repeat of such conduct in the reasonably foreseeable future.”
The Tribunal rejected the applicant’s argument that it would be erroneous to rely on country information which it gave significant weight to. It then went on to say [CB141]-[142]:
“The Tribunal has also considered the representative’s submission that the situation in Fiji is unstable and that if the Bainimarama regime is toppled, there will be further repressions against the Indo-Fijians due to the inherent racism in that country. The Tribunal has had regard to a newspaper article the applicant provided to the tribunal concerning the arrests in early November 2007 of 16 people charged with treason. The Tribunal does not accept that such evidence establishes a real chance that Bainimarama will be removed or of another coup feared by the applicant. The Tribunal acknowledges the applicant’s fear of these events occurring, but is of the view that the applicant’s evidence constitutes a mere speculation and does not give rise to a real chance. As the Court stated in MIEA v Guo (1997) 191 CLR 559 at 572:
Conjecture or surmise has no part to play to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
(cf MIEA v Wu Shan Liang & Ors (1996) 185 CLR 259 at 293).
The applicant claims that racism is ingrained in the Fijian society. The Tribunal is of the view that this in itself does not give rise to a real chance of persecution. The Tribunal has considered whether there is such a chance having regard to all the circumstances and the Tribunal’s findings are set out above.
Having regard to all the material before it and the independent country information cited above, the Tribunal does not accept that if the applicant were to return to Fiji now or in the reasonably foreseeable future, there is a real chance that she will suffer serious harm, whether in the form of physical or mental abuse, rape, discrimination, threats, harassment, property damage, religious restrictions or any other form of harm, due to the applicant’s race, religion or ethnicity. As noted earlier, the Tribunal accepts that the applicant may remain fearful, but the Tribunal is not satisfied that such fear constitutes a well-founded fear of persecution for a Convention reason.”
The applicant argues that the Tribunal did not really understand the proper test to apply when considering whether or not the applicant’s subjective fear was also objective and well-founded. She argues that the Tribunal mistook the term “reasonably foreseeable future” for “immediate future” and failed to look at the reasonably foreseeable future. In particular, the Tribunal restricted its consideration to the possibility of another coup in Fiji against the Bainimarama government, and neglected to take into consideration the possible situation following the proposed general election in 2009. Its concern was concentrated on the removal of Mr Bainimarama either by a coup or by other means (I infer an assassination not associated with an organised movement for a political change) even though it accepted that there would likely be a general election in 2009. The previous history of Fiji, it is argued, would indicate that the Tribunal should have taken into consideration the possibility of such an election being won by parties that might be significantly influenced by ethnic Fijian anti-Indian sentiments. The applicant also argued that the Tribunal ignored the history of violent anti-Indian coups in the past and that whilst quoting from the relevant authorities it did not undertake the exercise required by them.
As Allsop J recognised in SZGHS v Minister for Immigration [2007] FCA 1572, a decision on these matters is a difficult one. In that case his Honour found that the reasons of the Tribunal (at [2])
“… demonstrate a failure to asses the first appellant’s claims to have a well-founded fear of persecution by reference to his claims, to the possibilities of future persecution, and to the reasonably foreseeable and not merely the immediate future.”
His Honour found that a Tribunal which directs itself in respect of these matters “uncontroversially in its template introduction” (at [3]) does not immunise itself from scrutiny of its reasons. Or:
“… from a conclusion that, notwithstanding assertions in its reasons, its approach demonstrates a failure to employ the correct approach (which it has otherwise correctly stated to bind it).”
At [20] of that decision, his Honour extracted from the Tribunal’s findings a reference to three occasions upon which the applicant was beaten which it considered to be unrelated incidents before saying:
“Even if I were satisfied that these events constituted past persecution of the applicant, I am not satisfied that there is a real chance that the applicant would be subjected to similar or more serious incidents in the future, amounting to persecution. In view of the changed circumstances – there are no elections looming, a pro-Fijian government is in power – there is no evidence to suggest that there is a real chance that serious and systematic violence amounting to persecution would resume, although the possibility of random, isolated racially based incidents occurring cannot be ruled out.”
His Honour’s response to this extract is contained at [21]:
“Whilst it is important to examine the whole of the Tribunal’s reasons and recognising that fact finding is generally for the Tribunal, unless it reveals some vitiating legal error, some things need to be said about the paragraph. One of the three incidents, the serious beating consequent upon his campaigning for the FLP, could not rationally be explained by the identified so-called “changed circumstances”. That there was no election looming is irrelevant and reflects a focus of attention on the near future. The existence of a pro-Fijian government in power was also irrelevant. This was the case when he suffered the first two beatings. One might have thought that a willingness to campaign (as a part Fijian) for the FLP against an encumbent pro-Fijian government may have been behind the beating. Also the state of the existing government again reflects a focus of attention limited to the near future. These are very limited bases for concluding that persecution would not resume. The use by the Tribunal of the word “would” also reflects a possible attention to probability not possibility.”
The applicant in the instant case argues that both of the concerns raised by his Honour in the last sentences extracted are found in the decision of this Tribunal. Firstly, the focus of attention is limited to the near future and not the reasonably foreseeable future. The near future in this case being the period prior to the elections of 2009 whilst Commodore Bainimarama might be susceptible to a coup or “other” removal and a reflection by the use of the word “will” in the sentence:
“The Tribunal does not accept that such evidence establishes a real chance that Bainimarama will be removed” [emphasis added]
of a possible attention to probability, not possibility.
Bennett J considered the authorities on the “real chance” test in SZCOS v Minister for Immigration [2008] FCA 570 at [42]-[44]:
“In Chan, McHugh J explained that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is as small as a 10 per cent chance and even if the evidence does not show that the persecution is more likely than not to occur (at 429). In support of his argument that the Tribunal applied the wrong test (the probability test) to his evidence, the appellant points to the High Court decision in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. In Guo, the High Court emphasised that the “real chance” test is not a substitute for the Convention term “well-founded fear” (at 572). A fear is “well-founded” when there is a real substantial basis for it. It is not well-founded if it is merely assumed or if it is mere speculation (Guo at 572).
In Guo at 573, the High Court also affirmed what was said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281, that an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test.
The evaluation of past events may, as the High Court discussed in Guo at 575-6, provide a reliable basis for determining the probability of their recurrence:
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. ... It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.””
In the instant case, the Tribunal not only accepted the existence of previous coups, but also what had occurred to the applicant during their course. My understanding of Ms McWilliam’s submissions is that she accepted on behalf of the Minister that the Tribunal found these occurrences to have constituted “serious harm” for the purposes of the Act. The independent country information accepted by the Tribunal indicates the existence of anti-Indian sentiments within the ethnic Fijian population and their expression in anti-Indian violence in 1987 and 2000. The Tribunal appears to have accepted the independent country information that such violence was declining post-2000 although it had not disappeared. But given the history accepted by the Tribunal one would have expected there to be a more detailed analysis of the possibility of such matters reoccurring and some consideration of the situation post a 2009 election. I believe that the failure to do this constitutes a misapplication of the test in a similar way to that found by Allsop J in SZGHS. I do not accept the submissions put by the respondent that this is a case where the Tribunal has merely taken into account country information, the choice and assessment of which was a factual matter for the Tribunal: NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]. I fully accept what fell from the Full Bench in that case. The instant matter is not one of the selection by the Tribunal of particular parts of the country information to the exclusion of others. It is, in effect, the failure by the Tribunal to obtain and consider evidence, whether by way of country information or otherwise, in relation to what might occur in the reasonably foreseeable future. I set out below a more detailed consideration of the relevant tests which have guided the view I have come to in this paragraph.
It is not contentious that looking to the future is necessary in determining whether a person has a well-founded fear of persecution. In this regard see Hathaway JC, The Law of Refugee Status (Butterworths, 1991) at p69:
“The use of the term “fear” was intended to emphasize the forward-looking nature of the test …”
However, no mention is made in Hathaway or in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, UNHRC 1979) as to how far into the future the risk can be assessed. The matter is not discussed in Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 (“Chan”), which outlines the “real chance” test, nor in Minister for Immigration v Guo (1997) 144 ALR 567 (“Guo”).
The requirement to consider the reasonably foreseeable future was first discussed by Keely J in Mok Gek Bouy v MILGEA (1993) 47 FCR 1 (“Mok”). In that case the delegate had given evidence that in making his decision he had not considered the situation in Cambodia (the country the applicant would be returned to) two months into the future, although this information was available, because the question of when the applicant was removed was not relevant at all to the decision.
At 66 his Honour outlined how the test should be formulated:
“The delegate considered that a real chance of persecution of the applicant two months after her return to Cambodia “wasn’t relevant”. In my opinion, the question of whether there was a real chance of persecution necessarily required the delegate to look at the future in so far as it was reasonably foreseeable at the time when he was making his decision. On the one hand the delegate was not required to look at the possibility of something occurring in 50 years time … On the other hand a delegate errs in law, in my opinion, if he confines his attention to whether there is a real chance of persecution on the day after an applicant’s return.” [emphasis added]
On appeal Sheppard J (with whom Black CJ and Lockhart J agreed) expressed the view that the proper test was that matters are “to be considered in relation to the immediately foreseeable future”: Minister for Immigration v Mok (1994) 55 FCR 375 at 403. In Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) the court did not disturb the finding of Keely J. Their Honours identified as “the correct test” that enunciated by the Tribunal in Chen Ru Mei v Minister for Immigration (1995) 58 FCR 96, which was:
“Looking at the applicant’s claims overall, I am unable to find that there is a real chance that he would be persecuted for a Convention reason were he to return at this time or within the reasonably foreseeable future.” (CLR 279)
Since then the test has been routinely applied by the Tribunal in its assessment of a “real chance”.
Reasonably foreseeable future
There is little authority on how far into the reasonably foreseeable future the assessment of a known event is to be undertaken by the Tribunal. Generally speaking, in the realm of torts, the oft-cited test articulated by Mason J (with whom Stephen and Aickin JJ agreed on this point) in Wyong Shire Council v Shirt (1980) 29 ALR 217 at 221 (“Shirt”) applies:
“A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.”
Therefore, what is “reasonably foreseeable” is not concerned with the likelihood of an event’s occurrence and distinguishes between that which is likely and that which is foreseeable (see also New South Wales v Fahy [2007] HCA 20 where the High Court concluded that Shirt should not be reconsidered).
Assessing the risk arising out of an incident that it is known as likely to occur in the reasonably foreseeable future
The Tribunal must turn its mind to whether there is a chance of persecution in the reasonably foreseeable future, although the Tribunal’s decisions must not be read with an eye too keenly attuned to error (Wu Shan Liang).
In Mataka v Minister for Immigration [1996] FCA 1503 Lindgren J was required to assess whether the Tribunal in its findings and reasons, by asking the question (in 1995) “whether there’s a real chance that someone who was a strong supporter of the labour party in 1987 is at risk of serious harm in 1995” had erroneously confined its attention to the year 1995. The Tribunal’s reasons were extracted at [34] of his Honour’s judgment:
“The information available about the situation in Fiji indicates that there has been a return of political stability and rule of law in Fiji; and that the army no longer control the country. Law and order is maintained in Fiji by accountable police force and independent judiciary. Members of the opposition parties in Fiji freely oppose Government policies by debating their opposition to such policies in the parliament and the press. Members of the FLP are able to campaign for candidates from their party, in the elections, without reprisal. This information indicates that people in Fiji are not being persecuted for reason of their political opinion of support for the Fiji Labour Party (DFAT Cable SU62724 of 17 March 1994; DFAT Cable 212 of 29 March 1995). The Tribunal therefore finds that there is no real chance that the Applicant will be persecuted for reason of his political opinion if returned to Fiji."
Lindgren J determined that the Tribunal’s reasons for decision showed that it “was clearly aware that it was required to consider the position as at the date of its decision and in at least the immediately foreseeable future” (at [47]).
In Chand v Minister for Immigration [2001] FCA 1285 a known incident, which was to occur in three years, was not considered by the Tribunal to be sufficiently within the realm of the reasonably foreseeable future. The applicant lived on a particular piece of farmland in Fiji (which he had inherited from his mother) the lease of which would expire in three years and would not be renewed, apparently by reason of the applicant’s Indian descent. The applicant asserted that when he lost the land, he would lose his means of livelihood. The Tribunal in its reasons for decision concluded that the termination of a lease in a properly constituted contractual situation could not be considered to fall within the ambit of the Refugees Convention, but that even if the Tribunal were to accept that the non-renewal of the lease would be effected by the Convention reason of ethnicity,
“the political situation at the expiration of the lease, the applicant’s own capacity to change his circumstances with regard to his livelihood even without the lease are questions which are not seen by the Tribunal in the realm of the reasonably foreseeable future.” (Chand at [7]).
Branson J at [11]-[12] opined:
“The Tribunal is to be understood, in my view, as saying that at this distance in time from the proposed failure to renew the lease, it is not satisfied that harm of a sufficiently serious nature will be experienced by the applicant because of the non-renewal; there are too many relevant variables which include the political situation in Fiji and the applicant's own capacity to change his economic circumstances.
In other words, as I understand the Tribunal, it regarded the applicant's application for a protection visa as premature in that it could not be satisfied in April 2001 of the political and economic circumstances which the applicant would face upon the non-renewal of his lease some time in 2004. It seems to me to be impossible to say that it was not open to the Tribunal not to be satisfied in 2001 as to the seriousness of the consequences which the applicant will face in 2004 upon the non-renewal of his lease.” [emphasis added]
And at [14]:
“Moreover, in my view, in the absence of any suggestion by the applicant that he would not be able to leave Fiji at a time nearer to the termination of his lease, it seems to me that the applicant is simply not within the class of persons to whom the Refugees Convention is intended to provide protection. In my view, nothing in the Act or the Migration Regulations 1994(Cth) or in the Refugees Convention itself suggests that a person who is not presently unable or, owing to a fear of persecution, unwilling to avail himself or herself of the protection of his or her country but who might become unable or unwilling to do so in approximately 3 years' time, and who would be free to leave that country at about that time, is presently a refugee.”
While the Tribunal in this instance considered that there were too many variables in place to assess whether certain circumstances would be experienced by the applicant because of non-renewal of the lease, Branson J’s words do not amount to an endorsement that known events three years’ hence ought not to be considered as part of the reasonably foreseeable future. Unlike Chand, in the present matter the effect of the known situation (the looming election in 2009, which was adverted to by the Tribunal) was not assessed at all. Applying Keely J’s test as enunciated in Mok, and Allsop J’s reasoning in SZGHS at [28], these elections were reasonably foreseeable at the time of making the decision. The Tribunal failed to address the applicant’s claims on this basis. In addition Chand was a case where the Tribunal considered the applicant’s position in relation to the known contingency. This did not happen in the instant case.
Tribunal finding that “evidence does not establish a real chance that Bainimarama will be removed or of another coup feared by the applicant” was a conclusion drawn on the basis of probability rather than possibility
This principle was discussed in detail in Minister for Immigration v Rajalingam [1999] FCA 719 (“Rajalingam”) in the reasons of Sackville J (with whom North J agreed), who considered the authorities, including Guo, Chan and Wu Shan Liang, at length. At [62]-[63] his Honour said:
“… 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. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.”
In S v Minister for Immigration (2000) 175 ALR 575 at [27]-[28] Heerey J said, referring to Rajalingam:
“The essence of what the majority said is in my respectful opinion encapsulated in the judgment of the other member of the court (Kenny J) who said (at [140]):
“There is, however, nothing in the judgments of the majority in Guo or Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ; 136 ALR 481 to require the RRT to address the specific question ``What if I am wrong?'’ after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution. Indeed, I doubt that Kirby J intended to be understood as requiring that: see Wu Shan Liang at CLR 293. In deciding whether it has a relevant satisfaction for grant of a protection visa, the tribunal is required to bear in mind the totality of the case. That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant's past may ground a fear of persecution for a Convention reason. In that respect, the tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.”
The foregoing authorities make it clear beyond argument that a decision as to the likelihood of future persecution may, in appropriate circumstances, be based on considerably less than a 51% satisfaction that a particular past event has occurred. So the risk of error is allowed for, and built in to, the approach mandated by the authorities.” [emphasis added]
In the present case, the Tribunal was satisfied that the past events of persecution outlined by the applicant had occurred. Rajalingam has also been applied in these situations.
In SBBC v Minister for Immigration [2006] FCA 925, the Tribunal accepted that the applicant had previously been persecuted but concluded that (at [13]):
“Given the ongoing presence and interest of Western powers in Afghanistan and their keen desire to prevent the re-emergence of the Taliban, its chance of becoming a force that is able to take control of the country again, conscript men at will and persecute particular minorities, is remote.
On the basis of the evidence referred to above I find that the Taliban have been removed from power in Afghanistan. I do not accept that there is more than a remote chance of the Taliban re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future.”
The applicant contended that the Tribunal had wrongly imposed too high a test to determine whether the applicant had a well-founded fear of persecution. Mansfield J decided the case on the basis that the Tribunal had fallen into jurisdictional error by failing to address a particular claim of the applicant, but of the above ground his Honour said (at [20]):
“ It is not necessary to address the second of the contentions referred to in [11] above. However, I observe that the independent country information about the activities of the Taliban up to the time of the tribunal’s decision, and its uncontrovertible (and accepted) previous persecutory behaviour in relation to Hazaras, may well make it difficult for the Tribunal to be so confident that the Taliban would pose no threat to the applicant that it properly took into account the chance that the applicant may be at risk in the future from the Taliban, and that the Afghani authorities can provide a reasonably effective and impartial police force to protect him from such threats: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.”
Similarly, in SZGHS the Tribunal had accepted that the three assaults described by the applicant had occurred, but found that there was no evidence to suggest “that the current political situation would give rise to similar activity.” Allsop J at [27] found that the Tribunal drew its conclusions on the basis of probabilities rather than in the manner described in Rajalingam.
SZGHS has also been considered in a recent decision of the Federal Magistrates Court. In SZLNW v Minister for Immigration [2008] FMCA 85 the applicant was a citizen of Lebanon who claimed to be an SLA soldier and was fearful of being persecuted by Hezbollah if he returned. The Tribunal considered extensive country information concerning the history of Lebanon in coming to the conclusion that the applicant had a genuine fear of Hezbollah but that former members of the SLA were not commonly targeted by Hezbollah and that the applicant did not have such a profile that he would be targeted (extracted at [5] of his Honour’s judgment). The applicant argued that nowhere in its findings and reasons did the Tribunal refer to a submission sent to it by the applicant’s representatives which included an extract from Amnesty International’s report which indicated that “the possibility of reprisal attacks in the area cannot be excluded” (at [21]). The applicant argued that, by analogy with SZGHS, the Tribunal did not look at all the material from the perspective of the reasonably foreseeable future and did not address all the claims in that light.
Smith FM did not find this situation to be analogous with SZGHS. His Honour found that the Tribunal summarised the contents of the passage from Amnesty International, and directly addressed whether in the future the applicant would be at risk by reason of having the “profile” which it found to have been held by the persons who were persecuted in 2006. His Honour stated at [24]:
“It was therefore directly addressing the applicant’s claim that he would in the future be at the same risk as the persons who were persecuted in the past.”
On appeal Cowdroy J found no error in his Honour’s approach (see: SZLNW v Minister for Immigration [2008] FCA 910).
In SZLNW, it is clear that the Tribunal directly addressed the applicant’s claim and found that the applicant would not be at risk if there were reprisal attacks. In the present case, however, the Tribunal’s finding was dependent upon its assumption that the removal of Commodore Bainimarama or a coup would not occur. It did not make a finding that the applicant was unlikely to be persecuted if the Bainimarama regime was toppled or if there was a coup. It found that the evidence did not establish that “the Bainimarama regime will be removed”. This is an adoption of a probability test contrary to the authorities.
The misapplication of the “real chance” test and the failure to consider what might happen after an election that the Tribunal accepted would take place constitute jurisdictional errors which vitiate the decision. I will provide the applicant with the constitutional writs sought in her application and order that the first respondent pay the applicant’s costs which I assess in the sum of $5,000.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 25 July 2008
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