FEDERAL COURT OF AUSTRALIA Barrington v Minister for Immigration & Multicultural Affairs [1999] FCA 1667 MIGRATION – whether Tribunal complied with the requirement to make a finding on material facts and give reasons – whether the Tribunal had considered whether the appellant could be imputed with a political opinion – whether certain "treatment" by the police in Sri Lanka constituted persecution – whether the Tribunal misinterpreted the definition of "refugee" – whether there was a real chance that the appellant would be persecuted if he returned to Sri Lanka – whether the Tribunal's focus on past events created an error of failing to focus on what might happen if the appellant returned in the future – whether the Tribunal misapplied the "well-founded" fear test and required proof "beyond reasonable doubt". Migration Act 1958 (Cth) ss 36, 430, 476, 476(1)(a) and 476(1)(e) JOHAN FREDERICK RUDOLPH BARRINGTON v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 319 OF 1999 DRUMMOND, MATHEWS & MANSFIELD JJ 23 NOVEMBER 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 319 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOHAN FREDERICK RUDOLPH BARRINGTON Appellant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: DRUMMOND, MATHEWS & MANSFIELD JJ DATE OF ORDER: 23 NOVEMBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay to the respondent costs of the appeal to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 319 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOHAN FREDERICK RUDOLPH BARRINGTON Appellant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: DRUMMOND, MATHEWS & MANSFIELD JJ DATE: 23 NOVEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT DRUMMOND J: 1 I agree with Mansfield J that the appeal should be dismissed and I also agree with his Honour's reasons for proposing that result. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate: Dated: 3 December 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 319 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOHAN FREDERICK RUDOLPH BARRINGTON Appellant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: DRUMMOND, MATHEWS & MANSFIELD JJ DATE: 23 NOVEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT MATHEWS J: 2 I also agree both with the order proposed by Mansfield J and with his reasons therefor. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews. Associate: Dated: 3 December 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 319 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOHAN FREDERICK RUDOLPH BARRINGTON Appellant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: DRUMMOND, MATHEWS & MANSFIELD JJ DATE: 23 NOVEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT MANSFIELD J: 3 This is an appeal from a decision of Hill J given on 29 March 1999. His Honour dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 24 November 1998. The Tribunal's decision affirmed a decision of a delegate of the respondent given on 28 May 1997 that the appellant, and his family were not entitled to the grant of a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"). Background 4 The appellant was born in Sri Lanka on 24 June 1957. He married on 24 October 1981, and he and his wife have four children now aged fifteen, thirteen, eight and seven. 5 He and his family are Sri Lankan nationals. On 22 December 1996, the appellant and his family arrived in Australia on a visitor's visa, having left Sri Lanka the previous day on a lawfully issued passport. 6 On 17 March 1997, the appellant applied for a protection visa under the Act. It is a criterion for the grant of a protection visa that the appellant be a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The relevant provision of the Convention is Article 1A(2) which defines a refugee as a person who: "… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …" 7 The appellant's wife and children also applied for a protection visa as part of the members of the family unit, but they did not separately claim to be refugees. It is clear that their application for a protection visa stands or falls with the application of the appellant. 8 At the time of his initial application, the appellant provided no information as to the grounds upon which he claimed to be a refugee under the Convention. The application indicated that a statement to explain his claim was to follow shortly. In the absence of any such statement, a delegate of the respondent refused that application, and the appellant sought review by the Tribunal. Ultimately, his claim to refugee status was as explained in a statutory declaration provided to the Tribunal made on 16 October 1998. In addition, he gave oral evidence to the Tribunal, and following the hearing, his migration agent was provided with an opportunity to make a further written submission on his behalf, as was done on 12 November 1998. The appellant's claim 9 There is no dispute that the Tribunal accurately recorded the nature of the appellant's claim in its reasons. The brief outline of that claim which follows is taken from the Tribunal's reasons. 10 The appellant trained and qualified as a motor mechanic, but from 1980 worked generally as a freelance tourist guide until 1985. In 1982, he and his wife converted to Christianity, and became active in the ecumenical pursuits of Christianity. In February 1985, the appellant undertook employment as a studio manager for a radio broadcasting program run by a group called "Back to the Bible", promoting awareness of, and interest in, Christianity in Sri Lanka. His work included administrative work, correspondence with those who responded to programs broadcast by the radio station, and more general supervision and organisation of periodic rallies of Christians in various parts of Sri Lanka. 11 He said, and the Tribunal accepted, that there was an official policy of discouraging Christian religious broadcasting in Sri Lanka as a result of which the studio where he was working was raided from time to time and he was questioned by police. In particular, the Tribunal accepted that in March 1988, a raid occurred following the broadcast in Sri Lanka of a program pointing out the disadvantages of the Christian minority group in the north of Sri Lanka. As it happened, he said, that broadcast was broadcast from the Philippines. He was nevertheless interrogated for some time as to its source and content. The Tribunal also accepted that, in March 1989, he again was interrogated at the premises of his employer for some considerable period of time, particularly in relation to the activities and whereabouts of members of the Tamil community including certain staff of his employer. He said that, following that occasion, as he felt threatened by it, he assumed a less prominent public role in the activities of his employer. In 1991, he changed his employment activities to an employer entitled "Living Bibles", in which he was involved in promoting the distribution of the Bible throughout much of Sri Lanka. Again, he complained of harassment of those engaged in those activities. In 1995, whilst in that employment, a raid took place at the premises of his employer and the appellant was interrogated for some time, following the expulsion of a foreign visiting missionary with whom Living Bibles was associated and who had produced a poster indicating the view that the Sri Lankan government policy in relation to its military troops in the north of Sri Lanka was inappropriate. 12 In November 1996, the appellant was questioned by police in his office as to the whereabouts of a suspected LTTE supporter. In the course of his work, he said a number of persons previously associated with the LTTE and who wished to leave or cease involvement with it had made contact with his organisation for support, and that his organisation, including himself, provided that support. The appellant refused to give police the information they sought as to the whereabouts of that person. He said that the police officers then interviewing him accused him of supporting the LTTE. 13 His claim was that, following that occasion, he became concerned that he may be arrested and severely mistreated, and his family put at risk, because he was perceived by the authorities as sympathetic to and supportive of the activities of the LTTE. The Tribunal's reasons 14 The Tribunal, after reviewing the background to the claim, the legislative framework, and the evidence before it, turned to its findings and reasons for its decision. It accepted the applicant was a truthful witness generally, including in particular in relation to the four occasions upon which the premises of his employer had been raided and he had been questioned. Although it had reservations about the genuineness of his fear of persecution should he return to Sri Lanka with his family, it was prepared to assume that he did have such a fear of persecution. 15 The Tribunal also accepted that through his work with Living Bibles, the applicant came into contact with former members of the LTTE and of the Singhalese insurgent movement. In relation to the November 1996 incident, it found: "I accept that in November 1996 the Applicant was questioned by two police officers at his office with regard to a person who had left the LTTE and who was seeking the help of the Applicant's organisation. I accept that the Applicant refused to provide the two officers with any information." Earlier in its reason, when noting the appellant's evidence on that topic, it noted that the appellant had also said that the officers had accused him of supporting the LTTE. 16 After observing that the appellant does not claim that he was ever arrested, or taken to a police station or charged with any offence, the Tribunal concluded that there was nothing in the evidence of the appellant, objectively viewed, to suggest that he has ever been considered guilty of any offence by the Sri Lankan authorities. In relation to the November 1996 incident, it recognised that the inquiries were made because the authorities were interested in particular contacts the appellant had had with members of the Tamil community in the context of the continuing conflict in Sri Lanka between the government and the LTTE. The Tribunal said: "As I suggested in the course of the hearing before me, these were legitimate questions for the authorities to be asking in the context of that conflict. The Applicant claims that he was suspected of supporting the LTTE but there is nothing in his treatment by the authorities that would suggest that they imputed him with this political opinion. Had they done so, there is every reason to believe that he would have been treated far more harshly by the authorities than he was. The fact that the Applicant was questioned in his own office, and that it took the authorities four months after he had returned from the USA before they got around to interviewing him, suggests that he was not seriously suspected of any offence or imputed with any political opinion adverse to the government." 17 The Tribunal then added the additional conclusion that it was implausible on the material before it that the authorities would suspect him of supporting the LTTE merely on the basis of his contact with Christian Tamils. 18 Consequently, the Tribunal concluded that there was no real chance that the appellant would be persecuted if he returns to Sri Lanka now or in the foreseeable future, whether by reason of his religious beliefs or by reason of any political opinion that may be imputed to him arising from his contact with members of the Tamil community through his missionary work. It was not therefore satisfied that the appellant has a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka. The reasons of the trial judge 19 On the hearing of the application for judicial review, Hill J also reviewed the background, the appellant's claims, and the relevant law. The grounds of review specified in the amended application for review dated 15 March 1999 complain firstly of an error of law by a misinterpretation of the definition of "refugee" in the Convention: s 476(1)(e) of the Act, and secondly of a failure to observe procedures required by the Act to be observed in connection with the making of the decision, namely the obligation imposed by s 430 of the Act to give reasons for the decision: s 476(1)(a) of the Act. It was only the latter point which was argued before Hill J. It is convenient to deal with that latter point first. 20 His Honour was confronted with the argument (which he rejected) that the Tribunal had failed to make an express finding as to whether or not the appellant in November 1996 had been accused by the then interrogating officers of supporting the LTTE. It was contended that an acceptance or a rejection of that part of the appellant's claim was critically relevant to the Tribunal's reasons, and that it either failed to accept or reject that evidence, or if it did reject it, it failed to give reasons for so doing. 21 In particular, emphasis was placed upon the observation of the Tribunal (quoted above) that there was nothing in the treatment of the appellant by the authorities that would suggest that they imputed him with the political opinion of the LTTE. 22 Hill J concluded his reasons in relation to that complaint in the following terms: "In my view the reference to "treatment" in the Tribunal's reasons is intended to refer to consequences to Mr Barrington flowing out of the interrogations he had been subjected to, rather than the accusation (and warning) given at the time of interrogation. Fairly read, I do not think it is correct to say that the Tribunal has overlooked or rejected the evidence which Mr Barrington gave. Rather the point that is being made by the Tribunal in the passage objected to is that the authorities in Sri Lanka did nothing to Mr Barrington which suggested that they really believed he supported the LTTE. So read there has been no failure to observe procedures required to be observed. The Tribunal has made findings of fact and given its reasons." 23 I respectfully agree with the reasons for decision of Hill J. As his Honour pointed out, the Tribunal correctly identified the question of whether there was any real chance that the appellant, upon his return to Sri Lanka, would be persecuted by reason of his political or religious beliefs. The Tribunal has recorded the evidence of the appellant accurately, including his evidence as to the threat or accusation that the appellant supported the LTTE. It has not been overlooked. The Tribunal has specifically dealt with that allegation by its observation that there is nothing in his treatment by the authorities that would suggest that they imputed him with this political opinion. In my judgment, Hill J has correctly construed the Tribunal's reasons as indicating that, notwithstanding that allegation, the conduct of the authorities towards the appellant, and other factors, meant that it was not satisfied that there was a real risk of the authorities persecuting him because there was no real prospect that the authorities did regard him as an LTTE sympathiser. 24 The other ground of appeal is discerned only from the notice of appeal itself. It is, in effect, that the Tribunal misinterpreted the definition of refugee, or erred in law in applying that definition. A series of particulars are set out in the notice of appeal but in reality they amount to three general allegations. I will deal with them each in turn. 25 The first is that the Tribunal required the appellant to establish that he was a refugee beyond reasonable doubt. I have carefully perused the reasons for decision of the Tribunal. I do not accept the contention which is contained within those grounds of appeal. It is apparent that the Tribunal has applied the "well-founded" fear test, and has directly addressed the question of whether there is a real chance, as distinct from a far fetched possibility, that upon his return to Sri Lanka, the appellant may be arrested, detained, or otherwise mistreated. I do not consider that the Tribunal's reasons indicate that it has misapplied the proper test for the determination of whether he was a refugee. 26 The second general point discerned from the particulars of the grounds of appeal is that the Tribunal failed to consider whether the appellant would be persecuted if he were to return to Sri Lanka, because its focus was upon what had happened in relation to past events only and not upon what might happen in the future. Again, in my judgment, the Tribunal did not fall into that error. It was appropriate for it to consider past events, and the reasons for past events, in determining whether at the time of the application the appellant faced a real prospect of persecution or a real chance of persecution were he to be returned to Sri Lanka. The Tribunal found that it could not be satisfied on the basis of the evidence that there was a real chance that anything more serious than being questioned in his own office (as occurred on previous occasions) might happen to the appellant if he returned to Sri Lanka now or in the foreseeable future. In my judgment, the Tribunal did not fail to consider what may happen to the appellant were he to return to Sri Lanka. 27 The third general complaint discerned from the particulars of the grounds of appeal is that the Tribunal did not adequately address or consider certain features of the evidence to which reference is made in those particulars. An appeal to this Court is not an appeal on the merits of the decision of the Tribunal. The Court is restricted, in granting judicial review, to the grounds which are specified in s 476 of the Act. The Tribunal has considered the evidence. It has reached its findings of fact in relation to that evidence. I do not think that any error is shown on its part which is reviewable under s 476 of the Act in relation to those more general complaints as to the findings of fact it made. 28 Accordingly, in my judgment, the appeal should be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 3 December 1999 Appellant appears in person Counsel for the Respondent: Mr N Williams and Mr P McGuire Solicitors for the Respondent: Australian Government Solicitors Date of Hearing: 23 November 1999 Date of Judgment: 23 November 1999