FEDERAL COURT OF AUSTRALIA Minister for Immigration and Multicultural Affairs v Thulasiraman [2002] FCA 14 MIGRATION – application by Minister for review of decision of Refugee Review Tribunal that applicant met criteria for grant of protection visa – whether Tribunal properly assessed material and reached a positive state of satisfaction as to existence of a well-founded fear of persecution – decision set aside. Migration Act 1958 s 476 Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Minister for Immigration and Multicultural Affairs v Thulasiraman N 1370 of 2001 ALLSOP J SYDNEY 18 JANUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1370 of 2001 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT AND: SASITHERAN ANNAMALAI P THULASIRAMAN RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 18 JANUARY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal (the Tribunal) dated 7 September 2001 be set aside and that the matter be remitted to the Tribunal for reconsideration and determination according to law. 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 1370 of 2001 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT AND: SASITHERAN ANNAMALAI P THULASIRAMAN RESPONDENT JUDGE: ALLSOP J DATE: 18 JANUARY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application by the Minister for review under s 476 of the Migration Act 1958 (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) given on 7 September 2001. 2 The applicant is a male national of Sri Lanka. He arrived in Australia on 22 April 2001. On 23 May 2001 he lodged an application for a protection visa under the Act. On 7 June 2001 a delegate of the Minister refused to grant a protection visa. The delegate's refusal reflected a determination by it that the respondent did not have a real chance of persecution within the meaning of the Refugees Convention 1951 if returned to Sri Lanka and that his fear of persecution on return to that country was consequently not well founded. The delegate therefore was not satisfied that the respondent was a person to whom Australia had protection obligations under the Convention. 3 On 15 June 2001 the applicant applied to the Tribunal for review of the delegate's decision. On 7 September 2001 the Tribunal, expressing satisfaction that the applicant was a person to whom Australia had protection obligations under the Convention and therefore was a person who satisfied the criteria for the grant of a protection visa set out in subs 36(2) of the Act, remitted the matter for reconsideration by the Minister with a direction that the applicant was a person to whom Australia had protection obligations. 4 Before setting out a summary of the respondent's claims and evidence, the Tribunal set out in its reasons what it understood to be the legislative and legal background to the matters before it. Amongst other things it said the following: [A]n applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality. Whenever the protection of the applicant's country is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. 5 The Tribunal then summarised what it understood to be the respondent's claims as well as what it considered relevant country information relating to Sri Lanka. It is not necessary to repeat the Tribunal's summary in this regard. The essence of the applicant's claim is contained in the section of the decision entitled "Findings and Reasons". I set out this section in full. I have provided paragraph numbers for ease of later reference (i) I am satisfied that the Applicant is a Sri Lankan citizen. His father was Tamil and his mother Singhalese. His National Identity Card identifies him as a Tamil from Kandy. (ii) I am satisfied that the Applicant was a supporter of the UNP in the elections in 2000. He acted as a bodyguard for a local UNP candidate. The other bodyguards used by the candidate had been coached or trained in martial arts by the Applicant. The Applicant was a [sic] well known in Kandy as a teacher of martial arts. (iii) I am satisfied that the Applicant became embroiled in electoral violence during the 2000 campaign. He was threatened. He and his friend assaulted the thugs or bodyguards of another political figure. The police took the side of this man because his father is a senior minister. The Applicant and his friend fled and continue to fear harm at the hands of their political opponents or the police. (iv) I note that there is evidence that the 2000 election was violent. There was also evidence that the police took action and arrested the son of a senior minister who had been involved in political violence. (v) I also note that the Applicant came to no harm in the months between the election and his departure for Australia. I am not satisfied that it is likely that the Applicant would be persecuted by the police or his political opponents, or that the Sri Lankan authorities would be unable or unwilling to protect him. Nevertheless, I note that there seems to be a culture of political violence and I am satisfied that there is some risk that this may happen. I am satisfied that the Applicant is at greater risk in Kandy and his decision to leave the city seems justified. (vi) I am satisfied that if the Applicant did suffer any such harm it would be, at least in part, because he is seen as a UNP supporter. That is, for thereasons of his political opinion or a political opinion imputed to him. (vii) I also note that the Applicant fears that if he were to relocate to Colombo he would be risk of arrest and detention as Tamil from outside Colombo. If he is detained he believes that he would be at risk of torture and mistreatment. (viii) I am not satisfied that this is likely. The Applicant is fluent in Singhalese. He is from Kandy not Jaffna, he is not a youth, and he was not harmed in the months leading up to his departure for Australia. Again, I am satisfied that there is however some chance that the Applicant could be detained, arrested, and mistreated. He states that he was able to avoid harm because he was moving about in [a] way which he could not sustain long term. (ix) I am satisfied that any such harm the Applicant faced would be because he is seen as a Tamil and a possible supporter of the LTTE. That is for reasons of his race, nationality, membership of a particular social group or political opinion imputed to him. (x) While I do not consider it likely that the Applicant would suffer persecution from either of the sources he fears, I am not satisfied that the chance that the Applicant would suffer such persecution is so remote as to be fanciful. It follows that I am satisfied that he has a well founded fear of persecution for Convention reasons. [All emphasis added.] 6 The grounds of review set out in the application were as follows: 1. The Tribunal erred in that its decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of law to the facts as found by the Tribunal. Particulars (a) The Tribunal erred in finding a well-founded fear of persecution in circumstances in which it found that it was not likely that the respondent would suffer persecution from the sources he feared, but only a chance that was not so remote as to be fanciful; (b) The Tribunal erred in finding that the respondent was a person to whom Australia had protection obligations in circumstances in which it was not satisfied that the Sri Lankan authorities would be unable or unwilling to protect him and made no finding that it was unreasonable in all the circumstances for the respondent to avail himself of that protection. 7 The decision of the Tribunal was marked by its brevity. No error, of course, arises from that. The issue thrown up for consideration is whether what is disclosed in the reasons displays a full and complete consideration of the elements of the Convention definition of refugee. 8 The Tribunal was satisfied (see paras (vi) and (ix)) that any harm which might be suffered by the respondent was or would be for a Convention reason. The delegate had taken a different view about this. No appeal is brought from this conclusion by the Tribunal. 9 The submission of the Minister, and the argument, tended to treat the question of persecution and state protection separately. To a degree, this tended to blur the analysis. 10 Whilst at all times paying scrupulous regard to what the High Court said in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-72, it is necessary to be clear about the structure and content of what the Tribunal did write. Paragraph (v) dealt in particular, it seems to me, with what happened in Kandy and the risk of persecution by police or the respondent's political opponents and the risk that the authorities would be unable or unwilling to protect him. The Tribunal was satisfied, it seems to me, that there was some risk that he would be persecuted by the police or by his political opponents and that there was some risk that the authorities would be unable or unwilling to protect him if he returned to Sri Lanka, especially to Kandy. This persecution, if it arose, would be, at least in part, for political reasons: para (vi). 11 In para (vii) the Tribunal dealt with the consequences of relocation to Colombo (to avoid, one assumes, the earlier mentioned possible politically motivated (in part) violence). The fear dealt with here (para (vii)) is of arrest and detention as a Tamil from outside Colombo. The fear entertained in any such arrest and detention was of torture and mistreatment. This fear must have related to the police and/or army, being the state agencies responsible for arrest and detention. It is not a fear of violence only for political reasons, rather for reasons of race, nationality, membership of a particular social group, as well as imputed political opinion: para (ix). Some assessment of this fear is made in para (viii). The Tribunal was not satisfied that it was likely, but was satisfied that there was some chance that the respondent would be detained, arrested and mistreated. 12 No mention is made in para (viii) of "torture" in the findings in the fourth sentence, but I take the noun "mistreatment" here to cover it, given the contents of para (vii). 13 Thus, at this point, down to, but not including para (x), the Tribunal had only found "some risk" (para (v)) and "some chance" (para (viii)) of conduct amounting to persecution for Convention reasons. If this is how the reasons rested, Mr Bromwich's argument that the relevant question had not been broached would be clear and overwhelming. "Some" chance might be 'real', 'fanciful', 'speculative', 'unlikely in the extreme', 'ludicrous' or 'material'. Any number of qualifying terms to elucidate the nature or quantum of the risk or chance might be given as encompassed by the word "some". The lack of any attention to the objective nature of the risk or chance of persecution would betray a failure to deal with the relevant question – whether the subjectively entertained fear was "well-founded" for para 1A(2) of the Convention. 14 However, the reasons included para (x). The first sentence makes it clear, I think, that the Tribunal was referring to the persecution in para (v) and paras (vii) and (viii) as "either of the two sources". Alternatively, the reference is to the risk of violence from political opponents (para (v)) and the risk of persecution or mistreatment or torture by police (and perhaps the army) (paras (v) and (viii)). Whichever be the correct reading of this part of the reasons, in respect of both, the Tribunal was not satisfied that the chance of the respondent suffering such persecution was so remote as to be fanciful. So, the Tribunal said that it was satisfied that he had a well-founded fear of persecution. 15 I will come to state protection in a moment. It is clear that the Tribunal was using the "real chance" test referred to by McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429. However, as the High Court said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, to use the "real chance" test as a substitute for the Convention term "well-founded fear" is to invite error. A fear is well-founded when there is a "real substantial basis for it": Guo, supra, at 572. No fear of persecution can be well-founded unless the evidence indicates a real ground for believing that the person is at risk of persecution: ibid. 16 Here, it seems to me that a formulaic and flawed approach has been adopted by the Tribunal and that the Tribunal has not grappled with the need to reach a state of satisfaction about whether the risk is real from available evidence. First, the Tribunal stated that it was not satisfied that the risk of harm was likely. Next, it was satisfied that some risk of harm was present. That risk, "some" risk, covered the totality of risk from infinitesimal to just short of likely. Next, it was not satisfied that such risk was so remote as to be fanciful. Next, it thereby concluded that the fear was well-founded. However, not to be satisfied that the risk was so remote as to be fanciful does not mean that on the evidence the Tribunal was satisfied that there was a real ground for, or that there was a real substantial basis for, the fear of persecution. The essaying of the task of assessing the evidence as to whether it is sufficient to bring the Tribunal to a positive state of satisfaction about such a degree of risk is not completed (though it may be part of the task) by stating a lack of satisfaction that the risk is so remote as to be fanciful. Nor does a lack of satisfaction on the available material that the risk of persecution is so remote as to be fanciful logically lead to the bringing about of a state of satisfaction of the kind referred to in Guo. It is a state of satisfaction which is to be reached assessing the evidence directed by that question. 17 The last sentence of para (x) indicates to me that the Tribunal approached the task formulaically using the integers "real" (A) and "so remote as not to be fanciful" (B) as covering the totality of the universe of "some chance" (A + B). In finding a lack of satisfaction of B, a positive state of satisfaction about A was assumed in the conclusion of well-founded fear, without any expressed assessment of the material to justify that conclusion. Rather, the conclusion was said, in effect, to flow from the lack of satisfaction that the risk was remote. 18 The necessity for the Tribunal to deal with what it is satisfied of is highlighted by the second ground of the application. The question of state protection is not mentioned in para (viii). That may be because that paragraph is dealing with the risk of activities by state agencies. However, until one knows what the Tribunal is satisfied of concerning the risk of harm it is difficult to know what has been dealt with. This highlights, it seems to me, the flaw in the approach of the Tribunal in concluding, from a lack of satisfaction about the remoteness of the risk, something positive about the reality of the risk, without basing any such conclusion on a positive state of satisfaction from the material before it. 19 For the above reasons the Tribunal failed to complete its task mandated by the Act and the Convention and so made orders without jurisdiction or authorisation for the purposes of paras 476(1)(b) and (c). The decision of the Tribunal should therefore be set aside. 20 Written submissions were filed concerning the form of the order should I be minded to set aside the decision. Some discussion took place as to whether I should remit it to the decision-maker who has previously dealt with the matter. I do not think it necessary to enter a discussion about the limits of para 481(1)(b). It is sufficient if I indicate that there is nothing in the way the Tribunal member has dealt with the matter that would, in my view, make it inappropriate for that person to reconsider the matter in the light of my reasons. It may well be that that is seen to be a sensible course. The matter is not one in which I think it necessary to make an order under para 481(1)(b). 21 I do not propose to order costs against the respondent in circumstances where the error in no way finds its source in his conduct. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 18 January 2002 Counsel for the Applicant: Mr R Bromwich Solicitor for the Applicant: Australian Government Solicitor, Sydney Counsel for the Respondent: Mr L Karp Solicitor for the Respondent: David Cohen & Co, Sydney Date of Hearing: 4 December 2001, last submissions received 7 December 2001 Date of Judgment: 18 January 2002