Subramaniam Muralidharan v. Minister of Immigration and Ethnic Affairs and Martin Tsamenyi Constituting the Refugee Review Tribunal

SUBRAMANIAM MURALIDHARAN v. MINISTER of IMMIGRATION AND ETHNIC AFFAIRS AND MARTIN TSAMENYI constituting THE REFUGEE REVIEW TRIBUNAL

No. NG 766 of 1995 FED No. 182/96 Immigration Administrative Law

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

DAVIES(1), BEAZLEY(2), SACKVILLE(3) J. J

HRNG

SYDNEY, 27 February 1996

#DATE 22:3:1996

#ADD 28:3:1996

Mr T.A. Game with Mr G. Craddock, instructed by Legal Aid Commission of NSW, appeared for the appellant.

Ms S. Winters, instructed by Australian Government Solicitor, appeared for the respondent.

THE COURT ORDERS THAT:

1.   The appeal be allowed.

2.   The orders of the trial judge be set aside.

3.   The decision of the tribunal be set aside.

4.   The matter be remitted for determination according to law by a differently constituted tribunal.

5.   The first respondent pay the applicant's costs of the appeal and of the proceedings before the trial judge.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE 1 DAVIES J

I have had the opportunity of reading the reasons for judgment of Sackville J. I agree with his Honour that the decision of the Refugee Review Tribunal ("the Tribunal") should be set aside for lack of reasons.

2.   I find it surprising in this case, as I did in Thavarajasingham v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 751, that evidence of detention, killings, torture and disappearances seems to have been brushed aside as if of little consequence. I would have expected the decision of the Tribunal to have commenced with a description of the events occurring in Sri Lanka in the late 1980s, including a description of the rebellion by the Tamil National Army ("TNA"), the abuses of the Liberation Tamil Tigers of Eelam ("LTTE"), the activities including the violence of the Government forces and the outrages committed by the Janatha Vimurthi Peramuna ("JVP"). A claim of refugee status made by a Tamil could scarcely be considered save in the context of those events.

3.   In R v Secretary of State for the Home Department; Ex parte Sivakumaran (1988) AC 958, Lord Keith said at 995:

"It is well known that for a considerable time Sri Lanka, or at least certain parts of that country, have been in a serious state of civil disorder, amounting at times to civil war. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them. These steps, together with the activities of the subversives, have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles. As the troubles have occurred principally in areas inhabited by Tamils, these are the people who have suffered most."

Such a description is useful for it provides the background against which the individual story of the person claiming refugee status can be judged. Once such a description is given, the question to emerge may be, not whether the Tamil applicant for refugee status has a fear which is well-founded, for so many people caught up in these horrifying events surely have had such a fear, but whether the fear is one of being persecuted for a Convention cause.

4.   It will be noted that, while the Tribunal referred to some of the activities of the Government forces and of the JVP and mentioned "gross violations of human rights", including "ruthless army action", no useful description was given of the activities of the TNA or of the LTTE, there being merely the bald statement that "the Tribunal is unable to find any objective reason why the Applicant should be arrested upon his return to Sri Lanka." The Tribunal had regard to Patricia Hyndman's report to the NSW Legal Aid Commission which concentrated upon the JVP insurrection in the south of Sri Lanka, the Government forces' response thereto and the violations which resulted (Hyndman, Sri Lankan Refugee Status Applications, 21 November 1992, p.7); but what the Tribunal failed to do was to describe the like horrors in the north of Sri Lanka, which had occurred and which continued to occur, at least until the peace settlement in the middle of 1995.

5.   There is inevitably hardship to and danger to persons caught up in a civil war or a civil disturbance. Although such hardship and dangers do not, without more, amount to persecution for a Convention reason, one must look at the circumstances. Thus, in his article "Refugees and Civil Wars: Only a Matter of Interpretation?", Vol. 3, No. 3 International Journal of Refugee Law p.435, Walter Kalan stated at 440-441:

"State measures taken against opponents in a situation of civil war do not constitute political persecution as long as they have a typical military character and serve to regain control over areas which, de jure, still belong to the State territory but are, de facto, controlled by insurgents. If, however, government forces fight in a manner aimed at the destruction of persons suspected of being adversaries because of their race, ethnic origin, religion or political opinion but who, in fact, do not participate in military activities, or have given up their resistance, government actions are no longer legitimate and have to be considered as persecution. This is especially true if the actions of government forces turn into purposeful destruction of the ethnic, cultural or religious identity of the insurgent part of the population."

6.   The extent to which the applicant for refugee status is "singled out for persecution" may be relevant. In Australia, one often sees references in refugee decisions which suggest that individual persecution is required. In the present case, Mr P.J. Donnellan, a delegate of the Minister for Immigration, Local Government and Ethnic Affairs, who made the primary decision in relation to Mr Muralidharan, said, in relation to an incident when Mr Muralidharan and others had been detained by the Tamil National Army and subjected to a degree of maltreatment and abuse:

"19. Whilst I acknowledge that this incident may have occurred I must consider that Mr Muralidharan was not targeted by this group but was an unfortunate victim of their activities given that all passengers on the bus who appeared to be in a particular age group were removed and taken to the camp. The fact that he was released, albeit on payment, without apparent conditions is indicative of a low level of continued interest in him as an individual."

7.   It cannot be, however, that the persecution must be directly aimed at the person concerned. It would seem to be sufficient that the person is a member of a race or group at which persecution is targeted and that the person is likely to be caught up therein. In Periannan v Minister for Immigration and Ethnic Affairs (Federal Court unreported, 28 July 1987), Wilcox J discussed this issue in these terms at 13- 14:

"The word 'persecuted' suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances ... (I)t is not essential to the notion of persecution that the persecution be directed against the applicant as an individual. In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of the community may not have a well-founded fear of being persecuted. Questions of degree are involved, both as to the extent of the harassment which exists in a particular case and as to the continuity of that harassment, so as to answer the question whether it amounts to persecution. Conclusions of fact have to be made ..." (emphasis added)

In like vein, Kalin at 443 referred to a decision of the German Federal Administrative Court which, in December 1985, recognised that persecution could be found in the context in which, in the northern parts of Sri Lanka, encroachments by security forces had been aimed at members of the Tamil people and there had been preventive detention of young Tamil men.

8.   Kalin summarised his view on these issues in these terms, at 450:

"How apt is the 1951 Refugee Convention for resolving today's refugee problems? In the case of refugees fleeing situations of civil war, disturbances and general violence the answer is clear. Article 1A, paragraph 2 of the Refugee Convention allows for a liberal interpretation affording protection to many of these persons. This endeavour does not lead, however, to an almost automatic recognition of persons as refugees who flee civil wars and similar situations. Unlike the enlarged refugee definitions of the OAU Refugee Convention and the Cartagena Declaration, the 1951 Refugee Convention requires an individual examination of each case and a showing of well-founded fear of persecution on the part of every applicant." (emphasis added)

I would have expected the Tribunal to undertake such an examination after it had, as the tribunal of fact, found and stated what were the relevant facts.

9.   The Tribunal's reasons for decision scarcely mention the risks which Mr Muralidharan faced by having to travel between Colombo where he lived and worked and Jaffna where his wife and child lived. There was little or no discussion of conditions in the north of Sri Lanka. This may be because Patricia Hyndman's report, to which the Tribunal referred, dealt principally with conditions in the southern part of Sri Lanka. But the matter was clearly raised for the Tribunal's attention. The Tribunal's findings of fact were so brief, at least in relation to the risk of encounters with the Government forces, with the TNA and with the LTTE in the north of the Country, that the Court cannot identify what were the facts which the Tribunal took into account. It follows that the Tribunal failed to do that which s.166E(1) (now s.430) of the Migration Act 1958 (Cth) required of it. Its failure to do so constituted an error of law justifying the setting aside of the decision. See Dornan v Riordan (1990) 24 FCR 564.

10. I agree with the orders proposed by Sackville J.

JUDGE 2 BEAZLEY J

I agree with the reasons for judgment of his Honour Justice Sackville.

JUDGE 3 SACKVILLE J

The appellant is a Tamil, who is a citizen of Sri Lanka. He arrived in Australia, together with his wife and child (then aged 18 months) on 28 December 1989 and lodged an application for refugee status on 18 January 1990. He appeals from orders made by a judge of this Court, dismissing his application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") to review a decision of the second respondent ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent ("the Minister"), that the appellant was not a refugee under the Convention relating to the Status of Refugees, signed at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, signed at New York on 31 January 1967 ("Convention"). The Tribunal filed a submitting appearance in these proceedings.

2.   The appellant's case in this Court was put in various ways. However, as the argument developed, two principal submissions were put on his behalf. These were that the Tribunal had erred: . first, in failing to give adequate reasons, as required by s.166E of the Migration Act 1958 (Cth) ("Migration Act"), as it stood at the relevant time (see now s.430 of the Migration Act, as amended by the Migration Legislation Amendment Act 1994 (Cth)); and . secondly, in failing to give the appellant's case "proper, genuine and realistic consideration upon the merits": Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 (FCA/Sheppard J), at 12-13; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (FCA/Gummow J), at 483.

3.   As I followed the submissions, Mr Game, who appeared with Mr Craddock for the appellant, contended that the first error produced the result that the procedures required by law to be observed in connection with the making of the decision had not been observed: ADJR Act, s.5(1)(b). Mr Game submitted that the second error produced the consequence that the decision was an improper exercise of the power conferred on the Tribunal by the Migration Act 1958 (Cth) ("the Act") as it stood at the relevant time: ADJR Act, s.5(1)(e), 5(2)(j).

4.   Although not raised in his written submissions, the appellant submitted in the course of oral argument that the decision of the Tribunal was erroneous for an additional reason. Mr Game argued that the Tribunal had applied incorrect principles in determining that the appellant did not have a well-founded fear of persecution on a Convention ground. Accordingly, he was not entitled to be regarded as a refugee.

5.   The Tribunal's decision was given on 19 April 1994. The application for review was heard by the trial judge on 12 December 1994 and judgment was delivered on 19 September 1995. No submission was made before his Honour or this Court that the Court's jurisdiction to review the Tribunal's decision under the ADJR Act had been removed by s.485 of the Migration Act 1958 (Cth), which came into force on 1 September 1994: cf Chen Ru Mei v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 (FCA/FC), at 406.

The Statutory Framework 6. Section 22A of the Migration Act provided that, if the Minister was satisfied that a person was a refugee, the Minister could determine in writing that the person was a refugee. The word "refugee" was defined by s.4(1) to have the same meaning as it has in Article 1 of the Convention. Article 1A(2) of the Convention defines "refugee" as follows:

"any 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

7.   Under s.166BB(1) of the Migration Act, the Tribunal was required to review "an RRT-reviewable decision", if a valid application was made seeking review. An "RRT-reviewable decision" included a decision, made before 1 September 1994, that a non-citizen was not a refugee under the Convention: s.166B(1)(a). The Tribunal, for the purposes of review of an RRT-reviewable decision, could exercise all the powers and discretions conferred on the person who made the decision: s.166BC(1). In particular, the Tribunal could affirm or vary the decision or set the decision aside and substitute a new decision: s.166BC(2).

8.   The Tribunal's duty to give reasons was specified in s.166E:

"166E(1)  Where the Tribunal makes its decisions on a review, the Tribunal must prepare a written statement that:

(a).      sets out the decision of the Tribunal on the review; and

(b).      sets out the reasons for the decision; and

(c).       sets out the findings on any material questions of fact; and

(d).      refers to the evidence or any other material on which the findings of fact were based.

(2)   The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.

(3)   Where the Tribunal has prepared the written statement, the Tribunal must:

(a).      return to the Secretary any document that the Secretary has provided in relation to the review; and

(b).      give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based."

The Factual Background

9.   The Tribunal did not make detailed findings of fact. The following brief account is taken largely from the appellant's written statements and other material put forward in support of his case before the Tribunal. It should be noted that the Tribunal did not suggest that the appellant's account of events was not to be believed.

10. The appellant was born in Colombo on 16 December 1959 and was therefore 30 years old when he arrived in Australia. In 1969, his father was allocated a flat in a scheme conducted by the Government of Sri Lanka, under what was described in correspondence as a "hire-purchase" arrangement.

11. In July 1983, the appellant and his family were forced to leave the flat because of riots in Colombo. During these riots Sinhala nationalists vandalised the dwellings of Tamils in Colombo. The appellant and his family were sent to a refugee camp. After leaving the refugee camp the family travelled to the east of the country. On 25 August 1983, the appellant was taken into army custody. Because he was taken for a Tamil militant, he was interrogated and subject to physical abuse for two weeks, until his release on 7 September 1983.

12. Before the race riots, the Government changed its policy in relation to the housing development in which the appellant and his family resided. The change was from the so-called hire purchase arrangement to a normal rent scheme. By way of protest and in the belief that they had paid far more than the value of the properties, the occupants ceased paying instalments or rental to the government authority. In June 1983, the appellant's father sought and was granted an extension of time until 31 August 1983 to pay arrears. On 18 October 1983, the appellant's father offered the arrears to the Commissioner for National Housing, but the offer was refused.

13. In the same month, the family, having returned to Colombo, found themselves locked out of the flat, for what they were told were security reasons. In December 1983, the family was told by the Commissioner for Housing that they could not regain possession of the flat. No reasons were given. On 6 January 1984, the authorities broke into the house and removed the family's belongings. The flat was subsequently given to a Member of Parliament to occupy.

14. At about this time, the appellant was unable to carry out religious observances in accordance with his beliefs. This was largely because priests refused to travel from India to Sri Lanka because of communal disturbances, damage to Hindu shrines and the threat of physical injury or even death.

15. In 1984, the appellant and his father were subjected to threats and abusive language by strangers. In July 1985, both were physically attacked by government supporters. The appellant's father's deteriorating health worsened and he died in October 1985.

16. The appellant married in August 1987. His wife was from Jaffna, in northern Sri Lanka. Because of the lack of adequate accommodation, the appellant worked and lived in Colombo, while his wife remained in Jaffna. The appellant had to travel frequently to see his wife. In July 1988, the appellant's son was born in Colombo, after the appellant and his wife received travel papers from the Indian Peace Keeping Forces then in Sri Lanka.

17. On 5 May 1989, the appellant received a letter urging him to resign from his employment with his employer, an Indian owned firm. The letter was sent by the Janatha Vimurthi Peramuna ("JVP"), a nationalist Sinhala organisation, which was targeting Tamils.

18. In either July or August 1989, the appellant, along with about 20 other Tamil youths, was forcibly detained by the Tamil National Army ("TNA") for a period of about 10 days. He was arrested at Vavuniyn, while travelling to Jaffna, and taken to a training camp in the jungle. During this time attempts were made to coerce the appellant to join the ranks of the TNA, by means including torture. The appellant was released because his brother in law (who provided a statutory declaration in support of the appellant's case) paid a bribe to the TNA.

19. The appellant, his wife and child arrived in Australia on 28 December 1989, on visitors' visas. On 18 January 1990, the appellant applied for refugee status. His application was rejected by the Minister's delegate on 21 April 1992. That decision was subsequently affirmed by the Tribunal. An application for review under the ADJR Act was then filed in this Court and dismissed by the trial judge.

The Tribunal's Reasons

20. The Tribunal referred to the principles stated in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379, and to the views of text writers as to the interpretation of art.1 of the Convention. The Tribunal then proceeded to consider the appellant's claims to refugee status: "The bases of the Applicant's claims to refugee status are fully described in his primary application and the application for review. For the purpose of this decision, these reasons may be summarised as follows:

(1) Before the death of the Applicant's father in 1985, he (the Applicant's father) had a dispute with the Government Housing Department in Colombo in relation to the purchase of a house. The house was re-possessed by the government without compensation before the Applicant's father could discharge the mortgage. The Applicant took over the case when his father died. The Applicant wrote letters to the Prime Minister requesting the return of the house or the payment of compensation. The Applicant alleged that this angered some unknown people in the government. The Applicant received threatening letters asking him to withdraw the case. As a result of this, the Applicant stated that he is afraid of being arrested if he returns to Sri Lanka.

(2) The Applicant, who had lived in Colombo all the time when he was in Sri Lanka, was employed by an Indian company. The Applicant claimed that he received orders from the Janatha Vimurthi Peramuna (JVP) not to work for Indians. The Applicant left Sri Lanka partly because of his fears of the JVP. The JVP (also known as the People's Liberation Front) is a pro-Sinhalese left-wing political movement which was associated with a campaign of violence and brutality between 1988 and 1990 (see Hyndman, Sri Lankan Refugee Status Applications, A report for the NSW Legal Aid Commission, 21 November 1992, p.7). The combined effect of violence perpetrated by the JVP and counter-insurgency measures adopted by the Government between 1987 and 1990, led to gross violations of human rights in the southern regions of Sri Lanka.

(3) The Applicant also claimed that the Tamil National Army (TNA), a clandestine army formed in 1989 with Indian help to combat the Liberation Tigers of Tamil Eelam, wanted to recruit him. The applicant had to pay a bribe of 50000 Rupees to buy his freedom. The applicant is afraid that he would be arrested and forced to join the TNA if he returns to Sri Lanka. The Tribunal has carefully considered the Applicant's reasons for claiming refugee status and comes to the conclusion that the Applicant does not have a well-founded fear of persecution for a Convention reason. The reasons for this conclusion are as follows: The Applicant's claim in relation to the housing dispute is not Convention-related and does not amount to persecution within the Convention. There is no evidence before the Tribunal that the re-possession of the Applicant's family house was motivated by a Convention related reason. The Tribunal cannot find any objective evidence to support the Applicant's fear of arrest in relation to this dispute. The Applicant's fear of the JVP is also not well-founded. The letters the Applicant alleged to have received from the JVP asking him not to work for an Indian company cannot be said to constitute persecution within the Convention. The letter did not curtail the Applicant's fundamental human rights or other basic human rights in any way. In fact, the Applicant continued to work with the same company until his departure to Australian in December 1989. Even if the letter curtailed the Applicant's fundamental human rights or other basic human rights significantly at that time, independent evidence available to the Tribunal indicates strongly that the JVP is not, at present, capable of posing any threats to the Applicant's life or freedom upon his return to Sri Lanka. According to authoritative sources, by the beginning of 1990 the Sri Lankan Government had succeeded in containing the JVP (see eg Hyndman, Sri Lankan Refugee Status Applications, A report for the NSW Legal Aid Commission, 21 November 1992, p.7). The Keesing Record of World Events (Vol 39 1993) reported that the JVP "was effectively wiped out as a serious threat by ruthless army action in southern areas in late 1989 and early 1990". In the opinion of Asia Watch, after 1989, when the JVP leader Rohana Wijeweera and his principal deputy, Upatissa Gamanayake, were killed in custody by security forces, "JVP activity all but ceased" (Asia Watch, 31 May 1992 p6). In May 1993 the Australian High Commission in Colombo, in a Situation Report on the JVP, also noted that "the reality is that there is now very little, if any, likelihood of the JVP ever emerging again. They went too far and frightened too many people this time for there ever to be an accommodation of any kind reached with them again" (DFAT Cable CL35508 of 24 May 1993). The Tribunal is aware of recent reports which suggest that the JVP may be re-emerging. In September 1993, Inform, a non-governmental organisation operating in Colombo, reported a possible clandestine reorganisation of the JVP within Sri Lanka (Inform, "Situation Report", September 1993 p10). There have been other reports of JVP activities on University campuses (Immigration Review Board Documentation Centre (Canada), Response to Information Request LKA/3667, 30 April 1993). These reports do not provide any conclusive evidence of the re-emergence of the JVP as an active political force capable of the atrocities it committed between 1988 and 1989. In relation to the Applicant's claims regarding the TNA, the Tribunal is unable to find any objective reason why the Applicant should be arrested upon his return to Sri Lanka. The Applicant's fear of the TNA is speculative and not well-founded on the evidence. Based on the Applicant's evidence, the Tribunal finds that the Applicant does not have a well-founded fear of persecution for a Convention reason and, therefore, that he is not in need of international protection."

The Judgment Below

21. The trial judge rejected the argument that the Tribunal had failed to give realistic and genuine consideration to the merits of the appellant's case. His Honour considered that the Tribunal had addressed the points raised by the appellant. Moreover, the fact that the Tribunal had not referred to particular items of evidence did not mean that it had not been taken into account. Accordingly, his Honour dismissed the application for judicial review.

 The Issue Before the Tribunal

22. The question before the Tribunal was whether the appellant satisfied the definition of "refugee" and, in particular, whether he had a well-founded fear of being persecuted for reasons of race or religion. This question, as the Tribunal recognised, was to be determined upon the facts, as they existed at the time the appellant sought recognition of his status as a refugee in Australia: Chan, at 386-387, 399, 405-406. The Tribunal clearly accepted that the appellant was fearful of being arrested upon his return to Sri Lanka by Government authorities. It also accepted that he was fearful of being forced to join the TNA and that he was afraid that the JVP, which was associated with a campaign of violence and brutality between 1988 and 1990, would threaten his life or freedom.

23. Although the Tribunal did not say so expressly, it appeared also to accept that the harm feared by the appellant - arbitrary arrest, detention and the infliction of physical injury - was capable of constituting "persecution" for the purposes of the Convention (Chan, at 390, 399, 416, 429-430), although of course the other elements of the definition of refugee must also be satisfied. As McHugh J noted in Chan (at 430), the threat of harm to the person claiming refugee status need not be the product of any policy of the government of that person's country of nationality. It may be enough, depending on the circumstances, that the government has failed to protect the person from the persecution. In making these observations, McHugh J referred specifically to a study of the position of Sri Lankan Tamils: P. Hyndman, "The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants" (1987) 9 Human Rights Quarterly 49.

24. The Tribunal identified three specific matters as the "bases" of the appellant's claim to refugee status. One of these, which the Tribunal referred to as "the housing dispute", was said not to be Convention-related. This was because there was no evidence before the Tribunal that the repossession of the family home was motivated by a Convention-related reason. However, the Tribunal appears to have accepted that the other two episodes caused the appellant to fear persecution for Convention-related reasons. The fears held by the appellant in relation to the JVP were that his life or freedom would be threatened by that organisation, because he was a Tamil. Similarly, his fears in relation to the TNA were that he would be subjected to arrest and forced military service because of his race. If those fears were well-founded, they amounted to fears of persecution for a Convention-related reason.

25. The remaining substantial issue facing the Tribunal, therefore, was whether the appellant's fear of persecution was "well-founded". The Tribunal referred to what was said on this subject in Chan, at 389, 398, 407, 429. For present purposes it is enough to cite the well-known passage from the judgment of Mason CJ in Chan (at 389):

"I agree with the conclusion reached by McHugh J that a fear of persecution is "well-founded" if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. This interpretation accords with the decision of the House of Lords in Reg v Home Secretary; Ex parte Sivakumaran (1988) AC 958. There Lord Keith of Kinkel spoke of the need for an applicant to demonstrate 'a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country' (1988) AC at 994, and Lord Goff of Chieveley spoke of "a real and substantial risk of persecution', (1988) AC at 1000. Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 421, where Stevens J, with reference to a statutory provision (which reflected the language of Art.1(a)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v Stevic (1984) 467 US 407 at 425, observed that the interpretation favoured by the majority would indicate that 'it is enough that persecution is a reasonable possibility' (1987) 480 US at 440. I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression "a real chance" because it clearly c onveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen (1986) 161 CLR 10, at 21, per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin."

26. In Chen Ru Mei v Minister, the Full Court (Northrop, Spender and Lee JJ) summarised the effect of Chan as follows (at 410):

"if it is accepted that an applicant for the determination of refugee status has a genuine fear of being persecuted, the task of the minister, or the tribunal, is not to weigh the prospect of occurrence of the persecution as a matter of likelihood, or probability, but to assess whether the fear of persecution is well-founded in the sense that there is a real chance of the occurrence of persecution, not being a chance that is so remote as to be fanciful or far-fetched."

The Test Applied

27. There is language in the Tribunal's reasons which suggests that, despite the reference to Chan, the Tribunal weighed the prospect of persecution as a matter of likelihood or probability, rather than assessing whether there was a "real chance" of the occurrence of persecution. For example, after referring to the apparent wiping out of the JVP, the Tribunal concluded that the reports of its resurgence "do not provide any conclusive evidence of the re-emergence of the JVP as an active political force capable of the atrocities it committed between 1988 and 1989" (emphasis supplied).

28. The issue for the Tribunal to decide was not whether there was "conclusive evidence" that the JVP was no longer an active force. The issue was whether the appellant faced a real chance of suffering persecution upon his return to Sri Lanka, including persecution at the hands of the JVP.

29. The Tribunal also dismissed the appellant's claim in relation to the so-called "housing dispute" as not Convention-related. But the evidence was not confined to that particular dispute. The evidence included accounts of the appellant being forced out of his home by race riots, being taken into custody by the army and subjected to physical abuse and being attacked by government supporters. The failure to refer to this material, on one view, suggests that the Tribunal did not apply the test in Chan. Had it done so, it would not have confined itself to a finding on the significance of the housing dispute, but would have assessed the evidence as a whole to determine whether there was a real chance that the appellant would suffer persecution on his return to Sri Lanka by reason of his race.

30. A body of authority in this Court suggests that, although the Tribunal's reasons should be read fairly, the language should be scrutinised with some care to determine whether the correct principles were applied. In particular, the reasons should be examined to ascertain whether the Tribunal "approached the matter as if (its) task were to determine the question on a balance of probabilities": Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Buoy (1994) 55 FCR 375 (FCA/FC), at 407, per Sheppard J (with whom Black CJ and Lockhart J concurred). In Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 567 (FCA/FC), it was held that, although the decision-maker used language showing that she was aware of the test she had to apply, her reasons indicated that she had not engaged in the necessary degree of speculation about the possibility of the applicant being subjected to persecution: see at 378, 381. See also Guo Wei Rong v Minister for Immigration and Ethnic Affairs (unreported, 26 February 1996, FCA/FC). In that case Beaumont J (who approached the matter somewhat differently than did Einfeld and Foster JJ) said (at 26-27) that the issue was whether the Tribunal "really addressed the correct legal question", notwithstanding that it had purported to do so.

31. In some cases it may be quite clear that, despite a reference to Chan and other relevant authorities, the Tribunal has misunderstood or misapplied the correct principles. In others the position will be much less clear. If the scrutiny of the Tribunal's reasons is carried too far, it may give rise to an issue as to whether the courts are "unduly interfer(ing) with administrative decisions" (see Transcript of Proceedings, application for special leave to appeal, Minister for Immigration and Ethnic Affairs v Wu Shan Liang, 15 December 1995, at 8, per McHugh J). It is, however, unnecessary to carry this issue further in the present case.

A Failure to Give Reasons

32. Rather than consider whether the Tribunal applied the correct test, I think it preferable to approach the matter by reference to the appellant's contention that the Tribunal failed to comply with the requirements of s.166E(1) of the Migration Act. It will be recalled that s.166E(1) requires the Tribunal not merely to set out the decision, but the reasons for the decision and the findings on any material questions of fact. It is also obliged to refer to the evidence on which the findings were made.

33. Care should be taken not to elevate the requirements of s.166E, or equivalent legislation such as s.43(2B) of the Administrative Appeals Act 1975 (Cth), into an occasion for a minute examination of reasons "with an eye keenly attuned to the perception of error": Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 (FCA/Lockhart J), at 708. As Lockhart J said in that case, if the Court is to keep within the proper bounds of judicial review of administrative decisions, it should approach the task of construing the reasons "sensibly and in a balanced way". See also Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (FCA/Gummow J), at 479.

34. Legislation such as s.166E(1) of the Migration Act does not require the Tribunal to prepare lengthy reasons dealing with every aspect of the evidence. What is required is that the Tribunal set out in "short and measured, but specific terms its findings in connection with" matters relevant to its decision: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 (FCA/Wilcox J), at 483, approved in Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 (FCA/FC), at 444. As Wilcox J observed in Our Town v ABT (at 481), it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. The standard required is not one of perfection and regard must be had to the composition of the Tribunal, which does not necessarily include trained lawyers: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCA/FC), at 157, per Sheppard J.

35. Within these limitations, it nonetheless remains true that a failure by a Tribunal to comply with the statutory duty to give reasons may justify judicial review of the Tribunal's decision. In Dornan v Riordan (1990) 24 FCR 564 (FCA/FC), a Full Court (Sweeney, Davies and Burchett JJ) held (at 573) that a substantial failure to state reasons for a decision, where a statement of reasons is a requirement of the exercise of the decision-making power under the statute, constitutes an error of law. The Court cited, among other authorities, Pettitt v Dunkley (1971) 1 NSWLR 376 (NSW CA), where it was held that the failure of the trial judge to give reasons made it impossible for an appellate court to determine whether or not the verdict was based on an error of law. See also Telescourt v Commonwealth (1991) 29 FCR 227 (FCA/von Doussa J), at 234; Anderson v Australian Postal Corporation (1993) 32 ALD 138 (FCA/Beazley J), at 145.

36. In Rich Rivers v ABT, the Court expressed the rationale underlying the statutory duty to give reasons, by adopting the language used by Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 (FCA/Woodward J), in reference to the unsuccessful party (at 507):

"Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging."

37. The observations of Sheppard J in Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 (FCA/FC), although obiter, are also helpful (at 88):

"The provision of reasons is an important aspect of the tribunal's overall task. Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal's conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal's reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the Tribunal has gone about its tasks appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the mater close enough attention or that it has allowed extraneous matters to cloud its consideration. There is yet a further purpose to be served in the giving of reasons. An obligation to give reasons imposes upon the decision-maker an intellectual discipline. The tribunal is required to state publicly what its reasoning process is. This is a sound administrative safeguard tending to ensure that a tribunal such as this property discharges the important statutory function which it has."

38. A key element in the appellant's case, as the Tribunal recognised, was that he had been forcibly detained in July or August 1989 by the TNA and subjected to torture. These events occurred only a few months before the appellant's departure from Sri Lanka for Australia. The events surrounding his detention by the TNA constituted only one element in the appellant's claim to refugee status. Nonetheless it was critical to his application, since it provided the foundation for his contention that he had a well-founded fear that, as a Tamil, he would be forced, on his return to Sri Lanka, to join the TNA. Despite the significance of this contention to the appellant's case, the Tribunal disposed of it simply by saying that:

"(i)t was unable to find any objective reason why (the appellant) should be arrested on his return to Sri Lanka. The (appellant's) fear of the TNA is speculative and not well-founded on the evidence."

39. It is impossible to ascertain from these cryptic comments what process of reasoning was adopted by the Tribunal. There are no findings of fact recorded in relation to the appellant's claim to have been detained by the TNA. The Tribunal cast no doubt on the credibility of the appellant, but did no more than summarise his factual claim in an incomplete manner. If the Tribunal intended to reject any part of the applicant's account, it did not say so. If it did not intend to reject his account, it is difficult to understand why the circumstances recounted by the applicant, together with other material relating to conditions on Sri Lanka in 1989 and subsequent years, did not warrant a finding that there was a real chance that he would be exposed to persecution at the hands of the TNA, for a Convention-related reason. Particularly is this so when there was evidence that the appellant had to travel regularly between Colombo and Jaffna, in areas controlled, at least from time to time, by the TNA.

40. I cannot entirely rule out the possibility that the Tribunal reached its conclusion, having paid due regard to the principles articulated in Chan. However, in the absence of findings of fact and some reasoning process, however succinctly expressed, a reader of the Tribunal's reasons simply cannot ascertain why the Tribunal reached its conclusion and whether or not it fell into legal error.

41. As I have indicated, the Tribunal also failed to refer specifically to evidence that the appellant had been forced out of his home by race riots in 1983, had been taken into custody by the army, had been physically abused while in custody and had later been subjected to attacks by government supporters. The evidence relating to these matters was set out in some detail in the documentation before the Tribunal. I think that there is a strong case to be made that the failure to make findings of fact or to explain why the circumstances did not justify a conclusion that the appellant's fear of persecution was well-founded, constituted a breach of the requirements of s.166E of the Migration Act. But whether or not the Tribunal's failure to deal with these matters is enough, of itself, to constitute a breach of s.166E of the Migration Act, it adds weight to the contention that the Tribunal has not complied with the statutory obligation to set out the reasons for its decision and the findings on material questions of fact. For these reasons, I consider that the appellant has made out its submission that the Tribunal failed to comply with the requirements of s.166E(1) of the Migration Act. Therefore, the procedures required by law to be observed in connection with the making of the decision were not observed: ADJR Act, s.5(1)(b).

Failure to Consider the Merits

42. In view of the conclusion I have reached I do not think it necessary to decide whether the Tribunal also failed to give the appellant's case proper, genuine and realistic consideration on the merits.

Conclusion

43. The appeal should be allowed and the orders made by the trial judge should be set aside. The decision of the Tribunal should be set aside and, in lieu thereof, it should be ordered that the matter be remitted for determination according to law. In the circumstances, I think it appropriate that the Tribunal be differently constituted. The Minister should pay the appellant's costs of the appeal and of the proceedings before the trial judge.