Ponnudurai v Minister for Immigration and Multicultural Affairs [2000]

IMMIGRATION - appeal from Refugee Review Tribunal - young Tamil male born in Jaffna who had lived some years in Colombo claiming fear of persecution there by security forces - effect of rejection of his evidence of particular arrests in the past - whether the Tribunal failed to take account of a core consideration, namely, substantial evidence that Tamils of his profile were generally at risk of persecution in Colombo - whether the Tribunal overlooked evidence that the situation in Colombo had changed since the applicant was living there, so far as he was concerned - a well-founded fear does not require an applicant to have actually suffered personal harm - whether the Tribunal failed to apply the "real chance" test properly - whether the Tribunal erred in asking, not whether the applicant was at risk, but whether he was "particularly" at risk or one of those "most at risk" - whether the past events upon the basis of which an applicant's future is to be predicted can be confined to those in which he was personally concerned - whether the Tribunal should have considered the degree of probability that the alleged events had occurred, and the relation of that to the "What if I am wrong?" test.

Migration Act 1958 (Cwth), s 476

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 applied

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied

Labed v Minister for Immigration and Multicultural Affairs [2000] FCA 35 applied

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 applied

Sivarasa v Minister for Immigration and Multicultural Affairs (Burchett J, unreported, 11 June 1998) applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Perampalam v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 431 applied

Mohamed v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 666 applied

El Merhabi v Minister for Immigration and Multicultural Affairs [2000] FCA 42 applied

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied

Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ, unreported, 21 December 1998) applied

Chetwynd-Talbot v Chetwynd-Talbot [1963] P 436 referred to

Howarth v Howarth [1964] P 6 referred to

Minister for Immigration and Multicultural Affairs v Al Husaini [1999] FCA 1307 referred to

GOWRY SHANKER PONNUDURAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 13 of 1999

BURCHETT J

11 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 13 of 1999

BETWEEN:

GOWRY SHANKER PONNUDURAI Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: BURCHETT J

DATE OF ORDER: 11 FEBRUARY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

(1)  The decision of the Refugee Review Tribunal be set aside and the matter be remitted to the Tribunal, differently constituted, for determination according to law.

(2)  The respondent pay the applicant's costs.

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 13 of 1999

BETWEEN:

GOWRY SHANKER PONNUDURAI Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: BURCHETT J

DATE: 11 FEBRUARY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

1. The applicant has filed in the Court, for the third time, an application for review of a decision of the Refugee Review Tribunal refusing him a protection visa. Twice before he was refused, and on each occasion the Minister conceded that he had not received a decision according to law, with the result that by consent the matter was referred back for re-determination by the Tribunal differently constituted. It is with the decision of Mr G Short, after the third hearing in the Tribunal, that the present application is concerned.

2. The applicant is a young man, a Tamil born at Jaffna, in Sri Lanka, on 2 November 1966. In late 1989, he was forced to attend a number of classes conducted by the Liberation Tigers of Tamil Eelam (LTTE) in Jaffna, despite the representations of his parents, who sought to have him exempted on the ground of a severe limp, the aftermath of childhood polio. Their representations being of no avail, his parents sent him to Colombo, where he became a student, and subsequently obtained a senior position in a school of some prestige, St Joseph's College. Not long afterwards, in May 1990, his father was taken away by the LTTE and has not been seen since. In June 1990, his two younger brothers also came to Colombo, where they were arrested and, it was said, tortured, but were released after a court proceeding, and fled to the United Kingdom. They were apparently accepted as refugees, and live there.

3. The applicant claimed to have been able to live in Colombo without serious problems, although he said he was arrested on several occasions in general search and round-up operations conducted by the authorities. By 1994, he was a Course Director at St Joseph's College. He said, as the Tribunal noted, he was "approached by members of the Eelam National Democratic Liberation Front (ENDLF) who had formerly been members of the EPRLF [Eelam People's Revolutionary Liberation Front] ... to join their intelligence network". At one of the hearings he has attended, when he gave evidence, he referred to the organisation involved as the EPRLF. In his oral account to Mr Short, the applicant said that, after being approached by the ENDLF on a number of occasions, he was arrested in May 1995 and taken to an army camp, where he was beaten, but released after about five hours. It was the applicant's case that, following this arrest, which was not an ordinary search and round-up operation of the kind that occurred from time to time, he resigned his position at St Joseph's College and arranged to leave the country. He actually left in December 1995 for Singapore, but was unable to get any further (it was suggested, because of an agent cheating him), and had to return to Sri Lanka. He left again on 20 February 1996 to come to Australia.

4. The applicant pointed out, as the Tribunal noted, "that following the breakdown of peace talks between the Government and the LTTE in April 1995 there had been a number of incidents which made it unsafe for a young Tamil like himself to return to Sri Lanka. He referred to reports of various bombs exploded by the LTTE in Colombo and the rounding up of Tamils in Colombo and elsewhere by the security forces. He also said that he feared a backlash by the Sinhalese people against the Tamils." The applicant alleged too that, in the interval between his return from Singapore and his departure for Australia, he had been required, on 14 and 15 February 1996, to go to the CID headquarters (ie the headquarters of the Criminal Investigation Department), where he was interrogated and beaten, and that he was required to report again on 20 February 1996, but did not do so as that was the day he left Sri Lanka.

5. There is no doubt that the time when the applicant fled from Sri Lanka was a time when the conflict between the government forces and the LTTE was at a peak. Mr Short notes that "[i]n October 1995 the Sri Lankan Army launched a major offensive in the Jaffna Peninsula under the code name `Operation Riviresa'. The LTTE blew up the country's two largest oil storage facilities at Kolonnawa in Colombo in October and in mid-November two LTTE suicide bombers caused 18 deaths and more than 50 injuries in Colombo. The army captured Jaffna in mid-December 1995. In January 1996 the LTTE exploded a bomb at the Central Bank building in Colombo, resulting in 100 deaths and about 1400 injuries. In April 1996, ... the army took control of much of the rest of the Jaffna Peninsula and it completed this process ... in mid-May 1996." These events had been preceded by a period of peace talks which the LTTE had terminated unilaterally in April 1995.

6. As at the date of the decision made by Mr Short, on 14 December 1998, the current situation in Colombo, he noted, was to be gauged from a report by the Australian Department of Foreign Affairs and Trade (DFAT), dated 13 February 1998, as follows:

"Since October 1997, the LTTE has launched an attack in the south every month, including two in Colombo .... . The frequency of LTTE attacks has led to a considerable tightening of security in Colombo. In the last month an additional reason for tighter security was the 4 February celebrations for the 50^th anniversary of independence. The tighter security situation is felt especially by members of the Tamil community. As security tightens, more people are being arrested, and the impact of the security measures are [sic] being felt by more Tamil people."

Mr Short also accepted:

"In its most recent assessment of the human rights situation in Sri Lanka the Australian Department of Foreign Affairs and Trade stated that there had been no reports of disappearances in police custody in Colombo over the past twelve months. However it was estimated that approximately half of the people in detention in Colombo were mistreated and that in a small number of cases the mistreatment was serious".

He noted too a United States State Department report for 1997, according to which "[s]ince April 1995 at least 700 persons have been extrajudicially killed by the security forces or disappeared after being taken into security forces custody and are presumed dead. As of year's end, no member of the security forces had been convicted for any of these crimes." Of significance in support of the applicant's story was a finding that pro-Government Tamil groups such as the EPRLF "are used by the Sri Lankan security forces as informants. They are particularly active in the refugee camps around Vavuniya and in the war zones in the North and the East where they have reportedly been involved in extrajudicial killings, illegal arrests, torture and extortion of [sic] civilians".

7. Mr Short, in his consideration of this matter, was particularly concerned by certain discrepancies in the applicant's account of events directly involving him, and by his failure to mention, in his original written application, all of the details he later put forward in evidence at the various hearings. Some of the discrepancies the Tribunal perceived might seem to other minds, and particularly to those with experience of the giving of evidence through interpreters, to carry little weight; and indeed, at earlier stages of this matter, some evidence which Mr Short did not believe, was accepted. Nevertheless, it was for him to find the facts, and the manner in which he did so was not the focus of any submission of law. Ms Wilkins, who appeared for the applicant, concentrated her thoughtful submissions on the reasoning which followed Mr Short's rejection of the applicant's evidence about his own experiences. It is necessary to an understanding of the arguments presented to set out in some detail this portion of the reasons of the Tribunal, as follows:

"Having rejected the Applicant's evidence with regard to his past persecution by the Sri Lankan authorities and pro-Government Tamil militant groups in Sri Lanka, I do not consider that he will face a real chance of being persecuted by the Sri Lankan authorities or by such groups if he returns to Colombo now or in the foreseeable future. Since I do not accept that he was required to report to the CID on 20 February 1996, it follows that I do not accept that, because he supposedly failed to report, and because he subsequently left the country, he will be regarded as an `LTTE person' on his return. I do not accept that the Applicant as an individual has ever been of any interest to the Sri Lankan authorities or to any of the pro-Government Tamil militant groups operating in Colombo, nor that he will be of any interest to the authorities or to such groups on his return. I consider that his evidence in this regard is a fabrication intended to support his application for a protection visa.

I accept that if the Applicant returns to Sri Lanka he may be stopped from time to time at checkpoints in the city. Such checkpoints are part of the security measures presently in force in Colombo and I consider that they may be regarded as measures `appropriately designed to achieve some legitimate end of government policy' (see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, per McHugh J at 354). In any event, the Applicant's own evidence was that he had had no problems at checkpoints: he would show his National Identity Card, explain where he worked, and be allowed to pass. This is consistent with the independent information available to me that Tamils who have jobs in Colombo are not normally harassed by the police .... .

I do not accept that, as the Applicant's then representatives submitted to this Tribunal in September 1996, the Applicant will have limited prospects of obtaining employment if he returns to Colombo. The Applicant claimed that he had held a prestigious position at St Joseph's College: indeed he claimed that this was one of the reasons why the ENDLF (or the EPRLF) had wanted to recruit him. I have rejected the latter claim and I consider that the Applicant has exaggerated the prestige attaching to his position as he has exaggerated in other aspects of his evidence. [It is interesting to note that, at an earlier stage of his reasons, Mr Short had said of the applicant: "He had held a prestigious position and would no doubt be able to obtain employment on his return."] Nevertheless, it is clear that the Applicant has marketable skills in computing training and I accept that he held a position at St Joseph's College which is a prestigious institution in Colombo. I consider, therefore, that he should not have difficulty finding secure employment on his return to Sri Lanka. Apart from his brief excursion to Singapore, the Applicant resided successfully in Colombo from November 1989 until February 1996. I do not consider, therefore, that he has a well-founded fear of being discriminated against in relation to employment or in other areas of his daily life by reason of his race (Tamil) or for any other Convention reason, if he returns to Colombo now or in the foreseeable future.

I do not accept that, as the Applicant suggested on his original statement, he will be arrested if he returns to Sri Lanka because he is a single Tamil man with a National Identity card indicating that he was born in Jaffna. This claim is inconsistent with the Applicant's own evidence (at the hearing before this Tribunal (differently constituted) on 10 December 1997) that he had had no problems at checkpoints: he would show his National Identity Card, explain where he worked and be allowed to pass. As I put to the Applicant in the course of the hearing before me, the information available to me suggests that those most at risk of arrest are young Tamils, particularly those who have recently travelled from the North or the East ... . The Applicant's representative referred to information suggesting that all Tamils are at risk of being arrested and that all Tamils are regarded as potential LTTE members. It is certainly true that, as the Applicant's representative has pointed out in his submissions, it is possible to identify instances in which older Tamils, for example, have been arrested in Colombo. However it does not follow from such instances that all Tamils, whatever their age, and whether they have lived in Colombo all their lives or whether they are only recently arrived from the North or the East, are equally at risk. To the extent of any inconsistency I prefer the advice referred to above from both the Australian Department of Foreign Affairs and Trade and Amnesty International which suggests that those at particular risk of being arrested are young Tamils who have recently arrived in Colombo from the North or the East.

Moreover, as the High Court said in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 579 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ [actually, Gaudron J was also a party to this judgment], `what has happened in the past is likely to be the most reliable guide as to what will happen in the future'. [This case is now reported in 191 CLR 559, and the passage which the Tribunal quotes, though not quite accurately, appears at 575.] I have rejected as a fabrication the Applicant's account of his past experiences in Colombo, and in particular his claims that he was repeatedly arrested and accused of being involved in the LTTE. It follows that I consider that there is not a real chance, as distinct from a remote possibility, that the Applicant will be arrested in the future by the Sri Lankan authorities by reason of his race (Tamil) or his imputed political opinion (support for the LTTE). ...."

8. Counsel for the applicant points out that this whole passage entirely omits any consideration of the difference between the situation that confronted the applicant when he was living in Colombo and the situation that would confront him if he were sent back there. For some years, he had a senior position at a prestigious institution. At least initially, on his return, he could be expected to have a period of unemployment, and perhaps he would be unable to obtain a comparable position, even if his computer skills led to some employment, as the Tribunal forecast. He does not speak any Sinhalese. He would be a young man, without family in Colombo, who had been born (as his identity card shows), and had grown up, in Jaffna. Over a period of less than twelve months before he left, the war had become much more intense, following the breakdown of peace negotiations in April 1995, and it has continued to be intense. Evidence before the Tribunal, which was not criticized as lacking credibility to provide a basis for the assessment of the circumstances in which it had to be determined whether the applicant would be exposed to a real chance of persecution, included the well known report to the British Refugee Council of February 1997. That report (some details of which will be found set out in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 30-31 and 36) referred to the statement, in November 1996, of the British "Foreign Office minister, Dr Liam Fox, [who] told Parliament that, `I have been worried in recent days by an increasing number of reports of human rights abuses'." It notes that in August 1996 Amnesty International had expressed concern "that the government is not living up to its stated commitment to human rights. Extrajudicial executions, `disappearances', torture and widespread arbitrary arrests continue to take place." It also referred to the statement of a Sri Lankan Supreme Court judge in November 1996 that "the court had made a number of judicial pronouncements against the use of torture and inhuman treatment by law enforcement officers, but regardless, torture in police stations continues unabated". These are strong words from the national court. The report refers to discussions in Colombo which "confirmed that Tamils continue to be singled out for attention by the security forces." It cites a statement of Amnesty International in 1996 that "among those most at risk of arrest were young Tamil men and women, particularly those who had recently travelled to Colombo from the North and East", and then comments that this "is especially the case for those Tamils whose identity cards state their birthplace as Jaffna". The report sums up the situation in Colombo as at February 1997:

"Despite the attempts by the government to promote human rights, the culture within the Sri Lankan security forces remains suspicious of Tamils - in particular young males, although all Tamils, whether male or female, young or old, are at risk. That Tamils should come under suspicion because of the actions of the LTTE is understandable. What is concerning is the continued use of detention without trial, and in contravention of the Emergency Regulations; of torture to extract confessions, often in a language not understood or spoken by the signatory; and of extrajudicial executions which are linked to the security forces. While there has been a systematic reduction in human rights violations, particularly against the Sinhalese population, there continues [sic] to be human rights violations in Colombo, particularly against Tamils, which the Government appears to be unwilling or unable to prevent. It is for this reason that Colombo should not be assumed to be safe for Sri Lankan Tamils."

9. The Tribunal also had before it a Country Information Report sourced from the Department of Foreign Affairs and Trade, dated 23 March 1998, which referred to a "major difference" in the situation in Colombo since October 1997, namely, "the increase in LTTE bomb attacks in Colombo since October 1997 and the resultant intensification of security". One may comment by asking rhetorically, would not a person with the applicant's profile be at risk of arrest and mistreatment if he were nearby in Colombo after such a bomb attack? That he had not been arrested before the increase in bomb attacks and intensification of security could hardly be held to dispel this risk. The report of the Department stated too that the Sri Lankan Human Rights Task Force had been disbanded, and that a Human Rights Commission which had been established had "not yet achieved the level of operational efficiency" of the previous body. A further Country Information Report, dated 15 May 1998, from the Department of Foreign Affairs and Trade included the statement:

"The incidence of serious mistreatment in detention in Colombo has been declining since mid-1996. It is estimated that approximately half of the people in detention in Colombo are mistreated, and in a small number of cases the mistreatment is serious".

That the author of the report should appear to regard a degree of improvement, resulting in a situation described in these terms, as cause for some cheer might be thought particularly revealing.

10. It is in the light of this evidence that counsel submits the Tribunal was bound in law to consider whether there was a real chance the applicant would suffer persecution upon returning to Colombo, even though it had rejected his account of particular acts of persecution in the past.

11. Counsel also pointed to a number of passages in the reasoning of the Tribunal as indicative of a fundamental failure to examine the central question which the law required it to consider, whether the applicant's fear of persecution was "well-founded" in the sense that there was a real chance he would be persecuted if he returned to Colombo. In the portion of the reasons I have quoted, the Tribunal said it did not accept "that, as the Applicant suggested on [sic] his original statement, he will be arrested if he returns to Sri Lanka because he is a single Tamil man with a National Identity card indicating that he was born in Jaffna". It is not really material to the point of law, but is indicative of the Tribunal's approach, that it began by misquoting the statement to which it referred. The applicant actually said:

"I am in fear that if I return to Colombo, I will be arrested by the security forces ... ."

To assert a fear of arrest is to assert a risk of it, a fear that obviously depended on a real chance such as the "real chance of persecution from the Sri Lankan security forces" to which the applicant referred in the very next paragraph of his statement; he was not asserting a certainty. To take the proposition as being that he "will be arrested", and then to point out that he had escaped arrest in the past in certain circumstances (although, even so, the right question is not what might happen to him in those circumstances, but what might happen to him in general, and more especially, in one of the "mass arrests of Tamils in operations known as round-ups or `cordon and search' operations" which the Tribunal had earlier conceded do occur) is really to miss the point. The requirement imposed on the Tribunal was to assess whether there was a real chance of persecution in the future, and the law to be applied was that stated in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-572:

"An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a `well-founded' fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, Mason CJ said:

`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.'

In the same case, McHugh J said (at 429) that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.

Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term `well-founded fear' is to invite error."

12. Having negatived, not that the applicant's fear of persecution was well-founded in a real chance of it, but that "he will be arrested", the Tribunal continued by referring to a suggestion it had derived from the evidence "that those most at risk of arrest are young Tamils, particularly those who have recently travelled from the North or the East". But the expression "those most at risk" and the word "particularly" indicate how far the Tribunal had strayed from the path of decision according to law. The question was not whether the applicant was most at risk, or whether he was one of those particularly at risk, but whether his fear of persecution was well-founded in a risk sufficiently tangible to enable it to be said that there was a real chance of persecution. The Tribunal went on to refer to the submission of the applicant's representative, which did relate to the true question, put in reliance on "information suggesting that all Tamils are at risk of being arrested and that all Tamils are regarded as potential LTTE members", and urging that, a fortiori, a young male Tamil with the applicant's antecedents would be at risk. But the Tribunal, while acknowledging the accuracy of this to the extent that it "is certainly true that ... it is possible to identify instances in which older Tamils, for example, have been arrested in Colombo", then avoided the issue by a return to the irrelevancy that what was submitted to be a demonstrable risk was not "particular", so as to put the applicant "equally at risk" with others for whom a particular risk could be shown. The Tribunal said "it does not follow from such instances that all Tamils, whatever their age, and whether they have lived in Colombo all their lives or whether they are only recently arrived from the North or the East, are equally at risk." It said it accepted evidence "that those at particular risk of being arrested are young Tamils who have recently arrived in Colombo from the North or the East." This simply does not meet the point made by the applicant's representative. Of course, for example, in World War II, the crew of a bomber were not all "equally at risk". The rear gunner was notoriously "at particular risk". But it did not follow that other members of the crew were not at risk, and did not have a real chance of being killed. The Tribunal's discussion of those most at risk, or particularly at risk, just diverted its attention from the case being made on behalf of the applicant, so that it never considered the core question which remained for decision after it had rejected the applicant's account of particular arrests he claimed to have suffered. A failure of this kind involves an error of law within s 476(1)(c) and (e) of the Migration Act 1958, and, in addition, s 476(1)(a): Labed v Minister for Immigration and Multicultural Affairs [2000] FCA 35 at para 32 (Kenny J); Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at paras 17, 19-23, per Wilcox and Madgwick JJ, 49-50 and 60, per Hill J; Sivarasa v Minister for Immigration and Multicultural Affairs (unreported, 11 June 1998, Burchett J) at 13-14, a passage cited when the case went on appeal as Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 45; Paramananthan at 37, 60, 62-63; Logenthiran v Minister for Immigration and Multicultural Affairs (unreported, 21 December 1998, Wilcox, Lindgren and Merkel JJ) at 12-13 per Wilcox and Lindgren JJ, and at 1-2 per Merkel J.

13. Then the Tribunal referred to that part of the reasoning in Guo (at 191 CLR 575; 144 ALR 579) where it is stated that "what has occurred in the past is likely to be the most reliable guide as to what will happen in the future". The Tribunal said it had "rejected as a fabrication the Applicant's account of his past experiences in Colombo, and in particular his claims that he was repeatedly arrested and accused of being involved in the LTTE." The Tribunal concluded:

"It follows that I consider that there is not a real chance, as distinct from a remote possibility, that the Applicant will be arrested in the future by the Sri Lankan authorities by reason of his race (Tamil) or his imputed political opinion (support for the LTTE)."

But of course this does not follow at all. The past of which the High Court spoke was not limited to the experiences of one individual. At the very same page, their Honours referred to "what ... had happened to .... others" as correctly going to the relevant finding. In the present case, the issue I have been discussing, arising out of the submission of the applicant's representative about the situation of Tamils in Colombo, was certainly based on past events, but they were past events which had been thoroughly documented in respect of numerous "others", that is to say, other Tamils, and their treatment by the security forces. Again, the Tribunal's error was not so much in the obvious non sequitur into which it fell in concluding that an absence of a real chance of something happening to an individual in the future followed from its disbelief that particular similar things had already happened to that individual in the past, but rather in the consequence, that it failed to consider, as it was legally bound to do, whether a wealth of material before it, relating to past occurrences, showed the applicant's fears to be well-founded in a real chance of future occurrences.

14. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 (see also 281), Brennan CJ, Toohey, McHugh and Gummow JJ declared "it is clear that the test in Chan necessitates speculation in the sense of prediction, in other words, an assessment of the future. That is implicit in the formulation `real chance'." In Guo, the joint judgment states (at 574; 578):

"In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. ...

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity."

See also the comment of Kirby J in the same case (at 585; 587).

15. In the present case, the Tribunal did not consider whether the prevalence of mistreatment, including torture, of Tamils in Colombo over the past years, and especially in the period since the applicant left Sri Lanka, raised a probability, or real possibility, that the applicant would be so treated if he returned. Particularly, the Tribunal did not consider this question in the light of the submission which had been made to it that the applicant was a young man who did not speak Sinhalese and whose identity card stated his place of birth as Jaffna, nor did it take into account evidence from Amnesty International that the previous targeting of his brothers by the Sri Lankan security forces "would enhance any existing suspicions of Mr Ponnudurai's political affiliations". It did not consider the evidence relating to these matters, nor did it take account of the intensification of the conflict in Sri Lanka which had only just begun at the time he left, and has continued since. It did not consider the evidence of numerous and regular acts of mistreatment of Tamils in Colombo as a guide, not certain, but indicating the real chance that Mr Ponnudurai, though it found him not to have suffered personally in the past, might suffer persecution within the Convention in the future. It is, of course, clear law that a member of a victimised group (whether identified by race, political opinion or otherwise within the Convention) could have a well-founded fear of persecution, though he or she had been able in the past to escape harm entirely: Perampalam v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 431 at 438; Mohamed v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 666 at 673; El Merhabi v Minister for Immigration and Multicultural Affairs [2000] FCA 42 at para 23. As Toohey J said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 406, "it is fear of persecution of which Art. 1A(2) [of the Convention relating to the Status of Refugees] speaks, not the fact of persecution". So Mr Short's disbelief of the applicant's allegations of personal harm suffered in Colombo could not conclude the matter. It should be noted that, not only did the Tribunal fail to consider whether the applicant would be at real and relevant risk even if it was correct that he had not personally suffered in the past, but also, the finding that he had not suffered in the past was made without regard to its incongruity in the light of the general evidence. For he had given an account which was entirely consistent with a great body of evidence about events in Colombo during the period in question. The general evidence would make it appear that Mr Ponnudurai was remarkably lucky if, as the Tribunal found, he was not arrested and mistreated on any of the occasions to which reference was made. Had the Tribunal conceded weight to that consideration, it might have held, consistently with the reasoning of the joint judgment in Guo (at 576; 579-580), and despite its failure to be persuaded by the applicant's own word, that there was some degree of probability supporting his evidence, or some similar version of events, which was required to be taken into account in assessing the future. This form of reasoning is sometimes described as asking: What if I am wrong? But to adopt it is really to recognize that there may be a degree of probability that events have occurred, even if the Tribunal is not convinced that they actually have occurred: Guo (at 574 and 576; 578 and 579-580); cf Chetwynd-Talbot v Chetwynd-Talbot [1963] P 436 at 447-448, approved by the Court of Appeal in Howarth v Howarth [1964] P 6 at 15-17; Minister for Immigration and Multicultural Affairs v Al Husaini [1999] FCA 1307 at para 12 (the two English cases provide striking illustrations of the principle involved, since the findings with which they were concerned were findings of adultery after contested hearings, but the Court of Appeal held the chance of error still had to be recognized). Where there remains some degree of probability that a relevant event has occurred, the Tribunal "must take into account the chance" of the occurrence: Guo (at 576; 580). That is an obligation of law.

16. The respects in which I have found the Tribunal's reasons wanting cannot be dismissed as mere infelicities of expression, or errors perceptible only upon an over-refined analysis: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. They concern fundamental issues in the case. Any doubt that the Tribunal meant what it said when it grounded its rejection of a real chance that the applicant would be persecuted in the future upon its rejection of his account of his past experiences in Colombo, is dispelled by a passage in the transcript of the hearing before the Tribunal, to which express reference is made in its reasons. Mr Short said to the applicant:

"Now, if I don't accept your evidence in relation to you having been summoned to the CID headquarters in February 1996, I wouldn't take the view that you were at particular risk of being persecuted if you return to Sri Lanka either by reason of the fact that you're Tamil or because you would be suspected of being a supporter of the LTTE.

The information available to me suggests that those most at risk of arrest in Colombo are young Tamils, particularly who risk you [sic - quaere scilicet who recently] travelled from the North or the East. And now, you've been a resident of Colombo for around six years. You held a prestigious position there, and you will no doubt be able to obtain employment readily again. That suggests to me that you wouldn't fit the profile of the sort of people who are most at risk of being arrested in Colombo."

When Mr Short referred to this passage in his reasons, he said:

"I put to the Applicant that if I did not accept his evidence with regard to his having been summoned to the CID headquarters in February 1996, I would not accept that he would be at particular risk of being persecuted if he returned to Sri Lanka by reason of his race (Tamil) or his imputed political opinion (support for the LTTE). I put to him that the information available to me suggested that those most at risk of arrest were young Tamils, particularly those who had recently travelled from the North or East ... . ... I put to him that, as I had already indicated, my suggestion that he would not have problems was predicated on my finding that I did not believe that he had had these problems with the police and the CID".

17. For these reasons, the Court orders that the decision of the Refugee Review Tribunal be set aside, and that the matter be remitted to the Tribunal, differently constituted, for determination according to law. The respondent must pay the applicant's costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett J.

Associate:

Dated: 11 February 2000

Counsel for the Applicant: Ms E Wilkins

Solicitor for the Applicant: McDonells

Counsel for the Respondent: Ms F Backman

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 11 May 1999 (RRT transcript received 19 July 1999)

Date of Judgment: 11 February 2000