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Well-founded fear - determination of - factors relevant - whether fear of being persecuted well-founded if it is merely assumed or if it is mere speculation

1 It was impossible to find that the RSAA had made any error of law in applying the "real chance" test as interpreted and applied in the New Zealand and Australian jurisprudence. It was well settled that the "real chance" test for determining refugee status was not to be calculated on a percentage chance of persecution occurring but on the basis that such a chance is substantial and not simply remote or speculative. No fear can be well-founded for the purpose of the Refugee Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation (see para [16]).

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

2 The test was an objective one and whilst the facts need not be proved to a balance of probability standard, it was the responsibility of any person claiming refugee status to establish the elements of a claim for refugee status. In order to determine whether a real chance of persecution exists, the tribunal must first form an opinion as to what is likely to happen. This necessitates an assessment of past events to determine the probability of their recurrence (see para [17]).

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

3 An assessment of a real risk of persecution clearly requires information about the history of the person claiming refugee status and alleging past persecution; information about their profile or likely profile with the authorities from whom they seek refuge; and evaluation of the current political situation in the country to which they say they are unable to return. Such assessment must be made bearing in mind that the risk to be identified is the risk of "persecution" and not some other risk or danger (see para [18]).

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA) referred to.

4 The submission that the RSAA should have considered the possibility that the findings were inaccurate before reaching its decision was wrong in law (see paras [22] & [23]).

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

Paramanthan v Minister of Immigration and Multicultural Affairs (1998) 160 ALR 24 (Full Ct FCA)
SWH v Refugee Status Appeals Authority (CP203/97, HC Wellington, 7 April 1998)

Counsel
J S Petris for the plaintiffs
P McCarthy and D L Harris for defendants

[Editorial note: The effect of this decision is to uphold the decision of the RSAA in Refugee Appeal No. 72668/01 [2002] NZAR 649 at [145] - [151], a decision not cited by Goddard J.

To the extent that the judgment of Goddard J at [24] suggests that Article 1A(2) of the Refugee Convention posits both a subjective state of mind and an objective assessment, the RSAA has explicitly rejected the argument that a refugee claimant is required to establish both subjective fear as well as an objective risk of harm. The Convention requires only that the objective risk be established. See for example Refugee Appeal No. 70074/96 (17 September 1996); [1998] NZAR 252, 260-263; Refugee Appeal No. 72668/01 [2002] NZAR 649 at [132] - [140] and Refugee Appeal No. 72635/01 (6 September 2002); [2003] INLR 629 at [56] & [57]. These authorities may not have been brought to the attention of Goddard J.]

Introduction

[1] The plaintiffs who are citizens of Sri Lanka of Tamil ethnicity seek judicial review of a decision by the Refugee Status Appeals Authority (“the Authority”) declining their appeal for refugee status. The plaintiffs are mother and daughter aged respectively 62 and 26 years. The former is a widow and the latter is unmarried.

[2] The plaintiffs together with their father/husband left Jaffna Province in Sri Lanka in 1996 to get away from the fighting between the Sri Lankan Army (“SLA”) and the Tamil Tigers (“LTTE”). Other members of their immediate family also left Sri Lanka at around this time to seek refuge in other countries, believed to be Canada, Norway, Germany and England. One of their sons/brothers came to New Zealand from Sri Lanka in 1995 and (counsel advised) was accorded refugee status. The plaintiffs and their father/husband went to India where they lived in a refugee camp in Tamil Naidu State. At some stage they moved to another camp where they were issued with identity cards. The plaintiff daughter enrolled for and completed a six month computer course at a centre in the town of Tiruchy in Tamil Naidu. In 1997 the family moved out of the camp and went to live in the town of Tiruchy.

[3] In July 2000 the plaintiffs and their father/husband arrived in New Zealand from India where all three applied for refugee status. However the father/husband died later that year. The plaintiffs were declined Refugee status, although not until 18 April 2002. Temporary visitors permits with which they had been issued were however extended pending their appeals to the Authority, which were heard on 13 June 2003 and dismissed on 20 January 2004. Those temporary permits have now expired.

[4] The two plaintiffs live independently of their brother/son in New Zealand and the plaintiff daughter wishes to further her studies here. She has been able to work on a temporary work permit whilst in New Zealand.

[5] The history of the plaintiffs and their family in Sri Lanka and the historical and current state of the conflict situation in Sri Lanka and the peace process in that country has been comprehensively recorded by the Authority in his decision and does not require reiteration here. The essence of the plaintiffs’ case as argued before the Authority is encapsulated in the following passages of his decision:

The appellants’ responses on being asked what they fear if they return to Sri Lanka were as follows. The appellant [daughter] fears being asked to join the LTTE if she returns home (ie to the Jaffna Province), and fears going to Colombo as she does not know it and has no friends there. She fears being asked a lot of questions at the airport when she arrives in Sri Lanka. The appellant’s mother fears they will be shot and killed if they go back to Sri Lanka. She said she is old and does not have anyone to care for her if she returns, while in New Zealand she has her son to help and sleeps peacefully.

More generally, in the evidence as a whole, the following fears emerged. The appellants only lived in the Jaffna Province area while in Sri Lanka and do not know the rest of Sri Lanka or Colombo. They fear the LTTE and the SLA and authorities. Their documentation indicates their birthplace X, which has associations with the LTTE movements, and is more likely to therefore arouse interest by the Sri Lankan authorities. The appellants’ knowledge of events in Sri Lanka since arriving in New Zealand is largely based on what they hear on the BBC.

Counsel made various submissions, which were all considered. Counsel submitted, inter alia, that the appellants’ family has suffered to a significant degree as a result of the “troubles” in Sri Lanka: When they left for India they were effectively refugees at that time. The appellant is still at an age when the LTTE put pressure on young people to join their organisation, and whilst this potential danger was especially in the appellant’s home area, it was still possible even if she went to another part of Sri Lanka, such as Colombo, as she is a Tamil from the north.

Counsel conceded that the current UK Home Office and US State Department reports and other country information indicate an improvement in the situation in Sri Lanka and that the peace process has currently resulted in relative peace, but emphasised the ongoing difficulties and disagreements in the process, and referred to the report of a crisis in the peace process, which was supported by the BBC internet printouts and newspaper extracts (attached to his written submissions). Counsel also referred to the ongoing problem of the LTTE still occupying some homes in the north and the continued existence of displaced persons in Sri Lanka, despite the peace process. He submitted in his written submissions that the situation had not stabilised enough that the appellants’ fear of returning to Sri Lanka was not well founded. He submitted that there are two scenarios that the Authority should consider as possible, one that the peace process would remain and the other that it would collapse and the conflict would resume.

Grounds of review

[6] Two grounds were advanced in support of the application for review. These were as follows:

First ground of review

[7] In support of the first ground of review Mr Petris submitted that the Authority had been faced with a high degree of uncertainty as to what exactly would occur to the plaintiffs should they return to Sri Lanka, particularly as they have been away from that country since 1996. Further, that this uncertainty was compounded by the general uncertainty in Sri Lanka over whether peace would be established or civil war recommenced. In this regard he noted that the LTTE was still occupying some parts of northern Sri Lanka.

[8] After citing the established test for determining refugee status in article 1A(2) of the Refugee Convention and various authorities, but more particularly SWH v Refugee Status Appeals Authority (CP203/97, HC Wellington, 7 April 1998); Chan Yee Kin v The Minister of Immigration and Ethnic Affairs [year] 169 CLR 379; Minister for Immigration and Ethnic Affairs v Guo (HC of Australia) in relation to the interpretation and application of the test, Mr Petris summarised his argument under this head as follows:

(a)    The situation in Sri Lanka is uncertain and the Authority accepted the consideration of two scenarios. Given this uncertainty it was required to consider whether its findings that there was no real chance of persecution were inaccurate.

(b)    Credible information had been provided of continued recruitment by the LTTE.

(c)    The Plaintiffs had left Sri Lanka as refugees to avoid recruitment and the Authority accepted this evidence.

(d)    The Plaintiff [R] has a risk of persecution having regard to her home town and family history.

(e)    The uncertainty as to the whereabouts and circumstances of the Plaintiffs’ two siblings in Sri Lanka does not confirm that they have not been harmed or persecuted. On the contrary it may indicate that they have been the subjects of persecution and the Authority did not consider this possibility.

It is therefore submitted that the Authority failed to correctly apply the “real chance” test by failing to consider whether its findings were inaccurate. Further it was required to consider whether its finding that the Plaintiffs would not face a real chance of persecution if civil war broke out may be inaccurate, given the uncertainty regarding (a), (d) and (e).

Second ground of review

[9] In many ways this ground of review mirrors the first ground of review. The submission under this head was that it was illogical for the Authority to find the plaintiff’s daughter’s account of her encounters with the SLA and LTTE credible whilst nevertheless stating with confidence that the plaintiff daughter would again be able to evade recruitment by the LTTE in the north if the cease-fire collapsed. On this issue, the Authority specifically found at para 54:

Prior to the cease-fire there was a higher risk of forced recruitment by the LTTE in the north, where government control was tenuous or there was LTTE control, than in Colombo or the south of the country. The danger is that this risk would return if the cease-fire collapses. The question is how this would impact on the appellant if she returns to Jaffna Province. In assessing this and coming to a conclusion, it is appropriate to reiterate how the risk impacted on her in the past. The appellant’s only assistance to the LTTE, was helping her sister to provided meals for the LTTE in 1991. She refused to continue with this assistance after her sister died in 1991 and no action was taken against her. The appellant successfully resisted recruitment by the LTTE between 1991 and 1996 when she went to India, and again no action was taken against her. Considering this, the Authority has every confidence that the appellant would again be able to evade recruitment by the LTTE in the north, if the cease-fire collapsed. The Authority does not consider there is a real chance of persecution of the appellant by forced recruitment to the LTTE, if the appellant returns to the Jaffna Province and the cease-fire collapses and conflict resumes.

[10] Mr Petris submitted that the “very reason that the family escaped Sri Lanka does not form a logical basis for stating that there would be no risk to the [plaintiff] if she now returns to Sri Lanka”.

The Authority’s decision

[11] As earlier noted, the Authority documented the key issues for the plaintiffs and the history of their citizenship in Sri Lanka in detail in his judgment. No issue was taken with the accuracy or the extent to which these details are recorded by him.

[12] Having recorded the history and the issues, the Authority then stated the test for determining whether a person was a refugee, as contained in article 1A(2) of the Refugee Convention, and stated the principle issues as:

[13] The Authority then carefully assessed the plaintiffs’ case and asked himself the following question:

[14] The Authority then considered and weighed all of the available information about the plaintiffs’ situation against two scenarios postulated by Mr Petris on their behalf. He found no real chance of persecution of either plaintiff on the basis of the information available, and his reasons for this finding were supported by an analysis of the current information about the situation in Sri Lanka. Specifically the Authority found in relation to the plaintiffs and their position if they returned to Sri Lanka as follows:

At this point in time, with the cease-fire continuing, given the lack of profile of the two appellants with both the Sri Lanka authorities and the LTTE, the limited recruitment of the LTTE (and then mainly children and in the east) reported, and the substantial return to normality in the north of Sri Lanka, there is not a real chance of persecution of either appellant by the Sri Lankan authorities or the LTTE, if the appellants return to the Jaffna Province.

If the cease-fire collapses and the conflict resumes, the appellant’s mother nevertheless has no profile as someone of interest to the authorities or LTTE. Factors that led to an assault on her in the past (sons detained for questioning) have fallen away at this point in time. She was never targeted by the LTTE, and there is no reason why this should change. There is no real reason chance of the appellant’s mother being persecuted by either the Sri Lankan authorities or the LTTE if she returns to the Jaffna Province, even if the cease-fire collapses and the conflict resumes. In addition, if the appellant’s mother went to Colombo she could avoid the random dangers and hardships of being in a potential zone of conflict in the north. This option would of course be more feasible if the appellant (who has a good education and computer training) establishes herself in Colombo.

The position of the appellant, if the cease-fire collapses, requires separate consideration from her mother, in the light of counsel’s submission that she faces forced recruitment to the LTTE in the north, and that even if she goes to Colombo there would be some danger in this regard as she is a young Tamil from the north.

Prior to the cease-fire there was a higher risk of forced recruitment by the LTTE in the north, where government control was tenuous or there was LTTE control, than in Colombo or the south of the country. The danger is that this risk would return if the cease-fire collapses. The question is how this would impact on the appellant if she returns to the Jaffna Province. In assessing this and coming to a conclusion, it is appropriate to reiterate how the risk impacted on her in the past. The appellant’s only assistance to the LTTE, was helping her sister to provide meals for the LTTE in 1991. She refused to continue with this assistance after her sister died in 1991 and no action was taken against her. The appellant successfully resisted recruitment by the LTTE between 1991 and 1996 when she went to India, and again no action was taken against her. Considering this, the Authority has every confidence that the appellant would again be able to evade recruitment by the LTTE in the north, if the cease-fire collapsed. The Authority does not consider there is a real chance of persecution of the appellant by forced recruitment to the LTTE, if the appellant returns to the Jaffna Province and the cease-fire collapses and conflict resumes.

…

It is again appropriate to retiterate the appellant’s position vis a vis the authorities in the past, and how it will impact on her now, if the cease-fire collapses and conflict resumes. The SLA questioning of her and her deceased sister and brother U (in 1995), is now historic. As indicated above, her only siblings still in Sri Lanka have no known profile with either the authorities or LTTE, and any activities by her other siblings are historic and those siblings have been out of the country for a considerable time now. There is no real possibility of harassment or persecution because of her siblings. The appellant had no past profile with the Sri Lankan government. Furthermore as the appellant has been away from Sri Lanka and LTTE controlled areas in Sri Lanka for a number of years, this would further decrease any possible interest in her now. It is further noted in any event, that in the past before the cease-fire, such interest generally focuses on young Tamils from the north and particularly young males, and especially those with scars and without documentation, because the authorities regarded them as being most likely to be LTTE military cadres, coming from LTTE areas in the north, to carry out actions against the government. Despite the appellant’s birth in X, relative youth and coming originally from the north, there is nothing in her personal profile that would single her out for persecution by the authorities. There is no real chance of persecution by the authorities of the appellant in either the north or in Colombo. Although security checks might be resumed, these would amount to no more than inconvenience, or, at most, harassment, for the appellant. For further amplification of these points, see for example Refugee Appeal No 73008/01 (2 September 2002) and Refugee Appeal No 74466/02 (4 April 2003).

[15] Of pivotal importance was a further finding of the Authority that both plaintiffs hold current Sri Lankan passports, and that Sri Lankan information indicates they would have no difficulties re-entering Sri Lanka; and the further information that returnees and rejected asylum seekers have experienced no difficulty in re-entering Sri Lanka since December 2001. Further confirmation of this is the advice, earlier noted by the Authority, that the plaintiffs themselves encountered no difficulty in obtaining their Sri Lankan passports when they applied for those from India (in 1999) at the time they were planning to come to New Zealand with their father/husband.

Discussion: first ground of review

[16] It is impossible to find that the Authority made any error of law when he applied the “real chance” test as set out in article 1A(2) of the Refugee Convention, and as interpreted and applied in the New Zealand and Australian jurisprudence. It is well settled that the “real chance” test for determining refugee status is not to be calculated on a percentage chance of persecution occurring but on the basis that such a chance is substantial and not simply remote or speculative. On that issue the High Court of Australia in Guo observed that “no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.” (at p577)

[17] The test is thus an objective one, and whilst the facts need not be proved to a balance of probability standard, it is the responsibility of any person claiming refugee status to establish the elements of a claim for refugee status. The High Court of Australia in Guo was clear that in order to determine whether a real chance of persecution exists, the tribunal must first form an opinion as to what is likely to happen. This necessitates an assessment of past events to determine the probability of their recurrence. At p579, 17-21 the High Court said:

[18] To summarise therefore, assessment of a real risk of persecution clearly requires information about the history of the person claiming refugee status and alleging past persecution; information about their profile or likely profile with the authorities from whom they seek refuge; and evaluation of the current political situation in the country to which they say they are unable to return. Such assessment must be made bearing in mind that the risk to be identified is the risk of “persecution”, and not some other risk or danger. The term “persecution” is not, as the High Court of Australia noted in Chan v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379 at 429, expressly defined but its meaning is obvious:

[19] Although the plaintiffs have professed fear that the plaintiff daughter will be pressed in to joining the LTTE if they return to live in Jaffna Province; and that the mother will be shot and killed if they return, those subjective fears are not objectively justified on an assessment of their history with the LTTE. Nor can there be any objective belief that they will experience difficulties with the SLA and authorities if they return to Sri Lanka. That view is supported by the fact that both plaintiffs have already passed a Sri Lankan Government security check when issued with their Sri Lankan passports in 1999. There is no reason to believe that either woman has any profile with Sri Lankan authorities or the LTTE, and no reason arises as to why they should assume such a profile should the political situation change and the current cease-fire collapse. The plaintiff daughter has already successfully resisted recruitment by the LTTE in Jaffna during the period 1991-1996, and there is no reason to believe that she would not again successfully resist recruitment, should the cease-fire collapse.

[20] All of these plaintiffs arguments are in any case predicated on the assumption that they must return to live in Sri Lanka (either Jaffna Province or Colombo) if they are not granted refugee status in New Zealand. There is however no indication that this will be their likely course of action. They did not come to New Zealand direct from Sri Lanka, but via India where they had lived for four years. Although I accept that a refugee may arrive via other another or member countries of the Convention and be entitled to refugee status the assessment being made against the situation in the country of nationality the plaintiffs’ decision to come to New Zealand was, really as I apprehend it, in the nature of an immigration decision. Once their passports were issued by the Sri Lankan Government they could equally have decided to emigrate to Canada, Norway, Germany or England where the other members of the immediate family now reside.

[21] The plaintiffs’ case is distinguishable from the facts in Paramanthan v Minister of Immigration and Multicultural Affairs (1998) 160 ALR 24 (Full Ct FCA). That case arose from the situation in Sri Lanka up to 1997-1998 before the present cease-fire and concerned applicants for refugee status who had been detained and seriously mistreated in custody on several occasions. They were applicants who had a profile with the authorities and further detentions and mistreatment could not be ruled out if they returned to Sri Lanka.

[22] The submission that the Tribunal should have considered the possibility that his findings were inaccurate before reaching his decision, was an issue dealt with by the High Court of Australia in Guo. In the Federal Court Einfeld J had criticised the Refugee Review Tribunal for its reluctance or even refusal to speculate about Mr Guo’s situation and for not giving consideration “to the possibility that any of its findings were inaccurate” (Guo Wei Rong v Minister for Immigration and Ethnic Affairs and Anor (1996) 135 ALR 421 at 446/25-40).

[23] The High Court of Australia did not, however, agree with Einfeld J’s approach in this regard and held:

[24] In summary, I am satisfied that in the plaintiffs’ case the Authority carefully weighed all relevant material before him and made sound findings of fact, as well as credibility, before he engaged in a consideration of whether the plaintiffs’ subjective fear of persecution in Sri Lanka was well-founded. Having found, on the basis of the information before him, that there was no substantial chance of risk to either plaintiff from the LTTE or SLA, the Authority could only reasonably conclude that their fear was not objectively justified.

[25] As earlier noted this ground of review essentially mirrors the first ground of review but with a narrow focus on para 54 (which is reproduced in para [8] above). In my view there is no logical inconsistency between the finding in para 54 that the Authority has every confidence that the plaintiff daughter would again be able to evade recruitment by the LTTE enforced if the cease-fire collapsed and the reason why the plaintiffs’ family moved to India in 1996 (as set out in para 15 of the decision). There is no reason to suppose that enforced recruitment would be any more difficult to resist in the future than it has been in the past, and the past must be the measure by which any degree of risk in the future is to be assessed. It is clear that the plaintiffs and their father/husband left Sri Lanka in 1996 and went to India for a variety of reasons, including the desire to avoid recruitment but that aspect does not render the Authority’s reasoning illogical or unsound.

Solicitors for the plaintiffs: JS Petris (Wellington)
Solicitors for the defendants: Crown Law Office (Wellington)