Case: Minister for Immigration &amp; Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1997) 93 FCR 220
Outcome: considered
A finding that a past event occurred is not in the same category as an assessment of the likelihood of a future event occurring. It is the latter that requires an assessment of real chance. An assessment of the likelihood that the applicant will be persecuted for a Convention reason ordinarily involves making findings about whether all or part of the applicant's account of past events should be accepted ( Minister for Immigration &amp; Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1997) 93 FCR 220 per Sackville J at [34]). The past event either did or did not occur. 46 In Rajalingam Sackville J, with whom North J agreed, discussed the various observations concerning the obligation of the Tribunal to consider, in its assessment of well-founded fear as discussed by the High Court in Guo and Wu Shan Liang , whether there is "real doubt" that findings of fact as to past events were correct. At [60] Sackville J distilled those observations into the principle that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. If the Tribunal makes an adverse finding in relation to a material claim of an appellant but is unable to make the claim with confidence, it must proceed to assess the claim on the basis that the claim may possibly be true. There are, however, limits to the application of this principle, known as the "what if I am wrong" test. This does not preclude the Tribunal making a finding with certainty. It is where the Tribunal is uncertain as to whether an alleged event occurred or finds that the event might have occurred that it should, in considering the ultimate question, take into account the possibility that it did take place (at [62]). 47 That is not to say that the Tribunal must express findings that make explicit its degree of conviction or confidence that the findings are correct ( Rajalingam at [64]). The assessment of whether the Tribunal had real doubts is to be determined by reference to the Tribunal's reasons as a whole (at [67]): Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal's] own findings to be pursued. A 'fair reading' of the reasons incorporates the principle that the [Tribunal's] reasons should receive a 'beneficial construction' and should not be 'construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal's] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution. [emphasis added] 48 Where the reasons did not suggest that the Tribunal had any real doubt in its findings of fact, such as where it states in clear terms that it did not accept the applicant's assertions, the Tribunal is not obliged to consider the applicant's chances of persecution by references to possibilities that it did not accept ( Rajalingam at [68]). Where the Tribunal is unsure as to whether events occurred, as understood from its reasons, it is obliged to consider the possibility that its findings of fact might not have been correct. The Tribunal then considers the chance of an applicant's persecution in the future on a standard less than the balance of probabilities ( Kalala v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1594 ; (2001) 114 FCR 212 at [25] per North and Madgwick JJ). In Kalala conclusions reached by the Tribunal as to whether certain events did or did not take place were attended by significant doubt. At [6] [7] North and Madgwick JJ stated that: There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded. 53 An integral part of the process of determining whether there is a real chance of persecution is the formation of conclusions on past events ( Guo at 575). The Tribunal is not required to determine the veracity of past events as a mere possibility. Rather, the Tribunal is required to assess the material before it and to reach a conclusion on the occurrence of those events to see if they provide a basis, a foundation, for a fear of persecution. Where the Tribunal expresses no doubt as to its findings of fact, where the Tribunal simply does not accept that certain events took place, the Tribunal is not obliged to consider the chance of the fact being true or the event having occurred ( Rajalingam ; Yakubu v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 57 at [50] ).