Ratnayake, Palitha v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 482

Procedural Posture

Application for Review of a Refugee Review Tribunal Decision Affirming Refusal to Grant a Protection Visa / Federal Court Judgment on the Application for Review

Legal Issues

1. 1 ['Whether the Tribunal erred in applying the real chance test for well-founded fear of persecution.' 'Whether the Tribunal needed to be satisfied to a high degree before making findings adverse to the applicant because of the seriousness of the consequences.' 'Whether the Tribunal undertook the required speculation about future persecution.' 'Whether persons who have accumulated wealth through corrupt means, or their associates, constituted a particular social group.' "Whether there was no evidence or other material to justify the Tribunal's findings about the JVP and potential punishment for criminal commercial conduct." 'Whether an alleged failure to act according to substantial justice under s 420(2)(b) of the Migration Act 1958 was a ground of review.']

Ratio Decidendi

The application failed because the Tribunal applied the correct real chance test, undertook the required assessment of future risk, and had evidence on which it could find that the JVP no longer posed a real chance of persecution to the applicant. The proposed group of persons who became wealthy through corruption and were targeted by the JVP, or their associates, was too broad and lacking in cohesion or homogeneity to be a particular social group. The applicant's commercial conduct and any lawful punishment for it did not establish persecution for a Convention reason. The asserted no evidence and s 420(2)(b) grounds did not provide a basis for review under s 476 of the Migration Act 1958.

Court Disposition

Application dismissed with costs.

Orders

• ['The application will be dismissed.' "The applicant pay the respondent's costs of the application including reserved costs."]