Applicant VFAH v MIMIA

[2005] HCATrans 156

[2005] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M156 of 2004

B e t w e e n -

APPLICANT VFAH

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2005, AT 11.56 AM

Copyright in the High Court of Australia

MR J.R. HAMILTON:   If the Court pleases, I appear for the applicant.  (instructed by Koenig & Simons)

MR C.J. HORAN:   If the Court pleases, I appear for the respondent.  (instructed by Clayton Utz)

KIRBY J:   Yes, Mr Hamilton.  This is the case of the Roman Catholic Burgher who was a member of the United National Party.

MR HAMILTON:   Yes, your Honour.  There are two issues.  One went to discrimination and employment, such as to amount to persecution.  That is very much the lesser one I address, which is really the central issue, and that is persecution suffered by supported of UNP and PA – the two main parties in Sri Lanka – leading up to and shortly after election time. 

There was a finding.  The Tribunal found, without making any reference to a material question of fact, it was found that the police force, et cetera, in Sri Lanka is efficient.  There was no evidence that it is not efficient, but the applicant’s claim is she has been persecuted and the applicant and his wife – well, the applicant wife particularly, was found to be honest and straightforward.  She said that when she complained of the persecution that occurred to her as a supporter for her political party, the police said nothing.

There was a system there with which it could be dealt.  They may have even been very efficient, but they were not able to do anything without positive identification.  That, basically – there were two elections, 1996 and 2000, and people came around and threatened her.  There is a system to deal with it.  This is where the Tribunal and the courts have found “There is a system in the country for dealing with this, therefore you cannot justifiably claim persecution or want of government interest”.  There may be that, but the applicant says if – in this country and many others, crimes are committed by people who are unidentified, and yet it does not stop the police making every effort and very often finding the perpetrators. 

It would appear in Sri Lanka, given the number of police, possibly, to the number of people who engage in this activity, that they are not able to do anything about it.

KIRBY J:   Yes, but these are all questions of fact, are they not, for assessment by the Tribunal?  It does not sound like the sort of case the High Court, in the limited jurisdiction of judicial review, would become involved in.  This is just a matter of assessing the riskiness of the situation in Sri Lanka.  That is something which is committed by law to the Tribunal, based substantially on country information and its assessment of the applicant.  It would not be right, it probably would not be lawful and we just do not have the time to become a sort of super trial court in cases of this kind, important though they are.  How do you lift it up into the High Court of Australia?

MR HAMILTON:   Your Honour, a decision of this Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 has been interpreted by his Honour and it is submitted, with respect, the decision has been interpreted incorrectly.  At page 39 of the application book his Honour finds:

Thus, even if the appellant was able to demonstrate that despite the protection of the authorities she nonetheless faced a “real chance” of persecution she could not, in the light of the Tribunal’s finding as to the adequacy of state protection and the majority view in S152/2003I – 

claim she was being persecuted.  The applicant says that what was said by the High Court in S152 – and this is at page 39, line 15:

It was not enough for the first respondent to show that there was a real risk that, if he returned to his country, he might suffer further harm.  He had to show that the harm was persecution –

And yet his Honour has found that even if there is a real chance of persecution, then surely that person is entitled to refugee status.  There has been no evidence referred to whatsoever ‑ ‑ ‑

KIRBY J:   Where do you say that his Honour found that there was a real risk of persecution?

MR HAMILTON:   Your Honour, at page 39 of the application book, line 25:

Thus, even if the appellant was able to demonstrate that despite the protection of the ‑ ‑ ‑

KIRBY J:   Yes, but that is a quote from Respondents S152.  I am talking about this case.  How do you make this law relevant to the circumstances of this case?  What was 152 dealing with?

HAYNE J:   It was the Ukrainian Jehovah’s Witnesses, was it not?

MR HAMILTON:   Yes, your Honour.  It is maybe not on all fours here in that there was an allegation that the authorities either sponsor the violence or do nothing about it.

KIRBY J:   Yes, well, that is a very different factual situation to Sri Lanka.

MR HAMILTON:   Yes.  Your Honour, the absolute nub and centre of the case is that it was always before the Tribunal and the courts that if the applicant or the appellant was not able to identify her aggressors and they did come around at a regular time, around about before elections, then they could not stop happening what happened.  The applicant says if that is the case, she is suffering persecution.  There is no suggestion that the will of Sri Lanka ‑ ‑ ‑

KIRBY J:   I know she says this, but that is a matter then for the assessment of the Tribunal.  To get it into this Court, you have to say there is some error in the application of 152 or there is an error of general legal importance or significance or they have stepped outside their jurisdiction or denied procedural fairness.  None of those elements seem to be visible in this case.

MR HAMILTON:   Your Honour, the applicant certainly says that 152 is not against the applicant.  There is nothing in that decision against the applicant.

KIRBY J:   You are behind the eight ball at the moment.  You have to get something that is for you.

MR HAMILTON:   The finding that there was not a real chance of persecution or that she was not justified in feeling persecution because there was a legal system to which someone could turn – and that is referenced in a number of the decisions.  If there is a system to which people will turn, if people take your complaints seriously, then you cannot claim persecution.  But what the applicant claims is, as referenced in 152, international standards.  That is what is referenced, international standards.  It is said that if a government or the police cannot stop people attacking you, unless you are able to give a positive identification of them, then you are not meeting international standards.

KIRBY J:   Yes, but a different factual conclusion was taken by the Tribunal.  They took the view that the applicant would be adequately protected by the authorities, both police and judicial.

MR HAMILTON:   They found the judicial system and the police system to be efficient but, having made that major finding, they make no reference to it and they certainly did not find against her statement that she could not do anything without identifying her assailants.

KIRBY J:   Yes.  Is there anything else, Mr Hamilton?

MR HAMILTON:   I am sorry, your Honour, there was just the employment issue.  There was also a finding that the husband, in particular, although he had lost his job, it was not for a reason of ethnicity and therefore was not a Convention reason.  It is submitted that it was quite clear in the documentation that it was claimed to be as a result of the political matter, so it was not an ethnicity thing at all.

KIRBY J:   Is this a case where the applicant wife is making the application on behalf of the husband and, I think, a child, is that not correct?

MR HAMILTON:   Yes, it is, your Honour.

KIRBY J:   So their entitlements ride on the success or failure of the applicant wife’s application?

MR HAMILTON:   Your Honour, to the extent that the husband is unable to work, that affects the family as well.

KIRBY J:   Yes, but in this Court we only have, I think, the applicant wife before us, do we not?

MR HAMILTON:   Yes.

KIRBY J:   We do not have to deal separately with the husband and children?  They ride on the coat‑tails, as often happens.  It usually is riding on the coat‑tails of the husband or male member of the family.

MR HAMILTON:   Your Honour, I notice, at page 3 of the application book, the background.  The Tribunal states in the very first line:

The applicants are husband and wife and their two children.

KIRBY J:   Yes, but the matter has been argued.  As you see, on page 3 it says, “The applicant wife confirmed”, “the applicant wife”, “the applicant wife”.  So it seems to have been litigated on the basis that the applicant wife would carry the – there is a mention of the applicant husband on page 4, but the fate of the case would depend on the applicant wife.  Is that correct?

MR HAMILTON:   Your Honour, it could be argued that they are intertwined, because there is talk about the child ‑ ‑ ‑

HAYNE J:   At page 21 paragraph 1 of the Federal Magistrates Court reasons, at about line 23:

Only the applicant wife has made specific claims under the Refugees Convention and for these reasons she has been referred to as the applicant –

Now, is that right?

MR HAMILTON:   Your Honour, I notice that paragraph begins with the statement:

The applicants are husband, wife –

She has told her story and also stated what happened to her husband and her child.  She would say that what affects the husband and child would affect her as well.

KIRBY J:   That is usually the case, but it is usually the husband or the male adult who brings the claim and then the female and children rely upon it.  It may be in this case that is simply reversed in role, but ‑ ‑ ‑

MR HAMILTON:   It is, your Honour.  It is, I believe.

KIRBY J:   Yes, very well.  Thank you.

MR HAMILTON:   Thank you, your Honour.

KIRBY J:   Mr Horan, can you help us on this point concerning the husband and wife?

MR HORAN:   The husband was what might described as a secondary applicant for the protection visa.

KIRBY J:   So it is the same as in most cases, as, for example, the last case, where it was a husband who was a Jordanian national applying for a wife and two children.  Here it is the wife who is making the running.

MR HORAN:   Yes, on behalf of the ‑ ‑ ‑

KIRBY J:   What was the meaning of that point that Justice Hayne drew attention to, the Federal Magistrate saying that the wife was the only one who made specific claims under the Convention?

MR HORAN:   That is a reference to the distinction between a primary applicant, who, on the forms for submitting protection visa applications, makes specific claims as a refugee under the Convention and secondary applicants, who are entitled to visas on the basis that they are members of the family unit of the primary applicant.

KIRBY J:   But do we have to make a differential consideration of the various applicants?

MR HORAN:   No, your Honour.  In this case there were claims made, it is quite clear, based upon, in part, experiences that the husband had in the past but they were, in a strict sense, relied upon as demonstrating a real chance of persecution on the part of the applicant wife.

HAYNE J:   But once judicial power is exercised at page 15 of the application book, the only application made for the engagement of judicial power seems to be an application on behalf of the wife focusing on the claims which she made.  The consequence would have been, assumedly, if she had succeeded, that there may then have been available dependant claims that would have fallen into place.  But so far as the courts are concerned it is only the applicant wife, is it not?

MR HAMILTON:   Yes, although subject to the qualification that the applicant wife made concerning the treatment of her husband, which she relied on as demonstrating, for example, discrimination against persons of her ethnicity.

KIRBY J:   Yes, very well.  We do not need any further assistance, Mr Horan.

MR HORAN:   If the Court pleases.

KIRBY J:   Is there anything you want to say in reply to that, Mr Hamilton. 

MR HAMILTON:   No, your Honour.

KIRBY J:   The applicant, a national of Sri Lanka, seeks special leave to appeal against the refusal of a protection visa.  She failed before the delegate of the Minister, the Refugee Review Tribunal, the Federal Magistrates Court and, on appeal, the Federal Court of Australia.  In the Federal Court the appellate powers of that court were exercised by Justice Merkel.

The applicant’s case also concerned her husband and two children, all of whom arrived in Australia in September 2000.  However, the applicant before this Court is the wife and mother. 

Before the Tribunal the applicant’s case was that she had a well‑founded fear of persecution if returned to Sri Lanka on the basis that she was a member of the United National Party who had suffered threats from members of opposing political groups, was a person of Burgher ethnicity and a Christian Roman Catholic.

The Tribunal rejected these claims on their merits.  It did so in the exercise of its jurisdiction.  The applicant criticises various findings such as the Tribunal’s conclusion that the applicant would be reasonably protected by the police and by judicial and other services in Sri Lanka.

There was an associated claim, ventured by the applicant on behalf of her husband, that he had suffered discrimination in employment for a Convention reason.

None of these suggested errors rises to one that requires the intervention of this Court.  We see no error in the treatment of them by Justice Merkel in the Federal Court.  There are no reasonable prospects of success were special leave granted.  Special leave must therefore be refused.  The applicant must pay the Minister’s costs.

Again, we express our thanks to Mr Hamilton for his assistance.

AT 12.12 PM THE MATTER WAS CONCLUDED