Jansz v Minister for Immigration and Multicultural Affairs

[2000] FCA 958

FEDERAL COURT OF AUSTRALIA

Jansz v Minister for Immigration & Multicultural Affairs [2000] FCA 958

MIGRATION – refugees – whether decision of Refugee Review Tribunal complied with s 430(1) - whether Tribunal erred in law in its construction of “persecution”

Convention Relating to the Status of Refugees 1951 as amended by Protocol Relating to the Status of Refugees 1967 – Art 1A(2)

Migration Act 1958 (Cth) s 430(1)

JAN RALSTON JANSZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS - V 721 of 1999

RUSSEL MAXWELL JANSZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS – V 722 of 1999

BRIAN MAXWELL JANSZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS – V 723 of 1999

JUDGE:         MERKEL J
PLACE:         MELBOURNE
DATE:           17 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 721, 722 and 723 of 1999

BETWEEN:	JAN RALSTON JANSZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
AND BETWEEN:	RUSSEL MAXWELL JANSZ  APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS  RESPONDENT
AND BETWEEN:	BRIAN MAXWELL JANSZ  APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS  RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	17 JULY 2000
WHERE MADE:	MELBOURNE

The Court orders that each of the applications be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 721, 722 and 723 of 1999

BETWEEN:	JAN RALSTON JANSZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
AND BETWEEN:	RUSSEL MAXWELL JANSZ  APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS  RESPONDENT
AND BETWEEN:	BRIAN MAXWELL JANSZ  APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS  RESPONDENT

REASONS FOR JUDGMENT

1. The Court has three applications before it for the review of decisions made by the Refugee Review Tribunal (“the RRT”) in relation to four members of the same family.  The members of the family concerned are Jan Ralston Jansz, his brother, Russell Maxwell Jansz and their parents, Brian Maxwell Jansz and Charmaine Esme Jansz.  Each family member made a claim to be entitled to a protection visa on the ground that they were refugees as defined in Art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”).

2. It was contended on behalf of the family members that they had a well founded fear of being persecuted for reasons of political opinion if they returned to their country of nationality, namely Sri Lanka.

3. It was common ground that the separate claims for refugee status were linked and, ultimately, depended upon Jan Jansz succeeding in his claim for refugee status. Accordingly, the primary focus of the RRT’s decisions in this matter related to the claim of Jan Jansz and, likewise, the primary focus of the application for review of the decision of the RRT under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) was also upon Jan Jansz’s claim. If the review of the RRT’s decision on that claim failed, it was common ground that all of the applications for review must be dismissed.

4. The RRT formed the view that Jan Jansz was a truthful and reliable witness in relation to past events and, accordingly, it accepted his evidence as to the factual circumstances that led to his departure from Sri Lanka.  Those circumstances may be summarised as follows.

5. The members of the Jansz family are Burghers, the Christian descendants of Portuguese and Dutch colonists of Sri Lanka.  Jan Jansz was employed in the travel industry in Sri Lanka and, in that capacity, from time to time arranged accommodation and travel plans for Tamils.  Jan Jansz’s brother-in-law, Wesley Daniels, was a Tamil who had referred Tamil clients to Jan Jansz.  One of those clients, for whom Jan Jansz arranged international travel, was detained at the Colombo airport on suspicion of being involved with the LTTE.

6. The authorities approached Jan Jansz, as the ticketing agent, and required him to explain his involvement with the particular person.  Jan Jansz, fearing involving his brother-in-law and, through him, his sister, gave a false statement to the authorities saying that the customer had come off the street. When Jan Jansz spoke to his brother-in-law about what had transpired his brother-in-law would not give him a “straight” answer, saying only that the traveller in question was from Jaffna and an old friend.  Members of the police continued to visit Jan Jansz and his parents in respect of the matter over the ensuring months.  The police suggested that Jan Jansz was involved in smuggling people out of Jaffna, and also accused him of arranging travel for other Tamils, including Tamils associated with the LTTE.  Although those inquiries did not lead to any detention or violence against Jan Jansz, or against members of his family eventually Jan Jansz, Russell Jansz, Brian Jansz and Charmaine Jansz fled to Australia on the basis that they feared that they would be subjected to continuing harassment by the authorities, leading to physical harm as a result of a suspected association with the LTTE.

7. Although Wesley Daniels had stopped referring clients to him, Jan Jansz said that he was fearful that upon his return to Sri Lanka he would be made to expose his brother-in-law to the police.  In particular, Jan Jansz said, and the RRT accepted, that if he returned to Sri Lanka he believed he would tell the police the truth about the Tamil apprehended at the airport having been referred by Wesley Daniels.  He was concerned that could lead to harm to his sister and brother-in-law as he believed it was likely that his brother-in-law would be treated as a member of the LTTE because he is a Tamil from the north.

8. The claim for refugee status made by members of the family was put on the basis that they had a well-founded fear of political persecution because an “opinion” of being LTTE sympathisers or associates would be imputed to them as a result of Jan Jansz’s involvement with Tamil travellers and, in particular, the Tamil who had been apprehended at the airport.  It was contended on behalf of the members of the family that if Jan Jansz was required to disclose his brother-in-law’s role in referring the apprehended Tamil to Jan Jansz, that would provide a Tamil link with the family.  It was further contended that the security forces would use this link against Wesley Daniels and the Jansz family in a manner that would be likely to result in harm, including in torture.

9. The RRT, after considering in some detail country information involving Sri Lanka, made the following two findings.  First, Jan Jansz’s fear upon his return to Sri Lanka was that, upon him telling the truth to the police about Wesley Daniels in relation to the Tamil customer apprehended at the airport, there would be adverse consequences for his brother-in-law and, indirectly, his sister.  Second, Jan Jansz’s fear was that Wesley Daniels might be apprehended by the security forces and treated harshly because he is a Tamil originally from Jaffna, and was involved with the referral of the customer to Jan Jansz.  Those two findings led the RRT to form the “strong” impression that, while Jan Jansz had expressed fears that the police might use force to extract the whole truth from him, such abuse would be unlikely to occur because Jan Jansz would tell the truth on his return to Sri Lanka, if asked to do so by the police.  Thus, the RRT did not accept that, at the subjective level, Jan Jansz had a fear of political persecution against himself.  Rather, it concluded that he had a fear of political persecution against his brother-in-law and, through him, his sister.

10. The RRT also stated that, even if Jan Jansz had a subjective fear of political persecution against himself, there was not a real chance of such persecution happening in the foreseeable future.  Once again, on the assumption put forward by Jan Jansz that he would have no choice but to tell the police the truth regarding the Tamil apprehended at the airport, the RRT formed the view that, after he told the truth, he would be of little interest to the police.  Rather, the police would pursue their inquiries with Wesley Daniels.

11. A number of factors led the RRT to form the view that Jan Jansz would be of little interest to the police upon him telling them of Wesley Daniel’s involvement in referring the Tamil to him.  Although the RRT accepted that the police had accused Jan Jansz of being an LTTE sympathiser and a people smuggler, it formed the view that the accusations were part of police methodology in the circumstances of this particular case, rather than deriving from a genuine suspicion that Jan Jansz is an LTTE sympathiser.  In that regard, the RRT relied upon the fact that Jan Jansz was not detained or physically harmed during any of the police visits, and that he and members of his family were permitted by the authorities to depart from Sri Lanka without any difficulty.  The RRT also stated that, even if there was a genuine allegation that Jan Jansz had been involved in people smuggling, the country information did not suggest that that kind of offence was likely to lead to adverse consequences amounting to persecution.  In particular, the RRT said that persons involved in that general activity are “certainly” not treated in the same way as LTTE sympathisers.  Thus, even if the police had some interest in Jan Jansz on his return, the RRT stated it would be because of his involvement in people smuggling, rather than as an LTTE sympathiser.  Consequently, he would not face the abuse of his human rights that many LTTE sympathisers experience with the authorities.

12. The RRT also relied on the fact that Jan Jansz’s Burgher background made it even less likely that the authorities would impute a connection between him, as a Burgher, and the LTTE, absent any evidence implicating Jan Jansz with the LTTE.  In arriving at that conclusion the RRT drew upon a substantial body of material that suggested that, although a Burgher who was suspected of assisting the LTTE would be treated in the same way as any other suspect, it was rare for that to occur.  The RRT also noted that Burghers are not a particular group in which the government has a political interest.

13. The RRT also speculated on the possibility of Jan Jansz not telling the truth to the police upon his return to Sri Lanka.  However, it concluded that in that event there was no real chance that the police would treat him as an LTTE sympathiser, rather than as a suspected people smuggler.  Thus, if there was any harassment it would be by reason of Jan Jansz’s connection to a “pervasive” unlawful trade, rather than by reason of any perceived political affiliation to the LTTE.

14. The RRT expressed its ultimate conclusion as follows:

    “I therefore conclude that Jan Jansz does not hold a subjective fear that he will be persecuted if he returns to Sri Lanka: he fears that his brother in law may be persecuted if he tells the truth to the police.  I further find that, if Jan Jansz did hold a genuine subjective fear of persecution, there is no real chance that he would face persecution in the foreseeable future, and that in any case, the persecution he says he fears would not be persecution for a convention reason but prosecution for breach of a law of general application regulating the movement of Sri Lankan[s] within and out of the country.”

15. Counsel for Jan Jansz challenged the decision of the RRT on a number of grounds. First, it was contended that the decision did not comply with s 430(1) of the Act. The submission was difficult to follow. It appeared to be contended that the RRT had failed to describe the reasoning that led it to consider the claim on the basis that Jan Jansz was a “people smuggler”, rather than a person who was believed to be involved with arranging travel for LTTE members. Thus, it seems that it was being contended that the RRT erred by referring to matters (people smuggling) that were not material to the claim, rather than to matters that were (arranging LTTE travel).

16. In my view the submission is without substance.  The primary basis for the failure of the claims in the present case was that the Tribunal found that Jan Jansz did not have a fear of political persecution against himself. Rather, the RRT concluded that he feared political persecution against his brother-in-law and through him, his sister. It was only on the alternative basis that, even if that view were wrong, the only likely and justifiable fear that may be held by Jan Jansz was that he was involved with people smuggling, rather than that he was an LTTE sympathiser. Thus, the RRT stated that any fear of political persecution would not be well founded as there was no basis for it. Whatever may be said about the process by which the RRT arrived at its conclusions, in my view it is clear that its reasons complied with s 430(1).

17. The second ground of review was said to be error of law by the RRT in failing to properly understand and apply the concept of “persecution”.  Once again, the point is without any substance or merit.  No criticism was made of the RRT’s statement in the earlier part of its decision setting out in general terms, its understanding of persecution.  Further, I have no reason to doubt that the RRT applied its understanding of that term in its decision.  I have not been persuaded that the RRT was in error in doing so.  In any event, the contention fails to recognise that the present application did not succeed because the applicant failed on the facts, rather than as a result of any error of law.  It was inevitable that Jan Jansz’s claim would fail once the RRT concluded that he did not have a subjective fear of political persecution concerning what may happen to him on his return but, rather, feared what would happen to his brother-in-law, and therefore his sister.

18. It was next contended that the RRT made a finding in respect of a particular fact, namely that the police were only investigating Jan Jansz for “people smuggling”, and that that fact did not exist.  The point must fail at the outset as the RRT accepted that Jan Jansz was being investigated for the purpose of determining whether he was an LTTE sympathiser and also for people smuggling.  That finding was based upon an acceptance of the evidence given by Jan Jansz as to past events.

19. In the course of submissions counsel refined the argument by suggesting that the particular fact found was that the authorities would only be interested in Jan Jansz for people smuggling on his return.  However, the finding criticised by counsel was not a finding of fact but, rather, was part of the speculative process, in which the RRT is required to engage, in order to determine whether a fear of political persecution is well founded.  In that regard, for reasons explained by the RRT, it concluded that, if there was to be any interest by the authorities in Jan Jansz on his return, it would relate to people smuggling rather than to being a sympathiser of the LTTE.

20. It was also submitted that, in substance, the Tribunal erred in not carrying out its speculative function in order to determine whether there was a real chance of political persecution of members of the family if they returned to Sri Lanka. Put another way, it seemed to be suggested that the RRT had not properly undertaken the “real chance” test as enunciated by the authorities. In my view there is no basis for that contention. In reality what was really being suggested, implicitly if not explicitly in the submissions, is that the RRT had placed too much weight on certain factors and too little weight on other factors. However, that is precisely the fact finding function accorded to the RRT under the Act. The challenge of counsel for the applicants in the present case is to the manner in which the RRT engaged in that function. Such a challenge amounts to a form of merits review, which is not a permissible ground of review under Pt 8 of the Act.

21. Before departing from the matter it is appropriate that I indicate that I have both sympathy for, and an understanding of, the fears professed to be held by members of the Jansz family upon their return to Sri Lanka. However, it needs to be emphasised that it is only a fear based upon a Convention ground that is able to be recognised as giving rise to an entitlement to refugee status. For the reasons, which were fully explained by it in the present case, the RRT was of the view that the members of the Jansz family had failed to establish a well founded fear of persecution on a Convention ground should they return to Sri Lanka. As that conclusion was reached without error of law or any other form of error reviewable under Pt 8 of the Act, each of the applications must be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel .

Associate:

Dated:             17 July 2000

Counsel for the Applicant:	Mr TE Wraight
Solicitor for the Applicant:	Ravi James and Associates
Counsel for the Respondent:	Mr CG Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 July 2000
Date of Judgment:	17 July 2000