Kelly, Jean v Minister for Immigration and Multicultural Affairs

[1998] FCA 1623

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1023 of 1998

BETWEEN:	JEAN KELLY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		HELY J
DATE OF ORDER:		9 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 1023 of 1998

BETWEEN:	JEAN KELLY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	9 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HELY J:       The applicant is a citizen of Northern Ireland.  She was born there, and raised in a Catholic family.  In 1986, when she was about 25 years of age, she met a man with whom she formed a relationship.  Unbeknown to the applicant, her boyfriend was an active member of the IRA.  Refugee Review Tribunal (“RRT”) accepted that her boyfriend was an important functionary within that organisation.

In 1987, whilst the applicant was alone in the flat in which she lived, she was abducted by masked men.  The abductors came from one of the Protestant militia groups, and the reason for the abduction was related to the applicant having as her boyfriend an important functionary within the IRA.  RRT accepted that the abduction was a terrifying experience for the applicant, and that “the terror of that experience has stayed with her”.

RRT also accepted that because of her boyfriend’s status, and/or because of her Catholicism, she was harassed (but not seriously enough to amount to persecution) by police and army authorities in Northern Ireland during the period 1986-87.

In October 1987 the applicant travelled to the United States.  She remained there until mid-1993 when she returned to Northern Ireland for a short visit to see her sister who had been involved in a bad accident.  She returned to the United States on a passport apparently issued in Dublin.
About three months after her return to the United States, the applicant was deported to Dublin.  She was assisted to travel from Dublin to London by persons who were part of an IRA support network.  After about three months the applicant fled from London to Israel.  She claimed to have done so because of an apprehension that the Protestant militia had broken into her flat.

RRT said that it did not have enough evidence on which to make a finding in relation to the men who were said to have visited the applicant’s flat in London causing her to flee to Israel, but it did accept that it was a subjective fear on the part of the applicant which caused her to act in the way in which she did.

The applicant told the RRT that she wanted to find a country where she could “settle down” – somewhere very distant from Northern Ireland – and for this reason she chose Australia.  She came to Australia on 9 February 1996 knowing that she had a six month visa.  On 17 July 1998 she lodged an application for a protection visa.  On 10 September 1998 RRT affirmed the decision of the Minister’s delegate not to grant a protection visa. 

RRT accepted that the applicant had a subjective fear of persecution, derived from her abduction in 1987, which was in turn associated with her relationship with her boyfriend.  Another contributing factor may have been her membership of Sinn Fein.

Nonetheless it found that substantial changes in circumstances had removed the objective reasons that support this fear.  Her boyfriend is now dead; she has not been a member of Sinn Fein since 1986; apart from a brief visit in 1993 she has been out of Ireland since 1987.  In the intervening period there have been substantial changes in the political situation in Northern Ireland, particularly in the last eighteen months such that it can not longer be said that the authorities in Northern Ireland are unwilling or are unable to protect the applicant from the persecution which she fears.

In any event, the applicant does not have to return to Northern Ireland because she is the holder of an EEC passport and as such is entitled to live and to work in any of the member states of the European Union.  She could, for example, settle anywhere in the United Kingdom.

In the result, RRT was not satisfied that the applicant’s fear of persecution for a convention reason is well-founded.  In any event, RRT found that it is reasonable for the applicant to relocate to another place away from the area where she previously experienced harm, and where any chance of future harm would be remote.  The applicant has shown herself capable of living and working in a number of countries in the past, such as the United States of America, Britain, Israel and Australia.  She could also avail herself of the protection of Northern Ireland against the harm that she fears.

Protection visas

Section 36 of the Migration Act 1958 creates a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for it is a non citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Generally speaking, Australia has protection obligations to people who are within the definition of “refugees” as defined in the Convention.

Article 1A(2) of the Convention defines a refugee, as any person who:

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The applicant’s submissions

It was submitted that RRT erred in finding that the applicant’s fear of persecution was not well-founded.  That was submitted to be so, because the use of appropriate extrinsic materials in interpreting Article 1A, permits the interpretation that an individual need only show “good reason” for fearing persecution, rather than prove the existence of a persecutory threat.

The Convention is a humanitarian document.  Its humanitarian character colours the requirement that a fear of persecution for convention reasons genuinely held, must also be well-founded.  Where a fear, which was originally well-founded persists, notwithstanding changes in circumstances, there is nonetheless continuing good reasons for fearing persecution, unless it can be said with certainty that the conditions which gave rise to the well-founded fear of persecution for convention reasons in the first place have entirely evaporated.  That cannot be said of the position in Northern Ireland, because whilst there may be aspirations that peace will eventuate, the evidence before RRT was neither conclusive nor determinative of a permanent cessation of hostilities.

Given the applicant’s psychological condition, it is said to be unreasonable to countenance relocation elsewhere in the European Union.  That is because of the applicant’s “nerves and fear” and her perception that Australia is the only country in which she has been relaxed.  Whilst these may be psychological or mental conditions, are nonetheless real.

Mr Lombard, a migration agent who was given leave to appear for the applicant, recognised that acceptance of his submissions might require some modification (or to use his term “to nudge a little”) the law as expounded by the High Court.  He accepted that unless this was done, the factual findings made by RRT were such that the application for review must fail.

Consideration

It was, I think common ground, and in any event it is firmly established by authority, that whether or not a person has the status of a “refugee” within the meaning of the Convention is a matter for determination upon the facts as they exist at the time when the person seeks recognition as a refugee.

The applicant contended that “well-founded fear” meant “good reason” for fearing persecution.  The “good reason” for fearing persecution in the circumstances of the present case is to be found in the plausible account which the applicant has given of the events of 1987, and the reality of her continuing subjective fear.

The proposition that it is sufficient for an applicant to show “good reason” why he or she fears persecution was grounded in the arguments put by the intervener to the House of Lords in R v Home Secretary, ex parte Sivakumaran [1988] AC 958 at 977 and following. By those arguments, the intervener sought to support the statement of Sir John Donaldson MR in the Court of Appeal:

“Fear is clearly an entirely subjective state experienced by the person who is afraid.  The adjectival phrase ‘well-founded’ qualifies, but cannot transform, the subjective nature of the emotion.”

Those arguments were not accepted by the House of Lords, nor was the statement by the Master of the Rolls accepted as correctly stating the applicable principle.  Moreover, the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 refuted the proposition that one could substitute the notion of “good reason” for fear, that of “well-founded fear”. McHugh J at p 429 of the report also rejected the proposition that there was any real utility to be achieved by the substitution.

In Chan at p 396 Dawson J said:

“The phrase ‘well-founded fear of being persecuted’ has occasioned some difference of opinion in the interpretation of the relevant article of the Convention.  By any view, the phrase contains both a subjective and an objective requirement.  There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.”

And at p 397 Dawson J said:

“But ‘well-founded’ must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him, to have no foundation.  It is clear enough that the object of the Convention is not to relieve fears which are all in the mind, however understandable, but to facilitate a refuge for those who are in need of it.”

To similar effect are the observations of Toohey J at p 406:

“The use of the adjectival expression ‘well-founded’ must be taken as qualifying in some way the ‘fear of persecution’.  It is hard to conceive of a fear which has no objective foundation at all as well-founded, no matter how genuine the fear might be.  If the test were entirely subjective, the expression ‘well-founded’ would serve no useful purpose.”

McHugh J, at page 429 of the report said:

“Courts, writers and the U.N.H.C.R. Handbook agree, however, that a ‘well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified.  But are the facts which are to be examined confined to those which form the basis of the applicant’s fear?  In Sivakumaran the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant’s fear.  The contrary conclusion would mean that a person could have a ‘well-founded fear’ of persecution even though everyone else was aware of facts which destroyed the basis of his or her fear.”

In Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 six justices of the High Court approved the decision in Chan.  At p 577 the Court said:

“A fear is ‘well-founded’ when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 percent chance that the object of the fear will eventuate.  But no fear can be well founded for the purposes 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.”

Authorities binding on me establish that any subjectively held fear of persecution must be objectively well-grounded at the time when the claim to refugee status is made, if the operation of the Convention is to be attracted.  Contrary to the suggestion in the applicant’s submissions, there is no requirement that she must prove “the existence of a persecutory threat”.  That is not the law in Australia, nor does the Tribunal assert that it is.

In my opinion, it was open to RRT to conclude, as it did, that whatever the position may have been in 1987, substantial changes in both the applicant’s circumstances, and in the circumstances prevailing in Ireland have removed the objective reasons that formerly supported her fear of persecution.  I do not think that the Tribunal committed any legal error in concluding, as it did, that it was not satisfied that the applicant’s fear of persecution for a Convention reason is well-founded.  I did not understand Mr Lombard to disagree with this conclusion as he accepted, during the course of argument, that unless he was able to persuade me to “nudge” the law as it is ordinarily applied in this Court, the application must fail.  I am neither persuaded that I can, or even if I can, that I should, “nudge” applicable legal principle in that way.  Whilst I was taken to some statements in the Collected Travaux Preparatoires of the 1951 Geneva Convention, none would justify an approach to the construction of the Convention which left out of account that the fear be 'well-founded'.  The application, insofar as it is based on this ground, must fail.

Relocation

It was submitted that the Tribunal erred in law in its conclusion that it was reasonable for the applicant to relocate.  It was submitted that one takes the circumstances of an individual as one finds them, including the psychological dimension.  In the light of the applicant's psychological state, relocation would not be reasonable.  However, RRT noted that the applicant had been able to live and work in several different countries in the past, and this was a sufficient foundation for its conclusion on the relocation point.  The existence of a well-founded fear in relation to locations other than Northern Ireland is clearly relevant to the issue of reasonableness of relocation, but, in my opinion, it is not the law that relocation is unreasonable simply because an applicant has a fear which is not well-founded.  Cf Randhawa v The Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437.

Failure to make further enquiries into the applicant’s psychological state

This ground of review is raised by para 2 of the amended application.  It was not persisted in during the course of argument, and rightly so.  RRT accepted that the applicant’s subjective fears were genuinely held, albeit objectively not well-founded.  Hence there was no reason to make further enquiries into the applicant’s psychological condition, even if there would otherwise have been some obligation to do so.

Conclusion

The application must be dismissed.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated:            9 December 1998

Representative for the Applicant:

G Lombard

Counsel for the Respondent:

T Reilly

with S Fraser

Solicitor for the Respondent:

Australian Government Solicitor

A Markus

Date of Hearing:

3 December 1998

Date of Judgment:

9 December 1998