M251of 2003 v Minister for Immigration
[2005] FMCA 582
•5 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M251of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 582 |
| MIGRATION – Protection visa – Review of Refugee Review Tribunal decision – whether error of law in failing to make specific finding of applicant’s ability to obtain police protection – need to proceed from general to specific finding. |
Migration Act 1958, s.36(2)(b)
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
SDAO v MIMIA [2003] FCA 132 (4 March 2003)
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 (30 April 2003)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184 (15 August 2003)
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
| Applicants: | APPLICANTS M251 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 808 of 2004 |
| Delivered on: | 5 May 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 8 March 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicants: | Mr B.F. Kissane |
| Solicitors for the Applicants: | Wimal & Associates |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The decision of the RRT handed down on 25 July 2003 be set aside.
The matter be remitted to a differently constituted Tribunal to be determined according to law.
The Respondent pay the Applicant’s costs of the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 808 of 2004
| APPLICANTS M251 of 2003 |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 22 August 2003 the applicants filed an application in the High Court for an order nisi in respect of a decision of the Refugee Review Tribunal (the RRT) handed down on 25 July 2003.
The High Court remitted the matter to the Federal Court on
23 February 2004 and on 21 June 2004 the Federal Court transferred it to the Federal Magistrates Court.
Until approximately one week prior to this hearing the Applicant has been unrepresented and had filed contentions of fact and law on 15 July 2004. After becoming represented, the applicant sought and was granted leave to file and rely upon "Further Contentions of Fact and Law" dated 4 March 2005. The respondent has relied upon contentions of fact and law dated 9 August 2004. Both parties were represented and otherwise made oral submissions to the court with the respondent, adding to the written submissions by way of reply to the recently filed further contentions of fact and law which had been filed on behalf of the applicant.
The first and second applicants, who are husband and wife, are Sri Lankan citizens. They arrived in Australia on three-month visitor visas on 14 September 2001. The third applicant is a child of the relationship who was born in Australia on 13 December 2001. It is only the first applicant who makes the substantive protection visa claims. His wife and son's protection visa applications depend entirely on the first applicant's claims. Hence in the submissions from the respondent and in the reasons for this decision, I shall simply refer to the term "the applicant" though it relates to all applicants but specifically relates to the first applicant as he is the substantive applicant in the matter before me.
On 25 October 2001 the first and second applicants lodged with the Department of Immigration and Multicultural and Indigenous Affairs an application for protection visas. The third applicant was added to the application on 22 January 2002. A delegate of the Department refused the application on 4 February 2002. The applicants then lodged an application for review with the RRT on 26 February 2002. On 25 July 2003, the RRT handed down its decision dated 30 June 2003 whereby it affirmed the delegate's decision to refuse to grant a protection visa to the applicants.
The claim of the applicants has been set out in some detail in the respondents' contentions of fact and law, and that summary of the claim does not appear to be significantly challenged. I therefore regard it as reasonably accurate and useful for the purpose of providing some background in relation to this matter.
The applicant had claimed before the RRT on the basis of his political opinion as a supporter of the United National Party (UNP) that he faced a real chance of persecution by political opponents associated with the People's Alliance (PA) if he were to return to Sri Lanka. Specifically, the applicant claimed the following matters:
(a)during the 1994 Sri Lankan presidential elections, the applicant assisted the UNP with production of advertising material and undertook other activities [CB 38.6 and 106.2];
(b)as a result of this support for the UNP, the applicant began to receive threats from PA supporters after the 1994 Sri Lankan general elections [CB 106.3];
(c)although he complained to the police about these threats, the police did not take action [CB106.3];
(d)during the 2000 Sri Lankan parliamentary elections, the applicant assisted with a UNP candidate’s campaign [CB106.4];
(e)as a result of this assistance, the applicant received written and verbal death threats at his home and workplace, his car was vandalised, and he was attacked;
(f)despite his complaints to the police, the threats continued up to the time of his departure from Sri Lanka [CB 106.5 and 107.4];
(g)he knew that PA supporters were the source of these threats because he had been threatened in person by PA thuds during election campaigns [CB107.5];
(h)one motivation for the threats was to extort money from the applicant, who was a business person [CB 107.5-6];
(i)subsequently, army officers detained the applicant [CB 106.6-7] and:
(i)interrogated him about a Tamil family renting one of the applicant’s properties;
(ii)falsely accused him of knowing that a member of the Tamil family was a member of the Liberation Tigers of Tamil Eelam (LTTE);
(iii)threatened to kill him if he did not pay them 150,000 rupees;
(j)the army officers were ‘obviously’ acting on the orders of the PA [CB 106.8];
(k)the applicant paid the army officers to stop them from killing him [CB 107.7];
(l)subsequently, the army officers continued to harass him and ask for money up to his departure from Sri Lanka [CB 107.8];
(m)however, the applicant refused to give the army officers any more money because he suspected that they were acting on behalf of the PA [CB 107.8];
(n)subsequently, the army officers continued to inquire about the applicant’s whereabouts before and after his departure from Sri Lanka [CB 106.8];
(o)between the mid-1990s and the time of his departure from Sri Lanka, the applicant made six or seven complaints to police about threats and harassment [CB 108.11];
(p)on each occasion, the police recorded his complaints; however, they apparently ignored his complaints because the threats against him did not stop [CB 108.3]; and
(q)although the UNP succeeded at the most recent Sri Lankan elections, the applicant remained fearful to Sri Lanka because the UNP would not be able to protect his personally and he would be ‘assigned’ to the ‘underworld’ by the PA [CB 108.10].
It is useful to set out the tribunal's findings in this matter, and I do so in full, as it is evident that the findings and reasons are brief, and a key issue raised in this application is the finding by the RRT that it was not satisfied that the appellant had a well-founded fear of being persecuted by PA supporters because of his political support for the UNP. The relevant findings and reasons are as follows:
“FINDINGS AND REASONS
The Tribunal finds that the applicant was a credible witness. He responded spontaneously and in detail when questioned at the hearing about his experiences of mistreatment in Sri Lanka and their context. Further, his evidence at the hearing was broadly consistent with the evidence he provided to the delegate.
The Tribunal therefore accepts that the applicant was an active and prominent UNP supporter from a time shortly before the 1994 parliamentary elections until he departed Sri Lanka that he was closely associated with Mr A, a UNP parliamentarian; and that he did a substantial amount of work for Mr A and the UNP between the 1994 parliamentary elections and the at (sic) least the time of the 2000 elections. Further, the Tribunal accepts that the applicant was threatened on numerous occasions by PA supporters, and assaulted by them on one occasion, because of his support and work for the UNP over a seven-year period when the PA was in power, and that PA supporters used corrupt army officers to extort money from the applicant in the months prior to his departure for Australia.
The Tribunal accepts that the threats against the applicant resulted in him fearing for his life at times, and that at other times he believed he could neutralize the threats if he paid money to the people who were threatening him. It also accepts that the applicant complained to the police about the threats against him on seven occasions between the mid-1990s and the applicant's departure for Australia, and that he believed that the police did not provide adequate or effective protection, in part, because the threats against him continued.
An applicant must be unable, or unwilling because of his fear, to avail himself or herself of the protection of his or her country or countries of nationality. Whenever the protection of an applicant's country is available, and there is no ground based on well-founded fear of refusing it, an applicant is not in need of international protection and is not a refugee. In this context, Tribunal refers to the fact that the applicant lodged seven complaints to the police over a six to seven year period. The Tribunal notes the applicant's evidence that he continued to lodge complaints with the police, despite having no confidence in them, because his wife wanted to ensure that there was a record of his complaints if anything happened to him. At the same time, he gave evidence that they had recorded his complaints; that he did not inform the police that PA supporters were forcing him to pay money to them; that he submitted threatening letters to them; and that he returned to the police station to follow up at least one complaint he had lodged with them.
Further, the Tribunal refers to the Inform Situation Report that indicates the high-profile UNP and PA politicians were charged with serious criminal offences following the 1994 Sri Lankan elections; and to DFAT's observation in 1995 that members of all political parties in Sri Lanka 'have equal access to the law and to police protection'. Further, inter-party violence has not been condoned by former UNP President Wijetunga nor by the former PA government (DFAT reports, Inform Situation Report and Agence France Presse report). Given that such inter-party violence has not been condoned in the relatively recent past by the former UNP or PA governments, and that it has affected both UNP and PA supporters, the Tribunal does not accept that it will be condoned by the recently elected UNP government or by the President of Sri Lanka. In light of these reports, the Tribunal finds there is a reasonable level of efficiency of the police, judicial and related services in Sri Lanka.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted by PA supporters because of his political support and the UNP.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa.
No specific Convention claims were made by or on behalf of the second and third named applicants. The fate of their application therefore depends on the outcome of the first-named applicant's application. As the first named applicant cannot be granted a protection visa, it follows that the second and third named applicants cannot satisfy the alternative criterion set out in s.36(2)(b) of the Act and cannot be granted a protection visa."
I have deliberately set out in full the findings and reasons of the RRT as they provide relevant statements which both counsel sought to refer to during the course of submissions.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
Applicants submissions
It was argued on behalf of the applicant that whilst there are clearly a number of favourable findings made by the RRT in relation to the applicant, including what I regard to be a significant finding that he was a credible witness, together with acceptance that he was an active and prominent UNP supporter from a time shortly before the 1994 parliamentary elections, that he was threatened on numerous occasions by PA supporters, assaulted by them on one occasion because of his support and work for the UNP over a seven‑year period, and further, perhaps more significantly, that PA supporters used corrupt army officers to extort money from the applicant in the months prior to the departure for Australia. It was submitted that in the circumstances the RRT fell into error when it then concluded that it was not satisfied the applicant had a well-founded fear of being persecuted by PA supporters because of his political support for the UNP. Specifically, the court was invited to draw the conclusion that in this case it would have been more appropriate for the RRT to make a particular finding in relation to this applicant concerning the extent to which he would be afforded protection or be able to avail himself of the protection of the state.
I note further in passing that the extract from the RRT's findings and reasons also reveal that it had accepted that threats against the applicant resulted in him fearing for his life at times, and accepted that he complained to police about the threats on seven occasions between the mid-1990s and the date of the applicant's departure for Australia and also of further significance that he believed the police did not provide adequate or effective protection, in part, because the threats against him continued. Hence I conclude that there was presumably a basis in fact upon which the RRT accepted the belief of the applicant that the police did not provide adequate or effective protection. In its reasons the RRT refers to the applicant lodging complaints, despite having no confidence in the police and further refers to the fact that he did that "because his wife wanted to ensure that there was a record of his complaints if anything happened to him".
It is against the backdrop of those findings that, as I understand it, the specific and key criticism to be made by the applicant of the RRT decision and in support of this application is its failure to consider whether or not the applicant specifically was in a position where he was able to avail himself of the protection of his country or has effective protection. It was argued that the RRT asked itself whether there was protection in general available in the country but there is no indication in the decision that it asked itself whether someone in the applicant's position, bearing in mind the claims that it accepted and the history of the applicant, would be able to avail himself of the protection of the state.
The RRT, having made findings about the history of the applicant, including evidence about difficulties obtaining state protection, should have asked itself, according to the applicant's submissions, whether someone in the applicant's position has effective protection. It was submitted that it should be borne in mind that the applicant was specifically stating that the police did not assist him because the threats continued and that army officers were also involved in his problems.
During the course of submissions, counsel for the applicant referred the court to the decision of the Federal Court in the matter of SDAO v MIMIA [2003] FCA 132 (4 March 2003) (SDAO) where von Doussa J of the Court held as follows:
“5 At the time when the applications for review of these adverse Tribunal decisions came on for hearing before the Federal Magistrate, the matters of NAAV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449, although set down for hearing, had not been heard by the Full Court and there were conflicting single Judge decisions as to the construction and scope of s 474 of the Act. Written submissions to the Federal Magistrate contended that it was possible to infer from the reasons given in each case that the decision of the Tribunal was not a bona fide attempt to exercise its power. On this basis it was contended that in accordance with the so-called Hickman conditions (R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615) the privative clause in s 474 of the Act would not operate. At the hearing before the Federal Magistrate, counsel for the appellants additionally advanced oral submissions that each of the decisions was infected by jurisdictional error on the part of the Tribunal of the kind discussed in Craig v The State of South Australia (1995) 184 CLR 163 at 179 and in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21-22 (Yusuf). It was contended that the Tribunal in each instance failed to ask itself the correct question which was a fundamental pre-requisite in considering whether the appellant was a refugee. In particular it was contended that the Tribunal decided the issue adverse to each appellant on the basis of general country information and not on the basis of the appellant as an individual. In consequence, it was argued, the Tribunal did not consider whether there was a real risk of persecution to the appellant as an individual in light of the evidence about those in charge of the province from which the appellant came, and the relationship between those in charge and the other authorities having power in the area.
…
7 Before this Court, counsel argued that the Federal Magistrate erred in characterising the appellants' arguments as a "request to substitute [his] reading of the evidence for that of the Tribunal ...". Counsel said that the argument put was that set out above in [5] and this Court has been invited to hold that the Federal Magistrate erred in not finding that there was, for that reason, a jurisdictional error which empowered this Court to set aside the decisions of the Tribunals, notwithstanding s 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.
…
17 I think it is implicit in the reasoning of the Tribunal in each matter that the Tribunal not only accepted that the appellant before it had a well founded fear of persecution for a Convention reason when he left Afghanistan, but also that he continued to have a subjective fear that he would suffer persecution if he were to return. The question for the Tribunal was whether that subjective fear was well founded for a Convention reason having regard to the changes which had occurred in Afghanistan. In considering that question, it was incumbent upon the Tribunal to have regard to the several claims made by each appellant as to why his continuing fear was well founded.
18 The notices of appeal assert that the Tribunals fell into jurisdictional error in that each failed to ask itself the correct question, namely whether there was a real risk of persecution to the appellant as an individual in light of the information about the changes which had occurred in the Paktia Province. Alternatively, the argument could be considered as one that the Tribunals failed to take into account relevant considerations, namely, the claims of each appellant for which, counsel contended, there was a basis in the information justifying a well founded fear of persecution. In Yusuf at 21 [82], McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, said:
"`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig [Craig v The State of South Australia (1995)184 CLR 163 at 179], is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material."
…
20 In each of the present appeals I consider it is clear from the passages of the Tribunals' decisions set out above that the elements or integers of the claims made by each of the appellants were considered and determined by the Tribunals. Whilst each Tribunal commenced its consideration by reviewing country information, much of it general in nature, the Tribunal then proceeded from the general to the particular and addressed the position of the appellant in the changed circumstances revealed by the country information. Contrary to the submissions of the appellants, I think it is clear from the reasons of the Tribunals that in each instance it considered the relevant considerations applicable to the claims made by each appellant and did not fall into jurisdictional error.”
It was submitted that in the present case, after making findings about the claims of the applicant, when the RRT came to deal with the particular issue of protection, it did not move from the general to the particular as suggested would be appropriate by the Court in SDAO.
It was further submitted for and on behalf of the applicant that although the RRT accepted the claims of the applicant, it failed to consider the applicant's claim that someone in his circumstances does not have effective protection. That was the claim before the RRT and the applicant gave evidence of the army being part of the applicant's problems and the police failing to assist in his circumstances. It was submitted the RRT failed to deal with the applicant's claims in its consideration of effective protection. That failure would constitute jurisdictional error. The Court was referred to SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 (30 April 2003) per Madgwick and Conti JJ in their majority judgment at paragraph 29 as follows:
“29 However these matters may be, even on the narrow view of the effect of S157 proposed by counsel for the appellant, it cannot be other than an important matter, going to the core of the Tribunal's jurisdiction, to overlook crucial material amounting, as Allsop J put it in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, to an integer of the claim. In that case, Allsop J, with whom Spender J agreed, said that "To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on". His Honour then made clear that this includes a failure to examine all the integers of any claim, saying "The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Immigration and Multicultural Affairs v Peko-Wallsend (1986)162 CLR 24 ... and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323" (emphasis added). Merkel J agreed with Allsop J in the result and was not at odds with Allsop J's approach. Another Full Court (Black CJ, Wilcox and Moore JJ) agreed with this approach in W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at 78-81 [31]-[38].”
It was submitted that in considering state protection, the RRT was required to consider someone in the applicant's position and not simply the general situation of state protection in Sri Lanka. It is claimed that when it made its findings in relation to state protection, the RRT did not specifically consider the applicant and therefore it failed to ask itself the right question or failed to consider the claims of the applicant and in doing so failed to exercise jurisdiction and committed a jurisdictional error.
Respondent’s submissions
The respondent submitted that there is no jurisdictional error or any basis upon which this court should intervene by way of judicial review of the decision. It was argued that on a proper and fair reading of the RRT's findings, it has appropriately relied upon country information and has then proceeded to draw conclusions in relation to the specific finding which ultimately led it to affirm the delegate's decision refusing a protection visa. It was argued that although the tribunal did accept a number of the matters raised by the applicant, and indeed that he was a credible witness, it did not accept ultimately that the applicant had a well-founded fear of persecution by PA supporters because of his political support of the UNP. It was argued that the finding of the RRT where it specifically states that "there is a reasonable level of efficiency of the police, judicial and related services in Sri Lanka" was one part of a two-part finding. Reliance was placed upon the previous sentence in the findings and reasons of the RRT where it states the following:
“Given that such inter-party violence has not been condoned in the relatively recent past by the former UNP or PA governments and that it has effected both UNP and PA supporters, the Tribunal does not accept that it will be condoned by the recently elected UNP government or by the President of Sri Lanka.”
That finding, it was submitted, was a finding reasonably open to the RRT based upon country information, and the finding is one which applies specifically to the applicant as a member of a political party. It is noted in the findings of the RRT set out in full earlier in this judgment that reference was made to DFAT's observations in 1995 "that members of all political parties in Sri Lanka have equal access to the law and to police protection". In that context it was argued on behalf of the respondent that the court should consider the findings of the RRT and should be satisfied that the RRT had "implicitly concluded that the applicant was able to avail himself of effective protection provided by the Sri Lanka authorities".
During the course of submissions, the court was referred by the respondent to the often cited decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and in particular the passage from the court's decision which appears at page 272 as follows:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present case, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’”
The respondent further relied upon a decision of the Full Court of the Federal Court of Australia in the matter of QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9, and in particular, the following paragraphs:
“12 The appellant placed reliance upon the terms of the finding by the Tribunal in support of these contentions. It said (at [106]):
‘While it may be that the police are not always effective in controlling violence, there is no evidence before me which persuades me that the harassment and violence that may be suffered by Indo Fijians originates from the government or is tolerated by, or cannot be controlled by the government of Fiji.’
13 The appellant submits that it is irrational to suggest that the government is able to control violence but that the police cannot. It seems to us that the Tribunal was saying no more than that there was no guarantee against occasional racial harassment. Dowsett J observed that whilst the country information did not indicate there would be no harassment, it was difficult to see how a decision based on the information could give rise to any permissible ground for review. We respectfully agree. Protection in the relevant sense does not mean prevention of harm. The question is whether a State is able to protect its nationals: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 566-567. The question, which is one of fact, is the question the Tribunal addressed.”
In dealing with the issue of whether the RRT failed to consider an issue, reliance was placed upon the Full Court of the Federal Court decision in the matter of applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184 (15 August 2003) and in particular the following paragraph:
“47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Reasoning
It is perhaps not necessary to refer to further authorities concerning country information, but I accept and apply that the general principles in relation to reliance on country information are appropriately set out in the further decision of the Full Court of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 where that court states the following:
“11 The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
In my view, in applying the authorities to which reference has been made by both parties, I accept that this court should not take an unduly technical view or be overzealous in its interpretation of the reasons given by the RRT. I further accept that the RRT in making its findings in a case of this kind is entitled to have regard and give appropriate weight to country information in reaching the conclusion it reached that in the circumstances there is a reasonable level of efficiency of the police, judicial and related services in Sri Lanka. However, in my view, where the RRT makes a finding of that kind against the backdrop of specific and particular allegations of corrupt army officers being used to extort money from the applicant, and where the issue of complaints to the police have been agitated with an acceptance by the RRT itself, that the applicant believed the police did not provide adequate or effective protection, in part because threats against him continued, it is then incumbent upon the RRT to further make a specific finding in relation to this particular applicant concerning the extent to which he is able to avail himself of the protection of the police and the local authorities.
In this case, as in the matter of SDAO, there is a requirement that the RRT should proceed from a general to a particular finding in relation to the applicant. That may not be the case if there were vague and general allegations made as to the state of affairs in Sri Lanka by the applicant. In the present case, however, it is clear to me on a proper reading of the claim presented to the RRT that this applicant made very specific and detailed allegations in relation to the threats made against him, the fact that he was subject to extortion by corrupt army officers and having found that the applicant was a credible witness the RRT should then have proceeded to make specific and particular findings in relation to this applicant.
In the context of this application and the claims before the RRT, I do not accept that it is appropriate for the RRT's findings to be regarded as without jurisdictional error by what might be described as an implicit conclusion. Whilst I can appreciate the respondents' submission that taken together the reference to country information and the ultimate conclusion may indeed lead one to conclude, albeit implicitly, that the applicant was able to avail himself of effective protection provided by the Sri Lankan authorities, in my view on a proper reading of the claim the RRT has failed to properly analyse and assess the claim as put specifically by this applicant. Those allegations are set out in detail in the summary referred to earlier in this judgment. It has not sought to reconcile its acceptance of the applicant's credibility and acceptance of the other matters to which reference has been made in a way which would lead the applicant to conclude that the claim as put was properly or appropriately considered, or indeed considered at all, in the absence of a specific rather than an implicit finding concerning this applicant.
That failure on the part of the RRT, having regard to the authorities to which I have referred, is sufficient to constitute jurisdictional error. It follows, therefore, that the decision of the RRT should be set aside, the matter remitted to a differently constituted tribunal for further consideration, and the respondent should pay the applicant's costs of this application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 5 May 2005
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