Mendis v Minister for Immigration and Multicultural Affairs

[2001] FCA 632

FEDERAL COURT OF AUSTRALIA

Mendis v Minister for Immigration & Multicultural Affairs
[2001] FCA 632

NIROSHA RAJINI MENDIA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1294 of 2000

WILCOX J
9 APRIL 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1294 of 2000

BETWEEN:	NIROSHA RAJINI MENDIS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	9 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant, Nirosha Rajini Mendis, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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	N 1294 of 2000

BETWEEN:	NIROSHA RAJINI MENDIS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	9 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application to review a decision of the Refugee Review Tribunal in relation to an application for a protection visa, made by Nirosha Rajini Mendis. 

2. Ms Mendis is a Sri Lankan national.  She came to Australia in 1996 to join her husband, who preceded her to Australia by approximately three months.  Apparently, Ms Mendis married her husband only a few days before he left Sri Lanka.  The basis of her application for a protection visa was that she had suffered persecution after his departure, because of the fact that she was a married woman known to be living apart from her husband.

3. Ms Mendis told the Tribunal of incidents that had occurred whilst she was travelling from her home to her work, and on the return journey.  Ms Mendis lived and worked in Colombo at the relevant time.  The Tribunal member accepted the truthfulness of the claims made by Ms Mendis in respect of the incidents themselves.  She also accepted that the incidents that occurred in the vicinity of Ms Mendis' home may have been occasioned by the fact that she was known, in that locality, to be married and living apart from her husband.  There was some evidence that married women living apart from their husbands were regarded as “fair game” by some males.

4. The Tribunal’s only reservation in respect of the factual claims made by the applicant was that the Tribunal could not see how incidents that had occurred between the applicant's office and her bus stop, when she was travelling either to or from work, would have been related to the fact that she was a married woman living apart from her husband.  The Tribunal's point was that people who did not know her personally, and did not have the information that passed around the locality where she lived would not have known she had that status.  However, this was a relatively minor qualification on the Tribunal's acceptance of the thrust of the evidence. 

5. It is not necessary for me to detail the various incidents.  It is sufficient to note that the Tribunal summarised the evidence in this way: 

   “I accept that several weeks after her husband's departure from Sri Lanka the applicant experienced harassment while travelling to and from work.  I accept that on one occasion a man engaged in an indecent act next to the applicant while she was on a bus.  However, according to her evidence, this was an isolated act by a complete stranger, the applicant was not harmed and received total support from the other passengers.  I accept that on other occasions the applicant was followed from the bus stop to her home by taxi drivers, by one particular man who also exposed himself to her.  I accept that those responsible for these actions lived or worked in the applicant's locality, and may have been aware of her circumstances.  I also accept that the applicant was the recipient of unwanted attention, mostly conversation and questions, as well as being followed whilst walking from the bus stop to her office.  I am not satisfied, given the evidence that the applicant lived several kilometres from her workplace, which was in a different part of Colombo, that the men responsible for this latter conduct were aware that the applicant's husband was overseas.  I accept that she was followed, chased and verbally harassed, and that she witnessed indecent exposure on more than one occasion.  I note that the applicant was never actually harmed or touched in any way, not does it appear that there was any implicit or explicit threat of further serious harm.  I note that this situation lasted for a few weeks, and the applicant could not have been subjected to this harassment every day of this period, given her evidence that on occasions her employer arranged for her to be driven home and that members or her household escorted her home from the bus stop most days.”

6. After summarising the effect of the evidence in this way, the Tribunal member posed for herself the relevant question as being:

   “whether the harassment encountered by the applicant constitutes persecution within the meaning of the Convention.”

7. The member referred to the guidance given by McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430-431, concerning the meaning of the word "persecution" in the Convention on Refugees.  At that point, his Honour observed that not every threat of harm to a person, or interference with his or her rights, for Convention reasons constitutes being persecuted.  He said:

   “The notion of persecution involves selected harassment. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or a member of a class, he or she is ‘being persecuted’ for the purposes of the Convention.”

8. McHugh J went on to point out that:

   “… the harm threatened need not be that of loss of life or liberty. Other forms of harm short of inference with life or liberty may constitute ‘persecution’ for the purposes of the Convention and Protocol.”

9. The Tribunal member referred to other authority before saying: 

   “Having carefully considered the evidence of the applicant in this matter, I conclude that the harm confronted by the applicant prior to her departure from Sri Lanka was not of sufficient significance or gravity to properly be considered persecution within the Convention.  I do not wish to trivialise or understate the effect of the offensive conduct to which the applicant was subjected during this period.  I appreciate that to be the victim of such harassment must have been unpleasant and demeaning.  However, I find that while unpleasant, the harassment in this case is properly characterised as minor.  I am satisfied that it did not represent a significant harm, detriment or disadvantage to the applicant.  I note that the applicant responded to the various incidents by carrying stones, running away and on one occasion kicking the perpetrator.  In my view, the fact that she was able to respond in this way supports a conclusion that conduct did not represent a serious sort of harm, or a significant detriment or disadvantage.  Further, that the applicant was not intimidated or oppressed by this conduct to a degree consistent with a view that amounts to persecution.  I note her evidence that when she gave up work, it was because her relative told her that her working was causing too much trouble for the family, it was not because she herself found the daily trips too frightening or traumatic.  Similarly, her decision to leave Sri Lanka was not motivated solely by the desire to remove herself from the circumstances in which she found herself, but by concern that the actions of interfering gossips would succeed in destroying the marriage, and because it became evident that the husband's absence would be longer than anticipated.  It seems likely that the stresses and strains placed upon the applicant by these additional worries may have had the effect of increasing the degree to which she was bothered by the harassment.  However, the evidence in my view does not support a conclusion that she was intimidated or oppressed to such a degree by the harassment she encountered, that it could be said to be persecution. 

10. Mr McCluskey, counsel for the applicant criticised some of the observations made in this passage, in particular the Tribunal member's reference to the significance of the applicant responding by carrying stones running away or kicking the perpetrator.  However, these submissions simply go to the facts of the matter.  This is not a legitimate area for the Court's intervention. 

11. Although a number of matters were put, in the end the case made by the applicant comes down to a single point.  The proposition is that the Tribunal erred in law in dealing with the question whether the conduct, that it accepted had occurred, amounted to persecution, without first considering whether that conduct occurred for a Convention reason.  Mr McCluskey argues that there was such an error of law. 

12. I do not think there is any doubt that it is factually correct to say that the Tribunal considered the issue of persecution - that is to say, whether on the facts, what occurred amounted to persecution - before considering the motivation for that conduct having occurred.  This much is made plain by the Tribunal member in a passage that lies immediately after the heading, "Findings and Reasons", and before considering the matter of persecution to which I have already referred.  In that passage the Tribunal member said:

    “I am satisfied that the applicant is a national of Sri Lanka and of no other country and that she is outside her country of nationality. 

    “The main issues to be determined in supplication are firstly, whether the harm suffered by the applicant prior to her departure from Sri Lanka is sufficient gravity to be considered persecution.  Secondly, whether that harm was directed at her for any of the Convention reasons and in particular as a member of a particular social group comprised of ‘married women without a husband’ or ‘married women going out without protection’ or something similar.  Thirdly, given that the harm she feared is from private individuals whether the Sri Lankan authorities were able to provide effective protection to the applicant against that harm.  Whether they were unable to protect the applicant from any harm or indeed whether they encouraged the perpetrators of the harm.”

    The Tribunal member ultimately dealt with the third issue and decided this adversely to the applicant, but the point remains that the first issue was determined separately from the second issue.  Mr McCluskey argues this was erroneous and that the first two issues identified by the Tribunal member should have been considered together.  The basis of this submission is a passage in the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 256. McHugh J said:

    “The phrase, a well founded fear of being persecuted for reasons of membership of a particular social group is a compound conception.  It is therefore a mistake to isolate the elements of the definition, interpret them and then ask whether the facts of the instant case are covered by the sum of those individual interpretations.  Indeed to ignore the totality of the words that define a refugee for the purposes of the Convention in the Act would be an error of law by virtue of a failure to construe the definition as a whole.”

13. I do not think this passage assists the argument for the applicant in the present case. McHugh J was dealing with the construction of the Convention.  This is made clear by a sub-heading, higher on page 256, which reads:

    “The meaning of membership of a particular social group must be construed in the light of the definition of refugee taken as a whole.”

    The passage relied on by Mr McCluskey was directed to that point.  McHugh J was indicating that it was necessary to look at the whole of the definition of refugee, in forming a view as to the meaning of part of it; in that particular case, the words "membership of a particular social group".  That, with respect, is a well established principle; one always looks at the totality of a statutory provision in order to construe a contentious part of it.  McHugh J was doing no more than referring to that well accepted principle.

14. In the present case, the Tribunal was not concerned to interpret the definition of “refugee” in the Convention or, indeed, to construe any other legal provision.  The Tribunal member was concerned to apply the Convention’s definition to the facts of the case.  She rightly understood that the first question she had to consider, in applying the definition, was the nationality of the applicant.  She addressed that, and found the applicant was a national of Sri Lanka, as she claimed.  It was then obvious that she was outside her country of nationality, she being in Australia at the time.

15. The next step was to determine what facts should be accepted.  The Tribunal member did this by dealing with the claims made by the applicant as to the incidents that had occurred.  The member set out findings in that regard which were, as I have said, substantially favourable to the applicant. 

16. The next question as a matter of logic, is whether the conduct found by the Tribunal could fairly be regarded as “persecution within” the meaning of the Convention.  Persecution is a concept of degree; as McHugh J had pointed out, not every act of harm can properly be characterised as persecution.  A decision-maker must have regard to the nature of the harm that has occurred or is threatened.  This may involve consideration of the magnitude of the harm and also the pattern, if any, of infliction of harm.

17. It must always be remembered that the ultimate question for the Tribunal is not what has happened in the past, but whether the applicant for a protection visa has a well-founded fear of being persecuted in the future, if returned to his or her country of nationality.  There are exceptions to the principle that the past is the best guide for the future; it may be known that conditions have changed in the country of nationality either for better or worse.  However, leaving aside those exceptions, the past is often the best - indeed, normally the only - guide for the future.

18. Accordingly, it is the conventional course for the Tribunal to consider the evidence offered by the applicant concerning past treatment in order to gauge whether that person has a well-founded fear of being persecuted in the future.  As I have said, in considering that conduct it is necessary to have regard to its nature, the magnitude of the harm, and any pattern of recurrence.  The Tribunal member considered those in the present case.  After doing so, she reached a judgment which seems to me to be entirely a judgment of fact, because it reflects an assessment of degree: the extent of the harm did not amount to persecution.

19. Once that finding was made, in a practical sense, it was the end of the applicant's claim for refugee status.  The applicant accepted that her claim of a well-founded fear of persecution in the future depended upon the nature of the past incidents.  Once those incidents were categorised as not amounting to persecution, there was no basis for her to say that her fears for the future were of a well-founded fear of persecution.

20. It seems to me that, in that situation, it was not necessary for the Tribunal member to determine whether the incidents that had occurred in the past had arisen because of the fact that the applicant was known to be a woman living apart from her husband. 

21. I asked Mr McCluskey whether his case would be advanced if the Tribunal member had separately addressed that issue, and had found in his client's favour in relation to it, but nonetheless had said the incidents which had occurred did not amount to persecution.  Mr McCluskey agreed that his client would still have failed.  It seems to me this is correct.  It points up the academic nature of the point that has been taken.  For what it matters, it seems the Tribunal  member did accept that it was known in the neighbourhood that the applicant was a woman living apart from her husband.  The member may well have accepted this second element had she found it necessary to deal with it. 

22. I do not think there was any error of law in the Tribunal failing to deal together with what are, logically, two separate considerations in resolving issues of fact.

23. The order that I make is that the application be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             30 May 2001

Counsel for the Applicant:	I McCluskey
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 April 2001