MIMIA v VBAO of 2002

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FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495

MIGRATION – judicial review – protection visa – whether Tribunal correctly applied s 91R of the Migration Act 1958 (Cth) by finding that death threats were not prima facie instances of serious harm – appeal allowed

Migration Act 1958 (Cth) s 91R

Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487, referred to

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v VBAO OF 2002

V 680 OF 2004

MARSHALL J
19 NOVEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 680 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT

AND:

VBAO OF 2002
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

19 NOVEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be allowed.

2.   The orders of the Federal Magistrates Court of 14 May 2004 be set aside

3.   The application for judicial review of the decision of the Refugee Review Tribunal of 29 January 2002 be dismissed.

4. Within 7 days of the date of this order the parties file and serve brief written submissions on the question of costs, including any application under s 6(2) of the Federal Proceedings (Costs) Act 1981 (Cth), which the respondent may make.

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 680 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT

AND:

VBAO OF 2002
RESPONDENT

JUDGE:

MARSHALL J

DATE:

19 NOVEMBER 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This matter is an appeal from a judgment of a Federal Magistrate, in which his Honour declared a decision of the Refugee Review Tribunal (“the RRT”) to be invalid and ordered that a writ of certiorari issue to quash the decision and a writ of mandamus issue to require the RRT to determine the application before it according to law.

  2. The question for determination in the appeal is whether the Federal Magistrate erred in concluding that the RRT had misapplied s 91R of the Migration Act 1958 (Cth) (“the Act”) by incorrectly determining the meaning of “persecution” in the context of its findings concerning the respondent.

    Background

  3. The respondent is a citizen of Sri Lanka. He is a musician who entered Australia on 5 November 2001. On 9 November 2001 he applied for a protection visa. A delegate of the appellant refused that application on 6 December 2001. On 13 December 2001 the respondent applied to the RRT for a review of the decision of the delegate. The RRT conducted a hearing on 22 January 2002 at which the respondent gave oral evidence. On 29 January 2002 the RRT affirmed the decision of the delegate not…

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Details
Case
[2004] FCA 1495
Decision Date

CaseChat Overview and Summary

The case of MIMIA v VBAO of 2002, involves a citizen of Sri Lanka who applied for a protection visa in Australia, claiming a well-founded fear of persecution due to his political activities. The Refugee Review Tribunal (RRT) upheld the decision to deny his visa application, concluding that the respondent's political involvement was not significant enough to constitute a risk of serious harm upon return to Sri Lanka. The respondent appealed this decision, arguing that the RRT misapplied section 91R of the Migration Act 1958 by incorrectly defining "persecution."

The key legal issue before the court was whether the RRT properly interpreted and applied section 91R in its assessment of the respondent's claim. Specifically, the court needed to determine if the RRT's finding that the threats against the respondent did not constitute "serious harm" was consistent with the statutory definition of persecution as set out in the Act and the Refugees Convention. The court also had to consider whether the RRT's approach to assessing the risk of future persecution was appropriate.

In its reasoning, the court noted that the RRT's interpretation of "serious harm" under section 91R(2)(a) was too broad and did not align with the legislative intent. The court held that the RRT should have interpreted "threat" in the context of the Act's purpose, which is to raise the threshold for what constitutes "serious harm." The court emphasised that threats alone, without actual harm or significant risk, do not meet the criteria for serious harm under the Act. The court found that the RRT's conclusion that the threats did not amount to serious harm was open to them, given the statutory language and legislative context. The court further found that the RRT had not erred in its assessment of the risk of future persecution, as the respondent's past political involvement was deemed insufficient to pose a serious risk upon return.

The court concluded that the appeal should be allowed, and the orders of the Federal Magistrates Court were set aside. The application for judicial review of the RRT's decision was dismissed. The parties were directed to submit written briefs on the issue of costs within seven days of the court's order.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Federal Magistrates Court of 14 May 2004 be set aside

3. The application for judicial review of the decision of the Refugee Review Tribunal of 29 January 2002 be dismissed.

4. Within 7 days of the date of this order the parties file and serve brief written submissions on the question of costs, including any application under s 6(2) of the Federal Proceedings (Costs) Act 1981 (Cth), which the respondent may make.

Background

Background to the litigation

The question for determination in the appeal is whether the Federal Magistrate erred in concluding that the RRT had misapplied s 91R of the Migration Act 1958 (Cth) (“the Act”) by incorrectly determining the meaning of “persecution” in the context of its findings concerning the respondent.Background The respondent is a citizen of Sri Lanka. He is a musician who entered Australia on 5 November 2001. On 9 November 2001 he applied for a protection visa. A delegate of the appellant refused that application on 6 December 2001. On 13 December 2001 the respondent applied to the RRT for a review of the decision of the delegate. The RRT conducted a hearing on 22 January 2002 at which the respondent gave oral evidence. On 29 January 2002 the RRT affirmed the decision of the delegate not to grant the respondent a protection visa. The respondent claimed before the RRT that he had a well-founded fear of persecution, if returned to Sri Lanka, by reason of his political opinion. He claimed, amongst other things, that he is a member of a political party and that members of a rival political party had threatened his life. He said that he had received threatening telephone calls and letters saying that he should not take part in political activities. He claimed that he was told that if he reported the incidents to police then his father would be killed. Accordingly he did not report the threats to the police. After being assaulted by members of a rival political party in December 2000, the respondent said he received ten telephone calls and letters telling him not to work for his party or take his band to political gatherings.The RRT’s decision The RRT accepted that the respondent was a supporter or member of the party known as the People’s Alliance (“the PA”). However, it found that his involvement was limited to voting for the PA, assisting it with practical tasks during election campaigns, attending rallies and occasionally providing musical entertainment. The RRT accepted that the respondent might have received intimidating and threatening telephone calls and letters and that thugs connected with an opposing political party assaulted him. The RRT said that it considered the telephone calls and letters, “while no doubt troubling” not to involve serious harm to the respondent. It considered the assault on the respondent as an “isolated incident”. It found that there was no serious intent to harm him. It also found that the chance of the respondent coming to serious harm upon return to Sri Lanka because of his past political involvement was remote, given the nature and extent of that involvement. The RRT finally considered that there is a “measure of police action [which] further limits the chance that the [respondent] would face serious harm because of political activity in which he might take part upon his return.”Legislative Context Section 91R of the Act provides that:“Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and(b)the persecution involves serious harm to the person; and(c)the persecution involves systematic and discriminatory conduct.(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a)a threat to the person's life or liberty;(b)significant physical harassment of the person;(c)significant physical ill-treatment of the person;(d)significant economic hardship that threatens the person's capacity to subsist;(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.(3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;disregard any conduct engaged in by the person in Australia unless:(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”The judgment under appeal

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J
The respondent claimed before the RRT that he had a well-founded fear of persecution, if returned to Sri Lanka, by reason of his political opinion. He claimed, amongst other things, that he is a member of a political party and that members of a rival political party had threatened his life. He said that he had received threatening telephone calls and letters saying that he should not take part in political activities. He claimed that he was told that if he reported the incidents to police then his father would be killed. Accordingly he did not report the threats to the police. After being assaulted by members of a rival political party in December 2000, the respondent said he received ten telephone calls and letters telling him not to work for his party or take his band to political gatherings.The RRT’s decision The RRT accepted that the respondent was a supporter or member of the party known as the People’s Alliance (“the PA”). However, it found that his involvement was limited to voting for the PA, assisting it with practical tasks during election campaigns, attending rallies and occasionally providing musical entertainment. The RRT accepted that the respondent might have received intimidating and threatening telephone calls and letters and that thugs connected with an opposing political party assaulted him. The RRT said that it considered the telephone calls and letters, “while no doubt troubling” not to involve serious harm to the respondent. It considered the assault on the respondent as an “isolated incident”. It found that there was no serious intent to harm him. It also found that the chance of the respondent coming to serious harm upon return to Sri Lanka because of his past political involvement was remote, given the nature and extent of that involvement. The RRT finally considered that there is a “measure of police action [which] further limits the chance that the [respondent] would face serious harm because of political activity in which he might take part upon his return.”Legislative Context Section 91R of the Act provides that:“Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and(b)the persecution involves serious harm to the person; and(c)the persecution involves systematic and discriminatory conduct.(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a)a threat to the person's life or liberty;(b)significant physical harassment of the person;(c)significant physical ill-treatment of the person;(d)significant economic hardship that threatens the person's capacity to subsist;(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.(3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;disregard any conduct engaged in by the person in Australia unless:(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”The judgment under appeal

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Finally, counsel submitted that the RRT formed no view as to whether the respondent would face threats to his life in the future and, to the extent that state protection was considered, it was not done so in respect of the harm contemplated by s 91R(2)(a). Counsel contended that, in any event, any subsequent reasoning of the RRT could not cure its fundamental antecedent error of construction.Consideration In the introductory portion of the RRT’s reasons for decision, the RRT noted that there were “four key elements in the Convention definition” of refugee. The first was that the visa applicant must be outside the country of origin. The second was that the visa applicant must fear persecution as defined by s 91R. The third was that the visa applicant must fear persecution for a Convention reason. The fourth was that the fear of persecution for a Convention reason must be well founded. The RRT was satisfied as to the first key element. The RRT was not satisfied as to the second key element. It considered that the death threats did not constitute serious harm. In my view, this finding was entirely open to the RRT. The principles of statutory construction, applied to s 91R(2)(a), favour the definition of ‘threat’ advanced by the appellant. When regard is had to extrinsic material, in particular the Explanatory Memorandum referred to at [20], the position is put beyond doubt. Section 91R is a relatively recent addition to the Act, designed to set the parameters and raise the threshold of what can properly amount to ‘serious harm’, within the spirit of the Refugees Convention. Against this backdrop, the word ‘threat’, in the context of s 91R(2)(a), cannot sensibly be construed to have the meaning contended for by the respondent. It could not, in my view, have been the intention of Parliament that threats in the form of declarations of intent, could prima facie constitute serious harm. Even with the qualification to s 91R(2)(a), which the respondent submits must operate to exclude from its scope, threats which do not have the capacity to instil fear, it is clear that application of the respondent’s definition would be productive of anomalous consequences. For example, a threat to kill, inadvertently directed to an individual in a case of ‘mistaken identity’, may well engender fear in the unsuspecting recipient not appraised of the circumstances in which the threat has been made. However, this could not be serious harm of the type contemplated by either Parliament or the Refugees Convention. Conversely, instances of what may well have been contemplated as constituting serious harm, may avoid this classification if they take the form of actions which in fact threaten a person’s life or liberty but are not accompanied by any declaration of intent. An example which comes to mind is a failed assassination attempt. As counsel for the respondent, in his written submissions, contended, ‘whether adverse treatment constitutes persecution, involves a consideration of whether the harm is sufficiently serious’. In my view, Parliament did not intend that threats in the form of declarations of intent, can prima facie on their own constitute serious harm.