MZ Raj & Ors v MIMIA

[2005] HCATrans 309

[2005] HCATrans 309

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M190 of 2004

B e t w e e n -

MZ RAJ
MZ RAK
MZ RAL
MZ RAM

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 APRIL 2005, AT 11.13 AM

Copyright in the High Court of Australia

MR S.K. KAPPADATH:   May it please the Court, I appear on behalf of the applicant.  (instructed by Ambi Associates)

MS H.M. RILEY:   If it please the Court, I appear on behalf of the respondents.  (instructed by Clayton Utz)

HAYNE J:   Yes, Mr Kappadath.

MR KAPPADATH:   Your Honours, the central question that this application raises is what is the meaning of the term “effective protection” in the context of the definition of “refugee” under the Refugee Convention.  Now, there is authority which holds that the Refugee Review Tribunal must form a conclusion on the effectiveness of protection that is afforded by the state.  This honourable Court, in the case of S152 v The Minister, in referring to effective protection alluded to international standards as being the benchmark or yardstick by which the determination of effective protection is afforded is to be determined.  However, the Court did not proceed to define as to what would constitute the international standards.

HAYNE J:   Do you point to a particular passage in S152 where there is reference to the relevance of international standards?

MR KAPPADATH:   Your Honour, that your Honours will find in paragraph 28 of the joint decision of the majority constituted by the Chief Justice, your Honour Justice Hayne and Justice Heydon.  In paragraph [28] on the first one-third of the paragraph it reads – forgive me, your Honour.  May I refer your Honours to paragraph [27].  At the end of [27]:

The country information available to the tribunal extended beyond the case that was put by the first respondent.  Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom.

Thereafter, in paragraph [28], the Court says:

It is not necessary in this case to consider what those standards might require or how they would be ascertained.  There was no evidence before the tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards.

It is in these two paragraphs that the reference to the phrase “international standards” is used, although without elucidation of what the term connotes or how it is defined.  It may be so that the concept of “international standard” may be hard to define, but there are similar concepts in law which are hard to define but nevertheless exist.  As an illustration, the concept of “exceptional circumstances” in the realm of criminal law is not defined, but is readily identifiable by the courts.  Similarly, the omnipresent “reasonable man” in equity defies definition, but is recognised.

HAYNE J:   Now, the Tribunal in this case at page 27 of the application book, in the paragraph commencing at about line 39 or 40, concluded that:

the Tribunal does not accept that the Sri Lankan government condones or is unable to control such harm.

Does that finding of fact present a hurdle in your way?

MR KAPPADATH:   In my respectful submission, it does not, because what the Tribunal says cannot, in my respectful submission, be equated to mean that the state is, one, willing and, two, able to provide the protection that is contemplated by the definition.  And the statement by the Tribunal is, with due respect, perfunctory, because it is not founded on any analysis of the evidence before the Tribunal.

HAYNE J:   Well, I think account may have to be taken of the balance of page 27 over to at least the first four lines and probably beyond that on page 28 where the Tribunal says, for example, that:

The applicant himself introduced a number of pieces of evidence or claims where a police investigation or a court case was an element of the action.

MR KAPPADATH:   That is correct.  In fact, in the present case there was copious amounts of evidence both submitted by the applicant about complaints made to the police and also a large amount of information sourced by the Tribunal which in itself contained materials to suggest that there was insufficient effectiveness provided by the states.  Although there was in place a police force, criminal law system, administrative justice system, the state was not in a position to effectively afford protection to its citizenry.  The question essentially is, by what yardstick or standard does the Tribunal have to measure the level of protection afforded? 

HAYNE J:   Yes.

MR KAPPADATH:   Following the decision of this honourable Court in S152, there has been some controversy or divergence of view expressed by the Federal Court.  I have referred to two decisions, one of Justice Mansfield in the case of A99 v The Minister and one of Justice Selby in the case of SHKB, where their Honours have referred to the assessment of protection afforded by the state with reference to international standards.  And, in fact, Justice Mansfield has gone a step ahead to say that the failure of a tribunal to assess that effectiveness would in itself constitute a jurisdictional error, presumably on the basis that that is a question of law that the tribunal is obliged to ask in its determination.

The learned judge, in the appeal from which this application is brought, has adopted a view that is contradictory to the decision of Justice Mansfield and Justice Selby in the two cases I have referred to, and therefore there appears to be a divergence of view.  What is sought by this application is guidance from this honourable Court to formulate guiding principles as to how the question of the availability of effective protection by a state is to be determined.  That, in my respectful submission, is the central question that this application brings.

Your Honour, in my respectful submission, the determination of the question of effective protection itself involves a subjective and an objective element, the objective element being whether there is an existence of a police force, judiciary and system of administration of justice or such instrumentalities of the state and the state’s ability and willingness to afford protection – that being the objective element – and the subjective element being whether that effective protection by the state is available to the claimant or the applicant or a group of persons to which the claimant belongs.

The fact that an applicant or a claimant is found to have been persecuted or at the risk of harm and forced to flee the country is in itself indicative that any system of administration of justice is not effective enough to afford the necessary protection.  That is to say, administration of justice needs to be preventative as well as remedial.  So the question that remains unanswered is, what is the test that the Tribunal must apply in addressing the question whether effective protection is afforded to a claimant before it can decide that the inability or the unwillingness of the claimant to avail of that protection is reasonably justified?

However, your Honours, in the present application the Tribunal, in its findings and reasons, at page 27 of the application book, without dealing with the evidence before it making any material findings of facts on the constituent components of the question whether there was effective protection offered by the state, summarily concludes that it:

does not accept that the Sri Lankan government condones or is unable to control such harm.

But the underlying reasoning process based on the facts that it has found is absent.  The Tribunal has accepted:

that the applicant was at risk of politically motivated harm –

and also that there is a risk that he will continue to suffer such harm if he is returned and continues with his activities in politics.  That being the central question that is raised by the application, in my respectful submission, guidance is required from this honourable Court for the resolution of the divergence of views expressed by the federal courts on this question.  That ends the submission, your Honour.

HAYNE J:   Yes, thank you, Mr Kappadath.  We need not trouble you, Ms Riley.

The Refugee Review Tribunal concluded that the government of Sri Lanka was not shown to condone or be unable to prevent what the Tribunal called “election‑related thuggery”.  In view of that conclusion, an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  It follows that special leave is refused and must be refused with costs.

The Court will adjourn to establish the video link in Court 8F at 12.15.

AT 11.30 AM THE MATTER WAS CONCLUDED