MZ RAJ v MIMIA

Case [2004] FCA 1261

FEDERAL COURT OF AUSTRALIA

MZ RAJ v Minister For Immigration And Multicultural And Indigenous Affairs [2004] FCA 1261

MIGRATION – appeal from Federal Magistrates Court – protection visas – claim that Sri Lankan authorities would not be able to provide effective protection to applicants against non-state agents – whether magistrate should have found that tribunal fell into jurisdictional error – whether tribunal adequately addressed whether authorities were willing to provide husband with protection – whether tribunal should have tested the protection available against “international standards”

WORDS AND PHRASES – “international standards”

Fleming’s The Law of Torts (9th ed, 1998) at 118

MZ RAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 91 affirmed
Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 205 ALR 487 distinguished
Osman v United Kingdom (1998) 29 EHRR 245 discussed
Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 not followed
Minister for Immigration and Multicultural and Ethnic Affairs v Khawar (2002) 210 CLR 1 cited
SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [36] not followed
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 cited
Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 not followed

MZ RAJ, MZ RAK, MZ RAL AND MZ RAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 343 of 2004

HEEREY J
29 SEPTEMBER 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 343 OF 2004

BETWEEN:

MZ RAJ, MZ RAK, MZ RAL AND MZ RAM
APPELLANTS

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

29 SEPTEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal is 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

VICTORIA DISTRICT REGISTRY

V 343 OF 2004

BETWEEN:

MZ RAJ, MZ RAK, MZ RAL AND MZ RAM
APPELLANTS

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HEEREY J

DATE:

29 SEPTEMBER 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The appellants, citizens of Sri Lanka, are a husband, wife and their two children.  They arrived in Australia on a one month visitor visa on 5 February 2001.

  2. On 2 March 2001 the appellants lodged with the Department applications for protection visas.  On 6 February 2002 the applications were refused by a delegate of the Minister.  On 13 June 2003 the Refugee Review Tribunal affirmed the delegate’s decision.

  3. An application for review to the Federal Magistrates Court (Hartnett FM) was dismissed on 27 February 2004: MZ RAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 91. The appellants now appeal.

  4. The husband was active in politics in Sri Lanka on behalf of the United National Party (UNP).  He claimed a well-founded fear of persecution at…

Continue reading MZ RAJ v MIMIA

Sign in free to access the full text

Details
AGLC
MZ RAJ v MIMIA [2004] FCA 1261
Case
[2004] FCA 1261
Decision Date

CaseChat Overview and Summary

The case of MZ RAJ v MIMIA involved the husband, a Sri Lankan national, seeking a protection visa from the Australian government on the grounds of political persecution. The matter was heard in the Federal Magistrates Court and subsequently appealed to a higher court. The husband argued that the Tribunal had not adequately considered the protection available to him in Sri Lanka or whether the authorities were willing to provide such protection. Furthermore, he claimed that the Tribunal did not appropriately evaluate the available protection against international standards. The wife’s claim based on her Tamil ethnicity was not contested in the Federal Magistrates Court.

The central legal issue before the court was whether the husband met the criteria for a protection visa under the Migration Act 1958 (Cth). Specifically, the court had to determine if the husband qualified as a refugee as defined by the 1951 Refugees Convention, which includes individuals who, due to a well-founded fear of persecution for reasons such as political opinion, are unable or unwilling to avail themselves of their home country’s protection. The Tribunal had to assess the husband’s experiences of violence and threats, which he attributed to his political activities, and whether these incidents constituted persecution under the Convention.

The court examined the husband’s testimony detailing numerous instances of violence and threats against him and his family due to his political activities. The Tribunal considered the husband’s active involvement in the United National Party (UNP) and his participation in various political campaigns. Despite the husband’s claims of repeated attacks, property damage, and threats, the court found that these incidents did not necessarily meet the threshold of persecution as defined by the Convention. The court held that while the husband faced significant challenges and danger, the government’s inability or unwillingness to protect him did not rise to the level of persecution under international law. Consequently, the court dismissed the husband’s application for a protection visa.

The court’s decision was final, and the appeal was dismissed with costs. The court found that the husband’s experiences, while serious, did not equate to the level of persecution required to qualify for refugee status under the Convention.

Orders

Orders of the court

1. The appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J
First, counsel contended that the Tribunal did not address the issue of whether the authorities were willing to provide the husband with protection. Secondly, he said the Tribunal failed to test the protection that would be available for the husband in Sri Lanka against “international standards”. The Tribunal’s rejection of the wife’s claim on the ground of her Tamil ethnicity was not challenged in the FMC.The Tribunal’s decision As the Tribunal noted at the outset of its reasons, it was required by s 65(1) of the Migration Act 1958 (Cth) (the Act) to decide whether it was satisfied that the husband met the criterion for a protection visa provided by s 36(2) of the Act, that is to say whether he was a refugee within the meaning of the Refugees Convention of 1951 as amended by the 1967 Protocol. 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 unwilling, to avail himself of the protection of that country…” In the course of a brief discussion of the High Court jurisprudence on the Convention definition the Tribunal said:“The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.”The correctness of this statement of the law was not challenged before the FMC or on appeal. The Tribunal recorded the husband’s evidence as follows. He was born in 1954, had obtained a diploma in hotel management and cookery and had been the proprietor of import/export businesses. He left Sri Lanka because he feared for his personal safety, and that he would be persecuted and killed by his political opponents. He did not think the Sri Lankan authorities could protect him. He had been an ardent supporter and active member of the UNP, as had his wife. He contested a provincial council election in April 1999 in the Negombo electorate, Gampaha district, and worked openly for the party in presidential and provincial elections. He engaged in political activities such as addressing meetings and taking part in rallies, protest marches and poster campaigns. He had spent a couple of million rupees for political purposes. He said that he had been the subject of major incidents of violence including the following:(1)In March 1997 he was travelling in his car with an MP when they were attacked with guns and assaulted. The vehicle was damaged. They escaped death. The incident was reported to the police but no action was taken;(2)In January 1999 around 7 pm the husband and wife were travelling when a group of political opponents attacked their vehicle and followed them to the husband’s cousin’s house. Over 100 people shouting anti-UNP slogans surrounded the house with guns and other weapons. They fired at the vehicle and threw grenades and damaged the vehicle and others that were parked there. They threw a grenade at the house, but it did not explode. Several calls were made to the police but they only came a couple of hours later. At 11 pm an MP called Gunasekera said that if they stayed on it would become more dangerous. He asked the husband’s cousin to take him to his hotel. The husband was shot and injured while getting into the car. He went to the police to seek an escort but some political opponents were at the police station so he instructed the driver to take him to hospital. The husband told MPs from neighbouring areas what was happening. They said they could not do anything but contact the police. Still the police did not attend. At midnight the husband contacted the UNP party secretary who assured him he would send the police. A couple of hours later the police finally arrived and called the bomb squad. The husband and wife were escorted to their home around 3 pm [sic – presumably am];(3)The following day the husband went back to his cousin’s home because the UNP leader Wikramasinghe wanted to meet and discuss the incident. The husband went from there to the police station with the UNP leader and party secretary to complain about the lack of action the previous day. On the way to the police station their vehicle was attacked again and damaged by a crowd of 50, including a candidate from the rival PA party and his supporters;(4)In March 1999 the husband went to another cousin’s house. A gang of political opponents rushed into the house pointing a gun at the husband’s mother’s chest and wanted to know where the husband was. He ran out the back door to a neighbour’s house. The gang then attacked his vehicle. The husband’s mother complained to the police but no action was taken. The husband’s mother filed a case in the courts which is still pending;(5)On 18 December 1999 the husband was on the stage with a well-known politician, Lucky Algama, when Algama and twelve others were killed by a bomb thrown at the stage. The husband escaped with a few injuries. The police did not provide enough security, only four for a crowd of 5,000;(6)Three days later the husband parked his vehicle on the road. PA people came and cut the tyres and damaged the vehicle. They had swords and guns. An enquiry was held but no action was taken;(7)On 15 September 2000, while the husband was away with the children, about eight armed men in military clothes entered the house and assaulted and threatened the wife, calling her a Tamil Tiger woman and saying they had come to abduct the family. They ransacked the house and damaged the furniture. The matter was reported to the police but no action was taken;(8)On 7 October 2000, close to the elections, their home was attacked again and various things damaged. The husband reported it to the police but no action was taken;(9)The husband and wife received frequent threatening phone calls. The husband was threatened for his political activities and for supporting the wife’s cause and the Liberation Tigers of Tamil Eelam (LTTE);(10)Stones were thrown at their home from time to time. The children were at risk of being kidnapped and injured and the husband had to take counter measures against this;(11)On 21 December 2000 the husband visited a polling booth to hand over lunch packages to polling agents for the UNP. Returning to his car he saw political opponents attacking one of his supporters. He was threatened and glass on his car was broken, the tyres were cut and his gold bracelet taken;(12)The husband received two threatening letters. One said he would be killed in 14 days;(13)The husband’s brother was kidnapped on 20 October 1989. He was removed by men in police uniforms. The husband enquired at two police stations and of the then UNP PM and the Red Cross. He has since heard that the brother was killed on the orders of police. However, the Ministry of Defence has stated that it had made enquiries of the police and security forces and both had stated that the brother had not been arrested.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.