Mzraj v Minister for Immigration
[2004] FMCA 91
•27 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZRAJ & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 91 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545
Sowrimuthu v Minister for Immigration [2001] FCA 300
Paramanayagam v Minister for Immigration [2000] FCA 1744
Minister for Immigration & Multicultural & Indigenous Affairs v Khawar (2002) 187 ALR 574
Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182
Minister for Immigration & Multicultural Affairs v Kandasamy [2000] FCA 67
| Applicants | MZRAJ, MZRAK, MSRAL & MZRAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ837 of 2003 |
| Delivered on: | 27 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 19 February 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicants: | Mr Palmer |
| Solicitors for the Applicants: | Ambi Associates |
| Counsel for the Respondent: | Dr Beaton-Wells |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The application is dismissed.
The first and second named applicants to pay the costs of the respondent as agreed and failing agreement as determined by the Court upon application made to it by either party.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ837 of 2003
| MZRAJ, MZRAK, MSRAL & MZRAM |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicants made application for review to this Court on 1 August 2003. That application was amended by application filed 28 October 2003. The applicant sought that pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.475A, 477, 478 and 479 of the Migration Act 1958 (Cth) ("the Act") this Court review a decision of the Refugee Review Tribunal ("the RRT") made on 13 June 2003.
History
The applicants are a husband and wife and their two sons. The first applicant was born on 7 June 1954; his wife on 19 September 1950 and their two sons on 16 December 1991 and 14 March 1993 respectively. All are Sri Lankan nationals whom arrived in Australia from Sri Lanka on valid passports on 5 February 2001. On 2 March 2001 the applicants lodged application for Protection visas under the Act. By letter dated
6 February 2002 the applicants were advised that a delegate of the respondent had refused a Protection visa to the applicant husband and his family unit members included in his application. On 14 February 2002 the applicants applied to the Refugee Review Tribunal for review of the delegate's decision. A hearing was conducted by the Tribunal on 21 May 2003 at which time the applicant husband, his wife and the applicant's brother gave evidence. On 4 July 2003 the RRT handed down its decision affirming the decision of the delegate.
Applicants’ claims
In essence the first applicant claimed to fear persecution based on his political opinion and his wife claimed to fear persecution consequent upon her Tamil ethnicity and the political activities of her husband. It was initially claimed that as a prominent member and supporter of the United National Party (UNP) the first applicant feared harm at the hands of political opponents, namely members or supporters of the opposing People's Alliance (PA). However, following the election to government of the UNP in 2001 the first applicant's claims focused instead on a fear of harm by members or supporters of the UNP due to internal political rivalries. There were no separate claims made by or on behalf of the third and fourth applicants.
In the proceedings before me the applicants argued that the Tribunal had erred in approaching the issue of the applicant husband's persecution on the basis that:
i)it had to be shown that the government would not try to protect the applicant husband because of his political beliefs; and
ii)in any event, the Tribunal applied the incorrect test, which is not the attitude of the government but rather the effectiveness of the law enforcement agency in protecting the applicant.
Ground (i) above was not pursued in submissions made to the Court beyond the written contentions of fact and law filed by the applicants on 10 November 2003.
Background
Under s.65(1) of the Act a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act, as in force before 1 October 2001, provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol. Further criteria for the grant of a Protection (Class XA) visa subclasses 785 and 866 are set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 respectively. Under those provisions, family members are derivatively entitled to a protection visa on the alternative basis that they are members of the same family unit as an applicant who is found to be a refugee. However, all applicants must satisfy the remaining criteria. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Convention defines a refugee as any person who:
Owing to a 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, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable, or owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
The key elements to the Convention definition are:
i)an applicant must be outside his or her country. Clearly, the applicants were;
ii)an applicant must fear persecution which pursuant to s.91R(1) of the Act, must involve "serious harm" and systematic and discriminatory conduct. Persecution may be directed against a person as an individual or as a member of a group. 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 (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233). Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors;
iii)the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The persecution feared need not be solely attributable to a Convention reason, however, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared (section 91R(1)(a) of the Act);
iv)an applicant's fear of persecution for a Convention reason must be a "well founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a well-founded fear of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention reason; and
v)an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality. Whenever the protection of the applicant's country is available and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.
The applicant husband’s claims
The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a refugee as described above. It then turned to consider the applicant's claims and evidence. In outline it summarised them as follows:
a)the applicant claimed his occupation to be business – politician. He travelled to Australia on two occasions in 1996 and arrived on the last occasion on a Sri Lankan passport issued in Colombo in December 1997. Whilst in Sri Lanka he obtained a diploma in hotel management and cookery in 1986 and from that time onwards he had been the proprietor of his own businesses. He left Sri Lanka legally and had no difficulties obtaining a passport;
b)the applicant said he left Sri Lanka as he feared for his personal safety. He said he would be persecuted and killed by his political opponents. He had already experienced some difficulties. He did not think the Sri Lankan authorities could protect him. The applicant wife said she left Sri Lanka because of death threats to her husband, herself and the children. She would be persecuted by their political opponents due to her and her husband's political involvement and her ethnicity. She claimed the authorities would not protect her. The applicant said that he was a very active politician in Sri Lanka and prominent in the forefront of party politics and Sri Lankan elections and as such faced political persecution extending to life threatening and tragic situations forcing him to escape his country with his family in order to save their lives. He was an ardent supporter and active member of the UNP as was his wife. Some of the major incidences which he described were as follows:
i)in March 1997 he was travelling in his car with an MP when they were attacked with guns and assaulted. They escaped death. The vehicle was damaged, it was reported to the police but no action was taken;
ii)in January 1999 the applicant was travelling with his wife when a group of political opponents and their supporters attacked his vehicle and followed the applicant to his cousin's house, over 100 of them surrounding the house with guns and other weapons and shouting anti-UNP slogans. They fired at his 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 said that if the applicant stayed on it would become more dangerous. He asked the applicant's cousin to take him to his hotel. He was shot and injured while getting into the car. The police were contacted but did not attend. Later that evening the police finally arrived and called the bomb squad. The applicants were escorted to their home;
iii)in March 1999 the applicant went to another cousin's house. A gang of political opponents rushed into the house pointing a gun at his mother's chest and wanting to know where the applicant was. The applicant ran out of the backdoor to a neighbour's house. They attacked his vehicle. The applicant's mother complained to the police but they took no action. The applicant's mother filed a case in the courts which is still pending;
iv)on 18 December 1999 the applicant claims to have been on the stage with Lucky Algammah when Algammah and twelve others were killed by a bomb thrown at the stage. The applicant escaped with a few injuries. He said the police did not provide enough security;
v)three days later the applicant had parked his vehicle on the road. PA people came and cut his tyres and damaged his vehicle. An inquiry was held but no action was taken;
vi)on 15 September 2000 whilst the applicant was away with the children about eight armed men in military clothes entered the house and assaulted and threatened the applicant wife. They ransacked the house and damaged the furniture. The matter was reported to the police but no action was taken. On 7 October 2000, close to the elections, the applicant's home was attacked again and various things damaged. The applicant reported it to the police but no action was taken;
vii)the applicant and his wife received frequent threatening phone calls. Stones were thrown at the house from time to time and the children were at risk of being kidnapped and injured;
viii)the applicant stated on 21 December 1999 he visited a polling booth to hand over lunch packets to the polling agents for his party. He did this in his capacity as zonal organiser for the UNP in Negombo. Returning to his car he saw the UNP's political opponents attacking one of the applicant's supporters. He was threatened himself and then heard a loud noise from where his car was parked. The glass was broken and the tyres were cut and his gold bracelet missing. Photocopies of two threatening letters which were translated were presented to the Tribunal. One said the applicant would be killed in fourteen days. Then it said "we will come to your place in three days at midnight" and the applicant had to be ready with a certain amount of money or it would be his last step;
ix)the applicant referred in discussing state protection to the fate of his brother C F. The applicant said that even though he himself had a high profile his brother was kidnapped on the way to the shop from the applicant's home on 20 October 1989. Many eye-witnesses saw him being removed in a police jeep by men in police uniforms. The applicant made an entry at two police stations. He even went to the then UNP PM. He sought Red Cross assistance but even they could not help. The applicant's brother was very outspoken like the applicant. He has since heard that his brother was killed on the orders of police even though innocent. A copy of a letter from the Ministry of Defence dated January 1990 was before the Tribunal stating that inquiries were made of the police and the security forces and both had stated that the applicant's brother was not arrested. Further, there were copies of a letter in Singhalese and English from the ICRC in Sri Lanka dated September 1991. That letter stated that the ICRC had not been able to trace the applicant's brother. The applicant said he did not apply for protection while on his earlier visits to Australia because he had no problems at that time.
Various documents, news reports, articles, photographs and other reports were before the Tribunal. Country information was also available to the Tribunal. A post hearing submission was received by the Tribunal on 30 May 2003 from the applicant's advisers.
Country information indicated that in late 2001 the PA lost the national parliamentary election and that the UNP's leader then occupied the post of Prime Minister and formed the cabinet. DFAT provided a number of assessments of the treatment of UNP supporters under the PA government. Country information dated 20 August 2001 was as follows:
Our advice in the past has been that all citizens can avail themselves of the protection of law enforcement authorities. However, the reliability and efficiency of authorities in responding to or investigating complaints has been mixed.
Recent (very public) failures of police to respond to complaints are partly attributable to weaknesses of enforcement mechanisms but sometimes also linked to corruption or political pressure. There is a degree of politicisation of the police force in Sri Lanka. For example, during elections police have been known to be used by the ruling party for political purposes and to turn a blind eye to acts of political violence against opposition parties. Anecdotally at least, persons affiliated to opposition parties have occasionally found it difficult to obtain police protection or to access justice.
The findings of the RRT
The Tribunal concluded that it was not satisfied the applicants were persons to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The RRT accepted that the first applicant was a political candidate and was socially well-connected and well-connected within the UNP. It accepted that the incidents of political violence including property damage and threatened physical violence did occur. The Tribunal had doubts about whether other matters raised by the applicant did occur. Further, it noted that the applicant had little facility to engage in a discussion of the content of politics in Sri Lanka, despite being very familiar with the characters and the processes. It noted this was consistent with the profile of a one-time unsuccessful candidate for election to a middle level of government.
Although the Tribunal thought it possible the applicant had embellished his experiences somewhat it accepted that the applicant was at risk of politically motivated harm in Sri Lanka. It noted that if he changed his mind and decided to continue in politics upon return to Sri Lanka he would again be at risk. However, the Tribunal did not accept that the Sri Lankan government condones or is unable to control the harm that the applicant thought would befall him. It said:
The country information establishes that the UNP is not a persecuted group and UNP voters are not at risk of persecution within the meaning of the Convention despite the levels of political violence and the questionable performance of some police. Laws and policies exist and are enforced and enforceable against election-related thuggery even if persistence may be needed to engage the interest of the police as the first port of call for the crime victim. 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. The applicant has really done little to assert his rights.
The Tribunal was not persuaded that the first applicant's claim of having been a victim of rivalries within the UNP was true. Given that this claim was made only after the UNP's elevation to power in Sri Lanka the RRT considered that it had been contrived for the purposes of his application. However, the RRT also went on to state that:
Even if (the claim) was true, and even with the accession of the UNP to power in the 2001 elections, the Tribunal would not be satisfied that the applicant was at risk of harm that would be condoned or uncontrollable by the Sri Lankan authorities.
Based on these findings the Tribunal did not accept that the applicant faced a real chance of political persecution within the Convention meaning.
The Tribunal also did not accept that the applicants faced persecution for the reason of the second applicant's Tamil ethnicity. But this ground was not challenged in the proceedings before me.
Consideration
In essence what the applicants argue is that the Tribunal did not consider the central factual question as to whether effective protection was or was not available to the first applicant. The applicants argued the effectiveness of state protection was a particularly important issue in the case because of the findings by the Tribunal that the applicant husband was at risk of politically motivated harm in Sri Lanka and should he return and continue in politics he would again be at risk. The risk of harm was said to arise from non-state agents, namely from supporters of political parties opposed to the applicant husband or from supporters of opposing factions within his own party. The applicant submitted that in order for the state's protection to be protective, a state must be both willing and able to protect the individual concerned from harm from the non-state agents. The applicants submitted that a finding that the state does not condone the actions of a non-state agent and is able to control them is inadequate because it says nothing about whether the state will control those actions. The applicants submitted that the Tribunal failed to properly address the question of the effectiveness of state protection.
Indeed, the applicant submitted that the Tribunal never turned its mind to the above issue. It referred to the decision of Lindgren J at Sowrimuthu v Minister for Immigration [2001] FCA 300 at 106:
The availability of protection in the country of origin or nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for Convention protection rests.
And Merkel J in Paramanayagam v Minister for Immigration [2000] FCA 1744 at 8:
.. It is necessary that the decision maker form a conclusion about the effectiveness of the relevant State protection and do so on material presented by the claimant or on material otherwise available to the decision maker.
Harm inflicted by non-state agents for a Convention reason cannot constitute "persecution" for the purposes of the Convention unless it is "officially tolerated or uncontrollable by the authorities" (Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 at 233 per Brennan CJ). Where state authorities are able to offer effective protection from non-state persecution an applicant's fear of such persecution will not be well-founded (A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545 at 38). In addition, official inaction to protect a person from harm by non-state agents may be capable itself of constituting persecution where it is "selective and discriminatory" for a Convention reason (Minister for Immigration & Multicultural & Indigenous Affairs v Khawar (2002) 187 ALR 574 per Gleeson CJ at 29 to 31, per McHugh and Gummow at 84 to 85, per Kirby J at 115).
Read fairly and as a whole the reasons of the RRT indicate that it considered whether or not protection was available to the applicants from the Sri Lankan police with a view to determining whether or not their fear of harm by political opponents or rivals was well-founded. This test was identified and applied by the Tribunal.
The RRT was not satisfied that the politically motivated harm that the applicants may experience on return to Sri Lanka would be condoned or uncontrollable by the Sri Lankan authorities. The Tribunal did address the possibility that any police inaction was itself politically motivated and was justified in doing so in response made to the claims by the applicants themselves and by the existence of country information (as referred to earlier in these reasons) that suggested a degree of politicisation of the police force in Sri Lanka.
The RRT expressly considered both the attitude of the Sri Lankan authorities towards political violence and their ability to control such harm. Although the applicants may disagree with the assessment made by the RRT, that does not go to jurisdictional error. It is a matter that is relevant to the merits of the RRT's decision only. In any event, the relevant standard of protection is not protection that constitutes an absolute guarantee of safety or totally immunity from harm. (Sowrimuthu v Minister for Immigrationand Multicultural Affairs (2001) FCA 300 at 54). An examination of the Tribunal's reasons in my view indicates that it considered whether the applicants sought and failed to obtain protection from the state authorities and specifically considered the state's ability in a practical sense to provide protection.
It is clear that the State must be willing and able to provide effective protection. It is also clear that the Tribunal must form a conclusion about these matters - that is, all those material questions of fact raised by the material and evidence before it whether presented by the claimant or otherwise available to it (A v MIMIA (1999) 53 ALD 545). However, the Tribunal's reasons should be read fairly and as a whole and not construed minutely. An explicit formulation is not necessary. The applicants' argument really hinges on submissions that the words “not condone” cannot be equated with the word “willing”.
The question is one of substance. In my opinion the RRT did address the claims made. There was evidence before the Tribunal establishing the existence of effective law enforcement and judicial systems in Sri Lanka and of the respect of the Sri Lankan government for human rights. The availability of protection in the country of origin or nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for Convention protection rests.
In A v Minister for Immigration & Multicultural Affairs (1999)
53 ALD 545 the Full Court made the following observations concerning the approach to be taken in relation to the question of whether effective protection is available: firstly, there is no "golden rule" that a person may never be given refugee protection if the person comes from "a democratic country governed by the rule of law and with generally effective judicial and law enforcement institutions" (at 39). Secondly, the proposition that "a person claiming refugee status is not ordinarily entitled to rely upon the supposed inadequacy of reasonable state protection available to him or her if it is not inferior to that available to a fellow citizen at risk of serious criminal harm for non-Convention reasons" may need to be treated with caution (at 40). Thirdly, the Court rejected the presumption which had been recognised in the Supreme Court of Canada in Re Attorney General (Canada) and Ward (1993) 103 DLR 1 that nations are capable of protecting their own citizens and stated that the conclusion of the primary judge, Nicholson J:
there is no foundation in authority or principle which should lead this Court to accept the (Minister's) submission for the existence of a presumption in terms of Ward
is plainly correct (at 41).
Fourthly, the Court stated:
The broad proposition that there must be information or material available to the decision maker from some source or sources on the issue of effective protection
And added:
In some cases the claimant may have to do little more than to show that he or she falls within a particular class of person or possesses particular attributes to make out want of effective protection as the basis for a well-founded fear of persecution and inability or unwillingness to avail itself of the relevant protection. In other cases the claimant may face a very difficult task indeed (at 43).
There was material before the RRT both as to the effectiveness of the Sri Lankan authorities protection of the applicants and ultimately the treatment of this material was a matter for the RRT not for this Court. The RRT addressed the issue of whether the applicants could be provided by the State with the requisite level of protection. There can be no guarantee no matter how effective state protection is that an incident of ineffectiveness will not occur but that possibility does not signify that a person is unable “to avail himself or herself of state protection” or that his or her fear of persecution is well-founded for the purposes of the Convention definition of refugee. (Minister for Immigration & Multicultural Affairs v Kandasamy [2000] FCA 67 at 51 per Whitlam and Carr JJ).
I am satisfied that the findings of the RRT were open to it on the material, that it made no error of law in arriving in those findings and that it complied with s 430(1) of the Act in relation to its findings.
Accordingly, the application is dismissed and the first and second named applicants shall pay the costs of the respondent.
I, Sophie Killen, certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 27 February, 2004