MZWCL v Minister for Immigration - [2005] FMCA 431

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWCL v MINISTER FOR IMMIGRATION

[2005] FMCA 431

MIGRATION – Protection visa application – whether Tribunal applied wrong test for well founded fear of persecution – whether Tribunal misinterpreted persecution – whether Tribunal misunderstood nature of official quality of persecution – the effect of finding of adequate state protection.

Migration Act 1958, s.36

Chan v Minister for Immigration and Local Government and Ethnic Affairs (1989) 169 CLR 379
M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC
Applicant S70 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 84

Applicant:

MZWCL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 63 of 2004

Judgment of:

Phipps FM

Hearing date:

1 March 2005

Last Submission:

1 March 2005

Delivered at:

Melbourne

Delivered on:

13 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

P.T. & Associates

Counsel for the Respondent:

Mr Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 63 of 2004

MZWCL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks review by way of prerogative writ of a decision of the Refugee Review Tribunal.
The applicant is a citizen of Sri Lanka. He arrived in Australia on

16 August 2002 as the holder of a visitor’s visa. He was accompanied by his spouse and two children.
On 29 August 2002, the applicant, his spouse and children applied for a protection visa. Only the applicant made specific claims under the Refugees Convention. The claims of the applicant, spouse and children are dependent upon the determination of the applicant's claims.
On 11 February 2003, a delegate of the respondent determined to refuse the application. On 6 March 2003, the applicant, his spouse and children applied to the Refugee Review Tribunal for review of the delegate’s decision. By a decision given on 3 December 2003 and handed down on 9 January 2004, the Tribunal affirmed the delegate's decision refusing to grant the protection visa.
On 27 January 2004, an application for review was filed in the Federal Magistrates Court. Directions were given for the filing of Contention of Fact and Law. At the commencement of the hearing, leave was given for the filing of an amended Application and further Contentions were filed. Only the grounds dealt with in the amended Application and further Contentions were pursued.

The applicant's claims

The applicant was a police officer in Sri Lanka, a position he commenced in 1986. He claimed that he was a supporter of the Sri Lanka Freedom Party (SLFP) which is the main element of the opposition party, the People's Alliance (PA) since 1983. His father was a prominent SLFP supporter and organiser.
He claimed that he was compelled to join the police force as a sub-inspector in 1986 because of the JVP activities and discrimination in the provision of government employment. He accepted a position to avoid being recruited by the JVP. He was a good soccer player and it helped him to gain employment as a police officer even though the UNP was in power. He was transferred to a high risk area. He said that JVP threatened people working in the public services and armed services to resign from their positions.
In the 1989 presidential election, he went house-to-house canvassing support for the SLFP. The seat was won by a UNP candidate. He claimed he was transferred due to his political activities and worked in an anti-terrorist unit. His unit apprehended many suspected LTTE members and supporters.
He said that he was a good soccer player and as a result was transferred to Colombo in January 1994. He worked in the Criminal Investigations Department (CID) where he detected various illegal and unauthorised goods belonging to business people and UNP supporters. He claimed he was approached and warned by UNP politicians regarding the detection of goods belonging to their supporters.
In the August 1994 election, he canvassed for a PA candidate and made speeches. He claimed that during this period he received threatening calls from his political enemies. Stones were thrown at his father's house, breaking some windows. His father was assaulted by unknown people.
The PA candidate won the 1994 presidential election. He was appointed to be Presidential Security Division (PSD) on the recommendation of a member of Parliament who was later killed in a bomb blast. He attended numerous advanced security courses. He said his unit's duties involved daily searches of the President's residence. He discovered a suicide bomb jacket in Parliament and hand grenades in an abandoned building close to the President's house. He claimed he was considered by the President as one of his reliable and trusted personal security officers. He said he was seen with the President at every function and was well known to the public as well as his political opponents.
In the 2001 general election the UNP came to power. There were attacks on UNP supporters during this period. He claimed that after the UNP came to power, threatening calls, intimidation and visits increased. The CID investigated some incidents allegedly perpetrated by the PSD while the applicant was a member. Some members of the PSD including its chief were arrested. One of the PSD members suspected to be involved in these incidents was killed by unknown elements. Six officers attached to the applicant's unit were arrested.
The applicant claimed that the UNP government was using the opportunity to arrest, torture, in prison and eliminate their political opponents like the applicant.
The applicant claimed that in May 2002 he was attacked by three people with balaclavas. He informed the police but was aware that without any evidence the police could do nothing. The applicant said that the PSD is responsible for Presidential security arrangements. The applicant came to know that the head of the PSD was involved in criminal activities and that he associated with underworld figures. The applicant became aware that some officers from his unit were also involved in criminal activities and were arrested.
The applicant claimed that the head of the PSD tried to deflect the blame on to others and once asked the applicant to make changes to official police records in a manner which would assist the former chief to deny the allegations against him.
The head of the PSD was suspended. The applicant claimed that although suspended, he was very influential. The applicant feared he warned be harmed for not cooperating with the director. The applicant said he could not escape from the director or the government authorities or its agencies anywhere in Sri Lanka.
The applicant said that he feared revenge from the LTTE because his unit arrested many of their members. He said he could not escape from the LTTE anywhere in Sri Lanka.

The Tribunal's findings

Fear of former director of PSD

The Tribunal found that even if it accepted all of the applicant's material claims regarding his work in the PSD, the pressure that was placed on him by the former director to change police records and the fears he had of the former director, he was not a refugee.
The Tribunal accepted that on the applicant's account, the prosecution of the former director was politically motivated to the extent that the former director would not have been prosecuted if there had not been a change of government. Selected enforcement of law of general application can in some cases constitute persecution. The Tribunal considered that the reverse was happening. There was the removal of an unmerited immunity from the operation of laws of general application. There was no relevant political element to the prosecution of the former director.
As an independent reason, the Tribunal considered that the applicant's fear lacked an official element. The former director had no official role in government. The Tribunal rejected the applicant's claim that he was all-powerful and could do whatever he wishes. Any attempt by the former director to harm the applicant would not be in his official capacity. The Tribunal considered that if the applicant genuinely feared the former director, he could seek police assistance and he would receive effective protection.

LTTE

The Tribunal accepted that the applicant worked as a police officer in a region where he sometimes arrested and charged LTTE members and supporters. It considered that he had no reason to fear the LTTE. He had not been involved in investigating or charging members of the LTTE for approximately a decade. The Tribunal found the applicant's claim that he feared the LTTE most unconvincing. The Tribunal said that there had been a relative calm in hostilities between the government and the LTTE over the past two years or so. Peace talks were proceeding, albeit slowly.
The Tribunal said that the LTTE is not a government organisation and so the applicant's fear could not have an official element. The Tribunal accepted that the LTTE was prone to violence, but it said that the scale was not so significant to mean that LTTE members are uncontrollable by the government or the government is incapable of protecting its citizens from them.

Fear of Political Persecution

The Tribunal accepted that the applicant was a supporter of the SFLP and had been relatively active and quite prominent since 1983. It accepted that he had experienced some level of mistreatment and harassment because of his political activities, the most serious incident being the assault in May 2002. It accepted that stones were thrown at his father's house during the 1994 election. Since this was almost a decade ago, it was not relevant to any present risk faced by the applicant.
The Tribunal rejected some claims of mistreatment. It considered that the evidence produced by the applicant of risk of political persecution because of his general activities with the SFLP was unsatisfactory. The Tribunal said that, despite significant reservations, it accepted the applicant's claims regarding the previous mistreatment that he had been subjected to because of his political opinion and the threats that had been made against him in this regard.
The Tribunal considered country information concerning the political violence in Sri Lanka, measures to curtail political violence and police protection. Having done that, it concluded that the threats made to the applicant were not a true indication of what might happen to him.

It considered that they were attempts to unsettle the applicant. The Tribunal considered that adequate police protection was available.

It rejected the applicant's claim that the police were politically motivated and would not provide him with assistance.
The Tribunal considered that given the preparedness and ability of the police to assist the applicant with his concerns, the harm he feared from UNP supporters did not constitute persecution because it did not have an official quality.
Consequently, the Tribunal said it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The applicant's arguments

Particulars of jurisdictional error relied upon by the applicant are:
a)The Tribunal erred in interpreting or applying the term "well founded fear" of persecution in the definition of a refugee under the Refugees Convention as incorporated by s.36 of the Migration Act1958.
The Tribunal found that the applicant had indeed been assaulted as he claimed in 2002, that he had some property damaged and that he received threats regarding future harm. The Tribunal apparently was willing to accept that the applicant had reported the assaults to the police who had been unable to apprehend the offenders. In all the circumstances of the case, the Tribunal's conclusion that the applicant did not have well founded fear of persecution indicates that the Tribunal did not correctly interpret or apply this element of the definition of a refugee;
b)The Tribunal erred in interpreting or applying the term "persecution" in definition of a refugee under the Refugees Convention as incorporated by s.36 of the Migration Act 1958;
The Tribunal accepted that "the applicant (and his father) has received many threats over a long period of time…". The Tribunal's conclusion that the applicant did not meet the definition of a refugee indicates that the Tribunal erred in not considering possible the pattern of the repeated threats over a long period of time might itself amount to the persecution within the meaning of the Refugees Convention as incorporated by s.36 of the Migration Act 1958; and
c)The Tribunal erred in interpreting or applying the term "for reasons of … political opinion…" in the definition of a refugee under the Refugees Convention as incorporated by s.36 of the Migration Act 1958.
The Tribunal said:
Finally, even if I accept all of the applicant's material claims (apart from the claim that the police did not investigate the home assault because of political influence), given the preparedness and ability of the police to assist the applicant with his concerns, time he fears from UNP supporters does not constitute persecution because it does not have official quality…"

Discussion

The Tribunal, in its reasons, set out the test for "a well founded fear of persecution". There needs to be a genuine fear based upon a "real chance" of persecution. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility (Chan v Minister for Immigration and Local Government and Ethnic Affairs (1989) 169 CLR 379). The first ground argues that the Tribunal substantially accepted the applicant's claims of fact but it did not find that he had a well founded fear of persecution. The submission is that this demonstrates error in that the Tribunal required a higher than "real chance" of persecution.
The Tribunal said at page 23 of its reasons:
Even though the applicant has been previously assaulted and has had some property damaged and has received threats (most of them being indirect) regarding future harm, this does not indicate that he has a well founded fear of persecution. To this end, I note that the applicant (and his father) has received many threats over a long period of time, yet they have not been carried out- with the exception of the assault and property damage on the accused. This provides me with a strong foundation for confidence that the threats are not a true indication of what might happen to the applicant. Rather they are attempts to unsettle the applicant.
In M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC, the Full Court said at [13]:
An allied argument was that the Tribunal should have found that detention with "assault and ill treatment" must constitute persecution. We do not accept this argument. What does or does not constitute persecution is a question of fact, and in any event, as the primary judge pointed out, the ultimate question looks to the future and requires the decision-maker to consider whether the fear of persecution in the future upon return to Sri Lanka is well founded.
Whether the applicant faced a real chance of persecution and so had a well founded fear of persecution, was a question of fact for the Tribunal. The Tribunal did not say that the applicant had not been persecuted in the past. It did not find that the threats of future harm could not amount to persecution. Nor did it not take the threats into account. It said that the threats, which had been made over a long period of time, were not indicative of what may happen to the applicant in the future. The Tribunal set out the correct test of "real chance". Its reasoning does not lead to a conclusion that it applied a higher test. It considered all of the evidence, including the previous assault, property damage and threats. It examined the country information about the current situation in Sri Lanka. It concluded that the applicant did not face a "real chance" of persecution. It was entitled to do so.
The second ground alleges that the Tribunal erred in interpreting or applying the term "persecution". The submission is that the Tribunal discounted as not capable of amounting to persecution a series of repeated threats calculated to "unsettle" the applicant. It was submitted that even one threat, if it puts a person in fear, may be capable of amounting to persecution. Therefore, it is submitted that the Tribunal has failed to take into account a relevant matter
The Tribunal did not say that threats might not amount to persecution. It concluded that the threats were not a true indication of what might happen to the applicant. They were attempts to unsettle the applicant. The Tribunal then went on to say that if the applicant had genuine fears of harm, he could receive adequate protection from the police.
The Tribunal has not ruled out the threats as matters to be taken into account and therefore fallen into error. The Tribunal has considered the threats along with the assault and damage to property and country information and concluded that the applicant would not face a situation in the future which would amount to persecution. The Tribunal has not failed to take into account the threats as a relevant matter.
The third ground alleges that the Tribunal has misunderstood the "official quality" that may be required in the course of persecution. The submission is that there are two aspects to the error. The first is a submission that the Tribunal regarded it as necessary that the relevant persecution have an "official quality". The submission goes on to say that the only sense in which it is necessary that persecution have an "official quality" is in the sense that the authorities of the applicant's country of nationality are unable or unwilling to protect the applicant. The second is a submission that it is irrelevant to the Tribunal’s task to ask whether the perpetrators of violence against an applicant may ultimately be prosecuted or punished, save only that it may show that the state is willing to protect an applicant.
The Tribunal said:
Finally, even if I accept all of the applicant's material claims (apart from the claim that police did not investigate the home assault because of political interference), given the preparedness and ability of the police to assist the applicant with his concerns, the harm he fears from UNP supporters does not constitute persecution because it does not have an official quality.
The Tribunal does not say that the harm the applicant fears cannot be persecution because it does not come from an official source. What it is saying is that even if the applicant's fear of harm is accepted (which is a fear of harm from UNP supporters) there is adequate protection available from the police. The absence of official quality comes because of the availability of the protection. The applicant's submission accepts that the only sense in which it is necessary that persecution have an "official quality" is in the sense that the authorities and of the applicant's country of nationality are unable or unwilling to protect the applicant. This is precisely what the Tribunal finds. There is no error in the finding.
The second aspect of the submission refers to this statement by the Tribunal:
Although the applicant stated that a politician… may be behind some of the threats, this does not advance his claim. Even if this is correct, the politician would be acting contrary to the law and hence be amenable to criminal charges if he harmed the applicant.

The applicant’s submission accepts that a finding that the perpetrators of violence against an applicant may ultimately be prosecuted or punished may be relevant if it shows that the state is willing to protect an applicant. Prior to the statement criticised, the Tribunal found that there was adequate protection available from the police. It's statement about the politician has to be seen in this context. If a politician is behind some of the threats that may be an indication that the threats are politically motivated. But what the Tribunal says is that even if that is so, the politician would be amenable to criminal charges. The laying of criminal charges is part of the way a police force provides protection. The tribunal’s statement is part of its overall finding that police protection was available to the applicant.
Hely J. said in Applicant S70 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 84 at [32]:
Protection in the relevant sense does not mean prevention of harm. Where the alleged persecutor is not the State, the question is whether the State either encourages persecution, or appears to be powerless to prevent it: Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, 258. Whether a State is able to protect its nationals is a factual question for the RRT to determine. The RRT acted upon country information which indicated that there was no reason to believe that, at the present time or in the future, Indian Fijians would not be afforded the general protection of the law.
The Tribunal found as a matter of fact that even if it accepts all of the applicant's claims, adequate protection was available. The Tribunal has not erred in its approach in making this finding. The finding means that the applicant's claim fails.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: