MZXNB v Minister for Immigration
[2007] FMCA 1004
•7 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXNB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1004 |
| MIGRATION – Administrative review – protection visa – review of Refugee Review Tribunal decision – jurisdictional error. |
| Migration Act 1958, s.424A |
| Applicant: | MZXNB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1410 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 June 2007 |
| Date of last submission: | 7 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Randall |
| Solicitors for the Applicant: | Mr Randall (pro bono) |
| Counsel for the Respondent: | Ms S.A. Burchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 9 November 2006 be dismissed.
The first respondent's name be amended to Minister for Immigration and Citizenship.
The applicant pay the first respondent’s costs fixed at $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1410 of 2006
| MZXNB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
The applicant in this matter arrived in Australia on 6 May 2000 and applied for a protection visa on 21 November 2002. The delegate originally decided to refuse to grant the protection visa on 17 December 2002, following which the applicant sought review in the Refugee Review Tribunal. He then applied to the court and the matter was remitted for rehearing before a differently constituted tribunal.
The earlier proceedings in this court were the subject of consent orders and related to the operation of s.424A. Those proceedings appear to have no bearing on the decision that I am considering or the matters before me today.
The decision that I am concerned with is one made on 11 October 2006. The applicant, in his claims for protection, relied upon injuries suffered by him and his wife that occurred in Sri Lanka - apparently in consequence of him operating a motor workshop, Gunasekera Motors, from 1993 to 1998. He sets out in his original application that he faced an unfortunate incident when he was undertaking sales in the business of supplying motorcycle parts and repairing motorcycles.
In his application, albeit in different handwriting, he goes on to make a claim of persecution because of his father's political profile, that his father was a member of parliament in Sri Lanka and because of his involvement and activities in politics. He also relied upon the fact that his brother was a member of the armed forces.
Significantly, the business provides services to the government and to the army. There were findings by the tribunal to the effect that the business had been a contractor or supplier to the Ministry of Defence for the years 2000 through until 2003. The tribunal noted that for part of that period, the UNP defeated the PA government and that although the applicant and his father were members of the SLFP, the business continued to receive government contracts from the Ministry of Defence, regardless of which political party held power in government.
The tribunal also examined the nature of the persecution alleged, saying at p.16:
The submission states that their client was not persecuted during the two-year period the offenders were imprisoned. Nevertheless, he was persecuted in terms of the UN Refugee Convention. During the incident of 14 May 1998, their client was subjected to threats by people he believed to be Tamils that he and his family would be killed if he did not convince his younger brother to leave the intelligence section of the Sri Lankan army. He and his family was the victim of persecution for political reasons.
Under the “agents of persecution principle”, the act of persecution may be committed by any person or group and it will be Convention persecution if the government is unable or unwilling to protect the victim. It is therefore immaterial whether the persecutor are the LTTE or just two offenders. In this case the two offenders committed an act of persecution for a political reason.
The fact that the Sri Lankan government was unable to protect a number of its own very senior people including high ranking army officers as evidence that the Sri Lankan government is unable to protect its citizens from the depredations of hostile political groups (be they only two people) and submit that the fact the police were able on one occasion to apprehend two offenders is not sufficient to justify a conclusion to the contrary.
Whilst the Sri Lankan government may want to protect its citizens and have in place a security apparatus that in theory should be able to protect its citizens the reality is that they are hard pressed to counter the ongoing and increasing threat by the LTTE and at the Tamil groups. It will be unable to offer the necessary state protection to their client should he returned to Sri Lanka in light of the risk of violence to him.
The tribunal went on at p.24 to make some specific findings, including:
The tribunal finds that some rogue Tamil element was responsible for the threat to the applicant and possibly for any assault on his brother in late 2001 or early 2002, because if it had been the LTTE or any other group, the tribunal would have expected that the harassment would have been ongoing, if not worse, while the assailants were in prison.
Further, the tribunal says:
If there was any political motivation, the harassment from the phone calls, visits and abuse would have been expected to have been ongoing even during the period the assailants were in prison by other supporters of the LTTE or any oppositional political group.
The tribunal then goes on to consider under a heading Particular Social Group whether or not there was a member of a particular social group with respect to his or his family's involvement in the SLFP, including:
Although as a member of his family and supporter of the SLFP the applicant can be a member of a particular social group, the evidence provided by the applicant and the reason for the assault on him and his family has been about the applicant's business dealings with the Sri Lankan Defence Force and the fact his brother is in the army, not because of his father's politics or that of the applicant.
The tribunal went on to state:
Even if the Tribunal found that the applicant’s assailants were associated with the LTTE, the applicant reported the matter to the police. The assailants were arrested, tried and imprisoned. The applicant wife’s brother reported the fire to the police. The applicant wife reported the assault on her to the police. The applicant’s father reported the assault to the police. There is no suggestion that the police refused to take any action following these reports. Even if the Tribunal should accept that the threats to the applicant, the harassment and assault on his wife, the assault on his brother and father were politically motivated or were for reasons of the applicant’s membership of a particular social group being membership of his family (father’s political activities), politically active member of the SLFO, or politically active member of a political party in Sri Lanka, another issue is whether the Sri Lankan government is unable or unwilling to protect him.
The tribunal then turned its mind to the question of the availability of state protection, saying:
The issue of the adequacy of a state protection was summaries in Svecs v MIMA (1999) FCA 1507 where Hely J remarked at 26 that:
‘The issue is not whether the authorities can guarantee that the applicants will not suffer harm for a Convention reason, but whether, in the language of the Full Court in A, B & C v Minister for Immigration & Multicultural Affairs [1999] FCA 116 at par 42, Latvia has "effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort said to be feared" by the applicants.’
In the remote event that the Tamil assailants would attempt to harm him on his return to Sri Lanka, although the applicant believes that the State cannot protect him in Sri Lanka, the Tribunal is satisfied from country information outlined above that Sri Lanka would be willing and able to offer him effective protection because Sri Lanka has a functioning independent judiciary in place and police who can provide this protection. The applicant sought and received protection in the past with his assailant’s being caught, convicted and imprisoned. The applicant is a member of the SLFP and his father was a member of the SLFP party and a Member of Parliament. This currently is the ruling party in Sri Lanka and both the Prime Minister and President of Sri Lanka are from this party. The police force has since late last year been placed under the Minister for Defence (US State Reports 2005, 8 March 2006) with which department the applicant’s family have contracts to repair their motor bikes. Although Sri Lanka has difficulties it is not a country without law. It has a well established legal system based on the British model, with Court, lawyers, and police that at an international standard that can provide protection as required by the populace. The tribunal also finds that the applicant is not denied state protection because of his imputed/actual political opinion of him membership to a particular social group.
In view of the above findings the Tribunal finds that the applicant could return to his area. The Tribunal also finds that as he ahs in the past, he can continue to support the SLFP without facing a real chance of persecution now or in the reasonably foreseeable future.
Taking into account all of the above and the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied that he faces a real chance of persecution if he returns to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal is not satisfied, no the evidence before it, that the applicant has a well founded fear of persecution for any Convention reason within the meaning of the Convention.
The applicant in his application seeks judicial review on the basis that the tribunal member has failed to consider whether or not the applicant was a member of a particular social group, defined largely by being a person who had business dealings with the Sri Lankan Defence Force. The grounds set out various permutations of this basic theme, including references to his brother being in the army, his political activity and the like.
It appears to me that, on the material before the tribunal, they ought to have considered whether or not the political social group in this case could have been constituted by those who were supplying the government military, and that is the civilian suppliers and providers that enabled the military to carry out the tasks that it does in the particular social context of Sri Lanka, where there is significant unrest, or has been in the past significant civil unrest, as between the elected government and the LTTE and Tamil groups.
The tribunal has not considered this specific question as to whether or not this is a social group of which the applicant is a member. However, unlike many cases where the tribunal does not consider a specific aspect of the case, it appears clear from the reasons that the tribunal has considered the factual matrix, which provides a foundation for this question of the specific social group, and made findings with respect to those facts and circumstances as referred to above in this judgment.
Ultimately, however, this is prima facie a jurisdictional error in failing to consider whether or not the facts as before the tribunal are as to the applicant's participation or membership of a social group constituted by the providers to the military or some variant thereof. However, the question then arises as to whether or not the applicant could have succeeded in any event or whether it was in fact necessary for the tribunal to make a specific finding about a social group in the context of this case.
The tribunal found that the harm suffered by the applicant was not likely to have been at the hands of the LTTE because it was not ongoing after the persons responsible for it were imprisoned. The tribunal found that the state had acted by identifying the offenders, trying them, convicting them and then imprisoning them. In this context, there appears to be no real question before the tribunal as to the preparedness of the state to act against the persons harming the applicant, nor at least with respect to the specific persons, the capacity of the state to act effectively against them, in that in this case they located them, convicted them and imprisoned them.
The tribunal went on to consider whether or not the applicant's participation in the political groups or his family's participation in such groups may have impacted upon the willingness of the state to act in the future and clearly found that it did not. It cannot seriously be suggested that it would be an issue as to whether or not the state was prepared to act against the LTTE or those in support of the LTTE, given the political circumstances in Sri Lanka.
In light of the findings that the state has protected in the past and has the capacity and willingness to do so, it is not open in the context of this case to suggest that it would be reasonable for him to be unwilling to avail himself of the state's protection in Sri Lanka. In these circumstances, the findings of the tribunal with respect to protection of the state appear to dispose of the application, even if we assumed that the finding were made in favour of the applicant as to membership of a particular social group, namely providers to the military.
The considerations of the tribunal with respect to the nature of the harm and the protection canvass in some detail the specific harm and how it is related to his association with the military. The tribunal do specifically deal with questions of persecution related to the SLFP, no doubt because this was actively promoted as being the primary plank of the applicant's case by his adviser before the tribunal and the written submissions.
However, the findings of greater generality clearly deal with the question of the extent to which protection would be provided in the overall context of the case. It does not appear to me that further, more specific findings are necessary to show that the applicant did not succeed with respect to this part of his claim.
In the context of this particular case, I am not satisfied that the applicant has established a jurisdictional error such as to warrant the issue of writs of certiorari or mandamus. In these circumstances, I therefore dismiss the current application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date:
0
1
1