NAJY v Minister for Immigration

[2004] FMCA 273

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJY v MINISTER FOR IMMIGRATION [2004] FMCA 273

MIGRATION – Review of RRT decision – where Tribunal accepted that applicant had been sexually assaulted by police – where Tribunal further accepted that this amounted to persecution for Convention reason of imputed political opinion – where Tribunal found that the applicant’s fear of persecution in the future not well-founded – where Tribunal reasoned that the applicant would not be imputed with said political opinion in the future – whether the Tribunal applied the ‘real chance’ test.

NAIS v MIMIA [2004] FCAFC 1
NAHI v MIMA [2004] FCAFC 10
NAAH v MIMIA FCAFC 354
Chan v MIEA (1989) 169 CLR 379
Appellant S395/2002 v MIMA [2003] HCA 71
MIEA v Guo & Anor (1997) 144 ALR 567
MIMA v Haji Ibrahim (2000) 175 ALR 585
MIMA v Respondents S152/2003 [2004] HCA 18
Applicant WAEE v MIMIA [2003] FCAFC 184
NAQU v MIMIA [2003] FCA 1419
Daniel v MIMIA [2004] FCA 21
MIEA v Wu Shan Liang (1996) 185 CLR 259
R v Sec State for Home Dept, Ex parte Bugdaycay (1987) AC 514
WAAH v MIMIA [2003] FCA 1235

Applicant: NAJY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 655 of 2003

Delivered on: 7 May 2004

Delivered at: Sydney

Hearing date: 28 April 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Court declares that the decision of the Refugee Review Tribunal made on 31 December 2002 and handed down on 30 January 2003 is void and of no effect.

2. The application is referred back to the Tribunal for consideration and determination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 655 of 2003

NAJY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a Sri Lankan citizen of Sinhalese ethnicity. She arrived in Australia on 25 December 1999 and on

   
   

   8 February 2000 applied for a protection (class XA) visa. On 16 May 2000 a delegate of the Minister refused the protection visa application. On 7 June 2000 the applicant lodged an application for review with the Refugee Review Tribunal. The applicant was invited to attend a hearing before the Tribunal and did so on 6 September 2002. On

   
   

   31 December 2002 the Tribunal determined to affirm the decision under review.

2. The applicant’s account of her experiences in Sri Lanka is both serious and distressing. The applicant alleges that her husband was connected to the LTTE through his business activities. The applciant said she did not agree with her husband’s association with the LTTE, but whenever she voiced her objections or questioned him about his involvement, her husband would beat her.  For substantial periods during their marriage, the applicant’s husband lived in Saudi Arabia returning only for business purposes. At her husband’s insistence his Tamil associates would stay at their home, even on occasions when he was absent from the country.  The applicant became aware that her husband was engaging in illegal activities and was repeatedly threatened by both her husband and LTTE thugs who were no doubt concerned that she would report them to the police. Indeed, the applicant claimed that her husband often accused her of informing on him and ‘passing messages to her friends’. At some point the applicant’s husband came to the attention of the authorities and between 1995 and 1997 he was arrested many times on suspicion of LTTE involvement. Each time the applicant was able to arrange his release by paying off the police. In 1997 the applicant’s husband departed Sri Lanka. The applicant was consequently approached by LTTE militants angry that her husband had deserted them and seeking his whereabouts. They forced her to cooperate with the LTTE by sheltering Tamil girls who they brought to her home. Around the same period, the applicant also became the subject of police attention who sought information about the applicant’s husbands activities and her own involvement in harbouring LTTE members. She was questioned on a few occasions but at this stage did not suffer any mistreatment by police. However, on a subsequent occasion the applicant was sexually assaulted by police identifying themselves as CID officers. Although the applicant could not bring herself to tell the Tribunal about her ordeal at the hands of the CID officers, the incident was explained to the Tribunal’s satisfaction by written information from the applicant’s doctor; the only person the applicant had confided in.

3. As a result of her experiences prior to her departure from Sri Lanka, the applicant claims to have a well-founded fear of persecution from her husband, the LTTE and the police.

4. The Tribunal found the applicant to be a credible witness who recounted her experience of life in Sri Lanka simply and without exaggeration. It accepted that the applicant was the victim of domestic violence on occasions during her marriage but determined as a matter of fact that in harming her the applicant’s husband her was not motivated by a convention reason. It similarly found that any harm she might suffer in the future at the hands of her now estranged husband would not amount to persecution as it would not meet the s.91R requirement of being essentially and significantly motivated by a Convention reason. The Convention is not intended to provide protection to people who simply may be the victim of crime or harm in their country of nationality. Rather it is necessary that the harm be inflicted for one of the five stipulated Convention grounds namely  race, religion, nationality, membership of a particular social group or political opinion.

5. Neither was the Tribunal satisfied that the applicant’s contact with the LTTE sufficient enough to reach the threshold of serious harm amounting to persecution. In assessing whether there was a future risk of persecution by the LTTE the Tribunal had regard to country information and the individual circumstances of the applicant before concluding that the applicant’s fear of harm by the LTTE was not well-founded.

6. The above findings are not ones that can be overturned by the Court. It is clear from the authorities that a Court conducting judicial review is bound by the findings of fact found by the Tribunal: NAIS v MIMIA [2004] FCAFC 1; NAHI v MIMA [2004] FCAFC 10; NAAH v MIMIA FCAFC 354. It was open on the evidence before it to make the findings it did.

7. Importantly, for the purposes of review, the Tribunal specifically accepts that the applicant was sexually assaulted by CID officers. The Tribunal said at [CB 96]:

   “The Tribunal also accepts that a few days later, in late October 1999, the Applicant was again taken by the police (or particularly the CID) to an unknown place where she was sexually assaulted. The Tribunal accepts that such treatment amounts to persecution within the meaning of the Convention and that she, a Sinhalese women, was treated this way for reason of imputed political opinion as the police believed her to have supported, either directly or indirectly through her husband, the LTTE.” (emphasis added)

   However, despite making this finding of past persecution, the Tribunal was not satisfied her fear of persecution if returned to Sri Lanka is well-founded. In its findings and reasons the Tribunal said at [CB 97]:

   “The Applicant claimed to fear harm from the police/CID if she returns to Sri Lanka. When asked why they would harm her now she could really only refer to her disgust and fear of their past treatment of her and her fear that the same thing could happen again or that they would kill her. The Tribunal understands and accepts that she has a very genuine disgust and great fear of the police/CID who mistreated her and as a result, of police/CID generally and fears a repeat of the mistreatment and being killed by them, but the Tribunal cannot be satisfied that her fear of persecution now is well-founded. This is because it has been over three years since she was detained and mistreated and even at that time she was released which does not suggest that she was of ongoing serious adverse interest to the authorities. In addition, given the current situation of the ongoing peace talks, the security situation is much more relaxed, especially in Colombo, and the Tribunal is not satisfied that the Applicant will be imputed with an adverse political opinion because of her now estranged husband and/or prior suspicions, if she returns there now.”

8. The question before this court on review is whether the Tribunal erred in the manner in which it reached the conclusion outlined above. The Court is concerned with whether the Tribunal properly considered the ‘real chance’ of future persecution. The Court’s have repeatedly acknowledged the difficulty of assessing the future possibility of persecution. Importantly, they do not require an applicant to prove that persecution is a guaranteed outcome of their return. Rather, the indicators in the High Court decision Chan v MIEA (1989) 169 CLR 379 are that fear of persecution may be well-founded even when there is a less than 50% chance of it occurring; with McHugh J suggesting that a 10% chance may be sufficient. The notion of a real chance, being as it is so fluid in its definition, requires in my opinion the individual circumstances of the applicant to be thoroughly considered. Support for this can be found in the recent High Court decision Appellant S395/2002 v MIMA [2003] HCA 71 where Gummow and Hayne JJ made the comment at [73] that:

   “The objective element [of the Convention definition of refugee] requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant.”

9. Whilst past persecution is not determinative of what might occur in the future, its existence is viewed as a useful tool when determining whether a person’s fear of persecution meets the objective test of well-foundedness: MIEA v Guo & Anor (1997) 144 ALR 567; MIMA v Haji Ibrahim (2000) 175 ALR 585; Appellant S395 v MIMA [2003] HCA 71; MIMA v Respondents S152/2003 [2004] HCA 18. The following comment of the joint judgment of six members of the High Court in Guo at 580 has relevance to the present case:

   “It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future. If for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.” (emphasis added)

   Where, as in this case, past persecution for a Convention reason has been unequivocally accepted by the Tribunal, it is arguably even more incumbent on a decision-maker to take into account this fact when making an assessment of whether the fear of future persecution is well-founded.

10. The Tribunal’s reasoning set out above at [7] indicates that what the Tribunal in fact considered was whether the applicant would be imputed with an adverse political opinion, namely that she is an LTTE sympathiser.  The reasons do not indicate that the Tribunal turned their mind to the possibility that the applicant would be raped in the future. Nor does it appear to have considered whether, if the police were prepared to pick up, detain and sexually assault a woman who was of “no serious adverse interest” on that occasion, they might not repeat the offence upon her return. This was despite the fact that the applicant told the Tribunal that she feared she would be raped again, or even killed by the police/CID.

11. As articulated by Kirby J in MIEA v Guo & Anor (1997) 144 ALR 567 at 595 a judge on review “must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief.” Although the Tribunal’s standard introduction to its written reasons acknowledged that the “real chance” test is to be applied when determining whether there is a well-founded fear of persecution, it appears from its written reasons that the Tribunal failed to have regard to the authority which it had earlier recited. While there is no requirement for the Tribunal to comprehensively refer to every piece of evidence in their reasoning, it has been accepted that a failure to expressly refer to a particular issue gives rise to an inference that it has not been considered: Applicant WAEE v MIMIA [2003] FCAFC 184; NAQU v MIMIA [2003] FCA 1419; Daniel v MIMIA [2004] FCA 21. Nor do I see this as being a case where the Tribunal’s decision is being subjected to intense scrutiny: c.f. MIEA v Wu Shan Liang (1996) 185 CLR 259.

12. The Courts on many occasions have acknowledged that the decisions of the Tribunal and of the Courts on review have serious consequences for applicants. The following comment of Lord Bridge in R v Sec State for Home Dept, Ex parte Bugdaycay (1987) AC 514 at 531 has been frequently adopted in Australia:

    “The limitations on the scope of [judicial review] are well-known and need not be restated here. Within those limitations the Court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines.  The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”

    Lee J in WAAH v MIMIA [2003] FCA 1235 at [40] said:

    “It is to be kept in mind that in cases such as the instant matter if the Tribunal’s conclusion proves to be wrong the consequences will be serious and there will be no opportunity to rectify the error. (See: R v Sec State for Home Dept, Ex parte Bugdaycay (1987) AC 514)

    While the primary function of the Tribunal is to assess whether Australia owes protection obligations to asylum seekers having regard to Article 1A Refugee Convention and the Migration Act 1958, when carrying out this function they should do so bearing in mind that they are making important, potentially irrevocable decisions. For this reason it is vital that Tribunal’s carry out their functions in accordance with prescribed law.

13. In the circumstances I believe that it is appropriate that the matter be referred back to the Tribunal for consideration according to law.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  7 May 2004