Prathapan v MIMA
[1997] FCA 937
•5 SEPTEMBER 1997
FEDERAL COURT OF AUSTRALIA
MIGRATION - review of decision of Refugee Review Tribunal - whether Tribunal erred in law - persecution need not be “constant and unremitting” - whether applicant was unable or unwilling to avail himself to the protection of France as a French national - proper approach to “protection issue” under Convention - relevance of degree of efficacy of protection in country of nationality
Migration Act 1958 (Cth), s 476(1)(e)
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied
Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695, applied
Lal v Minister for Immigration and Ethnic Affairs (Madgwick J, 4 September 1996, unreported), considered
Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314, considered
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 124 ALR 265, applied
Yesus v Minister for Immigration and Ethnic Affairs (Madgwick J, 9 July 1996, unreported), considered
James Hathaway, The Law of Refugee Status, Butterworths, 1991, disapproved
PRATHAPAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 236 of 1997
Madgwick J
Sydney
5 September 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 236 of 1997
BETWEEN:
NAGARATNAM PRATHAPAN
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE(S):
MADGWICK J
DATE OF ORDER:
5 SEPTEMBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The Refugee Review Tribunal’s decision be set aside.
2. The matter be remitted to the said Tribunal for rehearing according to law.
3. The respondent is to pay the applicant’s costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 236 of 1997
BETWEEN:
NAGARATNAM PRATHAPAN
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE(S):
MADGWICK J
DATE:
5 SEPTEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR: The applicant is of Tamil ethnicity. He is a Sri Lankan national who also acquired French nationality after his acceptance by France as a refugee. He arrived in Australia from France on 22 December 1994 and applied for a protection visa on 18 March 1995. The applicant was notified by the Minister’s delegate that his application was refused on 10 October 1996, and the applicant applied for a review by the Refugee Review Tribunal (“The Tribunal”) on 6 November 1996. For the reasons given on 27 February 1997, the Tribunal affirmed the delegate’s decision that the applicant was not entitled to a protection visa because he did not satisfy the criterion of a “refugee”, and thus was not a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees (“the Convention”).
The applicant now seeks judicial review of the Tribunal’s decision under the Migration Act1958 (Cth) (“the Act”) on the following grounds:-
(a)The Tribunal erred in law in that it failed to properly interpret and apply the meaning of “persecution” under the Convention (s 476(1)(e));
(b)In reviewing the decision of the Minister’s delegate, the Tribunal failed to act according to the substantial merits of the case (s 420);
(c)By failing to consider material which it was bound to consider, the Tribunal failed to observe procedures that are required to be observed by the Act (s 476(1)(a));
(d)There was no evidence to justify the making of the decision; and that the decision was not authorised by the Act or the regulations (s 476(1)(g)); and
(e)The decision was not authorised by the Act or the regulations (s 476(1)(c)).
The applicant’s background
In 1983, the applicant was granted refugee status in France after being harassed by the Liberation Tigers of Tamil Eelam (“LTTE”) in Sri Lanka. The applicant’s brother, who had also had problems with the LTTE and the Sri Lankan Armed Forces, followed the applicant to France in 1984. In 1990, the LTTE in France became suspicious that the applicant’s brother was working with another rebel group against the LTTE, the Eelam People’s Revolutionary Liberation Front (“EPRLF”), and he began receiving threats. The applicant’s brother left France for Australia in 1992 and was granted refugee status in January 1994 on the basis that he faced a real chance of persecution if he returned to Sri Lanka.
The applicant claims that during 1991, he began to receive phone calls asking about his brother. In 1992 his apartment was burgled. In 1993 the applicant went to India and there married; upon his return, he received telephone calls accusing him of giving information to the EPRLF during his visit to India. In late 1993 or early 1994, the LTTE requested the applicant, who is a professional musician, to make a musical recording on their behalf, but the applicant refused. About one month later the applicant received threatening telephone calls accusing him of failing to help raise money for the LTTE.
In June 1994 the applicant performed in a concert that had been arranged by an association supporting a Sri Lankan college. The applicant believes that the proceeds were for the benefit of one of the Tamil independence groups, but claims not to know which particular group. However, after the concert the applicant received further telephone threats which accused him of helping rival groups to the LTTE.
On 20 July 1994 the applicant was assaulted outside a train station by four Tamils. The applicant recognised them from a Tamil cultural centre, which the applicant claims is a LTTE organisation. His assailants accused the applicant of supporting the EPRLF and demanded money for LTTE. He was sprayed in the face with a chemical that burnt his skin. The applicant went to the police station to report the incident, but he did not tell the police that he thought he had been attacked by LTTE because of possible reprisals, and he was fearful that they would harm his then-pregnant wife.
The definition of a “refugee”
The relevant parts of the Convention are:
“. . . the term ‘refugee’ shall apply to 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, unwilling to avail himself to the protection of that country; . . .
In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”
The Tribunal’s Findings
The Tribunal identified two issues as being crucial to its determination of the review, those being:-
(1)whether there was a real chance that the applicant might be so seriously harmed in France by the LTTE that the Tribunal should find he faced a real chance of persecution for a Convention reason; and
(2)if there was such a real chance, whether there was a real chance that the French authorities would or could not protect the applicant from such persecution.
The Tribunal was not satisfied that, on the evidence available, the applicant faced a real chance of persecution by the LTTE. The Tribunal made the following findings:
“The evidence on which the intentions of the LTTE in France towards the male applicant must be assessed is that which shows that, between 1990 and December 1994, he received a number of telephone calls about his brother and personal telephone threats and was assaulted once by four young Tamils. I am not satisfied that this evidence leads to a conclusion that the LTTE in France has an intention to seriously harm the male applicant so that there is a real chance he might be persecuted in the foreseeable future.
The evidence shows that the male applicant’s brother came to the notice of the LTTE in France after he visited his parents in India in July 1990. Initially, the only contact with the male applicant by those who might have been threatening his brother were telephone calls asking indirect questions about the brother’s activities and his whereabouts. Therefore, until the male applicant returned from India with his bride in 1993, there was nothing to show that the LTTE might have regarded him as involved with any other Tamil independence group. There is nothing to show that the LTTE might have wished to harm him seriously for that reason [that is, I take it, before 1993].
Even after the male applicant returned to France in 1993 with his bride, the main concern of those who resumed telephoning him appeared to have been his brother together with a suspicion that he might have been working for his brother against the interests of the LTTE. Therefore, although the LTTE may have begun to entertain firmer suspicions about the male applicant, there is nothing that leads clearly to a conclusion that they might have wished to harm him seriously. This factor is important once his refusal, late in 1993 or early 1994, to assist the LTTE with musical recordings is taken into account. His refusal must have provided the LTTE with the justification to decide he opposed them and was working to frustrate their activities in France. However, despite the fact that this incident occurred some 12 months before he came to Australia, it was never mentioned by any of those who continued to threaten him and those who assaulted him in July 1994.
Furthermore, I do not think the evidence about the dealings between the male applicant and those who were harassing him in France during the period from 1990 was so severe that it is indicative of a real chance of persecution if he returns to France. Persecution involves ‘... harassment, harassment that it so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from [those responsible]’ (Gladys Maribel Hernandez, Canadian Immigration Appeal Board Decision M81-1212, 6 January 1983, cited in “The Law of Refugee Status”, James C Hathaway, Butterworths, Canada, 1991 (Hathaway) 102). As Hathaway added, ‘The equation of persecution with harassment highlights the need to show a sustained or systematic risk, rather than just an isolated incident of harm’ (at 102).
I cannot find in the evidence of a number of telephone calls and one incident of assault in a period of more than four years anything which suggests that the harassment the applicant suffered at the hands of the LTTE was so constant and unrelenting as to deprive him of all hope of recourse other than flight from France to Australia. During much of that period, the calls were about his brother. Even after the incidents began to relate more directly to the male applicant in 1993, those actions he had taken which might have led the LTTE to harm him seriously were not mentioned. Rather, the various events had the character of isolated incidents of harassment that the LTTE might have directed at anyone in France that they recognised as Tamil.”(emphasis added)
The Tribunal was also not satisfied that there was a real chance that the French authorities would or could not protect the applicant from persecution for Convention reasons. In regard to this issue, the Tribunal stated:
“It may be conceded that the independent evidence suggests some deficiencies on the enforcement of the law in France, especially where excessive force is sometimes used by law enforcement officers dealing with immigrants to France. However, it is quite another thing to assert that the responsible authorities in France would not protect the male applicant from harm by the LTTE for a Convention reason or could not protect him from such harm. The independent evidence shows that law enforcement in France is under effective civilian control, that the Government fully respected the human rights of its citizens and the law and judicially (sic) provide effective means for dealing with instances of abuse (Human Rights Practices Report).
I do not think that anything significant emerges from the actions taken by the police on the two occasions when the male applicant reported to them. On the occasion when his apartment was burgled, they appear to have taken all appropriate actions having regard to the fact that the burglars had departed the scene before the male applicant discovered that his apartment had been broken into. There was no clear description of the burglars and little prospect that the police would have been able to find them.
On the second occasion when the male applicant reported to the police, he held suspicions about the identity of the culprits. For his own reasons, he did not inform the police of those suspicions or lay a formal complaint against those he suspected. I accept Mr Karp’s submission that this does not prove the responsible French authorities could and would protect the male applicant. However, equally the evidence about this aspect of the case does not prove that the responsible French authorities could and would not protect him. On the contrary, the male applicant’s testimony that he was reluctant to make a formal complaint to the police for fear of reprisals by the LTTE, suggests that he thought the police would have taken appropriate steps to inquire into the assault on him and to prosecute the offenders. To that extent, therefore, the evidence about the assault on the male applicant does point to a positive conclusion that the responsible French authorities could and would protect him from harm by the LTTE.”
The Grounds for Review: s 476(1)(e)
The applicant submitted that the Tribunal’s description of what amounts to “persecution” under the Convention is inconsistent with the High Court’s decision in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; in particular, that (1) persecution need not be “harassment that is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight” to satisfy the criterion of the Convention, and (2) the Tribunal erred in considering that the type of harassment suffered by the applicant could not constitute serious enough harm to amount to “persecution”. Further, by failing to consider the proper test of persecution, the applicant submitted, the Tribunal necessarily failed to properly consider whether the applicant had a “well founded fear” of persecution.
The applicant further submitted that the Tribunal erred in that it had imposed a requirement that the applicant seek the protection of his own country before it could be said that he had a “well founded fear” of persecution, and that the proper approach would require the Tribunal to consider whether, in practical terms, that country would be capable of preventing harm to the applicant or whether its protection would be effective: Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695. By analogy, the applicant relied on Randhawa v Minister for Immigration and Ethnic Affairs (1994) 124 ALR 265 as demonstrating that the practical realities of the applicant’s case should have been considered by the Tribunal, and that it was unreasonable in the circumstances to expect that the applicant should have informed the police of his suspicions that the assault was politically motivated.
The applicant further submitted that the Tribunal did not address the evidence that political assassinations were not uncommon in France and that at least one anti-LTTE Tamil had been assassinated by the LTTE in May 1994 (two months prior to the assault on the applicant).
Conclusions
The matters of substance argued which are capable of giving rise to judicial intervention came down to two: persecution and protection.
(1) Persecution
The test of persecution which the Tribunal applied conflicts with what McHugh J expressly said, and with what Mason CJ implied, in Chan. McHugh J said (at 429-430):
“The term ‘persecuted’ is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes ‘being persecuted’. The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. She may be ‘persecuted’ because she is a member of a group which is the subject of systematic harassment..... Nor is it a necessary element of ‘persecution’ that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is ‘being persecuted’ for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution....”
Mason CJ stated (at 388):
“The Convention and the Protocol do not define the words ‘being persecuted’ in Art. 1A(2). The delegate was no doubt right in thinking that some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution. When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.”
The literary quality of the phrase from the Canadian case quoted and evidently relied on by the Tribunal exceeds its usefulness as a guide to the meaning of the Convention. Persecution need not be “constant and unremitting”. If sufficiently serious, it can be constituted by an isolated act or a series of particular acts and, in my opinion, can be constituted by a wide range of acts. I considered this matter, with reference to Chan in Yesus v Minister for Immigration and Ethnic Affairs (9 July 1996, unreported) and Lal v Minister for Immigration and Ethnic Affairs (24 September 1996, unreported). Secondly, in relation to the “no hope apart from flight” suggestion, to qualify as a refugee an applicant must simply comply with the requirements of the Convention, one of which is that the applicant be absent from his or her country of nationality owing to a well-founded fear of persecution for Convention reasons. No inquiry into the number or nature of the applicant’s “hopes” is called for. The dictum referred to deflects attention from the proper test. The opinion of the learned commentator, Mr Hathaway, is also not in accord with Australian law, in my opinion.
(2) Protection
However, that error alone may not mean that the Tribunal’s decision cannot stand. Let it be assumed in favour of the applicant that, if the Tribunal had properly directed itself, it must have come to the view that there was a real chance that the applicant would be persecuted by the same kind of harm as was evidenced by the acts complained of, namely threatening phone calls and what our criminal law would know as assault occasioning actual bodily harm. The Tribunal nevertheless concluded that there was no real chance that the protection of France was unavailable against harm constituted by such acts. The applicant would thus need to show an independent legal error in the Tribunal’s consideration of the matter of protection.
What is involved in the “protection issue” needs to be clearly understood. The Tribunal directed itself in the following way: the Tribunal set out the Convention definition and said:
“This definition establishes four requirements . . . Fourthly, he must be unable or unwilling, because of his fear, to avail himself of the protection of both his countries of nationality.”
So far as it goes, that, in my opinion, is unexceptionable, but, as I shall indicate, it does not go far enough. However, the Tribunal continued:
“The issues I must consider to decide this application for review are:
. . .(c)if there is a real chance he would be persecuted in France by the LTTE, whether there is a real chance the responsible French authority would not protect him from persecution for a Convention reason or could not protect him from such persecution by the LTTE.”
That “issue” is not, in my opinion, a correct restatement of the relevant “requirement” of the Convention. The Convention fastens upon the inability or unwillingness of the applicant for refugee status to avail himself or herself of the protection of his or her country (or, as here, countries) of nationality. The Convention does not take as its criterion the inability or unwillingness of the applicant’s country of nationality to protect him or her. The questions to be asked are:
(i)Is the applicant unable to avail himself of the protection of the country or countries of nationality owing to a well-founded fear of persecution for Convention reasons? If so, the Convention requirement will be satisfied.
(ii)If the applicant is able to avail himself of such protection, is the applicant unwilling, and (usually more to the point) unwilling owing to a well-founded fear of Convention-persecution, to do so?
Those are questions of fact. No doubt the willingness and ability of the authorities of the country of nationality to protect an applicant will usually be highly relevant to the first question, but that question was not the main issue here. The applicant might well have been said to be able to avail himself of such protection as France could give him: conditions generally in France are not such as to disable him from so doing. The real question in this case is the second of those set out above. Assuming his actual unwillingness to avail himself of France’s protection, the answer to that question depends on the answer to two further questions of fact:
(iii) has the applicant a well-founded fear of persecution for Convention reasons?
(iv) is it owing to such fear that he is unwilling to avail himself of France’s protection?
Thus, the issue of “persecution” is integrally bound up with the “protection” question.
It is to be noticed that the primary inquiry is not into the level of protection which is actually and effectively available to the applicant. However, the question whether the applicant’s unwillingness to seek his own country’s protection is “owing to” a well-founded fear of Convention persecution involves inquiry into the applicant’s subjective genuineness as to the reason he does not wish to seek such protection, and as to the objective justification for any genuine fear. As a practical matter, it may well not be irrelevant to judgments about both of those matters to consider the degree, and the comparative degree, of efficacy of the protection available in the country of nationality.
If, for example, an applicant could not give an account consistent with his or her genuineness for believing that he or she would be safer in Australia than in the country of nationality, that could be a matter which might legitimately influence the decision-maker. There might also be some cases where, having regard to the applicant’s circumstances, such a consideration could count for little or nothing: the mere finding that the country of nationality could and would offer protection which, though not perfect, is as adequate as might be found in the real world might not necessarily conclude the matter of the applicant’s genuineness. The question remains that of the applicant’s actual motivation for his/her unwillingness, to accept that protection, as explained above.
Likewise, the capacity of the country of nationality to offer effective protection, as judged against a “range of realities” (to borrow a phrase used, in a different context, of the Convention definition of “refugee”: see Randhawa at 270) is likely to be relevant to a judgment about whether an applicant’s fear of persecution, which accounts for his or her absence from the country of nationality and unwillingness to avail himself or herself of its protection, is “well-founded”. One might infer a lack of such foundation if Australia’s ability to protect an applicant were no greater than that of the country of nationality. If, for example, an applicant fears the LTTE, there are significant numbers of Sri Lankan Tamil emigrants in Australia and LTTE terrorisation of non-adherents to its program exists here, then Australia’s inability better to protect the applicant than his or her country of nationality could, might well cast doubt on the justification for fear subjectively felt by the applicant and which propelled him or her to Australian shores, though it may not necessarily do so.
It may be observed that a process of analysis of the definition of a refugee into supposed separate elements, such as that essayed above, keeps introducing into one element a cross-reference to another. This serves to illustrate the truth of Burchett J’s observation in Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 at 317 that there is a single conception which underlies the definition.
No doubt the protection in question must be effective and “available”, and an actual inquiry into this must be made: Koe. However, in 1951 and since, having regard to the realities of nations and the practicalities of applying the Convention, the framers and keepers of the Convention would hardly have envisaged that a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights, in a modern and affluent democracy, would not ordinarily amount to effective and “available” protection.
While the matter remains a question of fact, a person claiming refugee status is not, in my opinion, ordinarily entitled to rely on 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. To apply any other standard would, as submitted by Ms Henderson for the Minister, be to ensure that every applicant must succeed who can prove that harm may reasonably possibly come to him or her, despite the best efforts of the efficient and willing agents of a State cognisant of its obligations to provide law and order and respect human rights, and well-disposed towards the applicant, one of its nationals. Such an approach would rob the notion of “protection” of any practical meaning. It may be asked rhetorically: after the unsolved 1995 murder in Sydney of a State parliamentarian, must every crusading Australian politician, threatened by criminal elements on account of such political activity, be accorded refugee status in France? The Convention operates when “the degree of protection normally to be expected of the government is either lacking or denied”: see Hathaway, The Law of Refugee Status at 124 (emphasis added).
Nevertheless, it cannot be said that the Tribunal did not err in its interpretation of the applicable law on the “protection” issue as well as on the “persecution” issue. Nor can one say that the Tribunal must have come to the same conclusion had it not so erred. Therefore one cannot say, as the Minister submitted, that the Tribunal would necessarily have come to the same conclusion, free of operative and reviewable legal error, even if it had not erred as to “persecution”.
In consequence, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for rehearing according to law. The respondent should pay the applicant’s costs.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick Associate:
Dated: 5 September 1997
Solicitor for the Applicant: McDonells Counsel for the Respondent: R Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 August 1997 Date of Judgment: 5 September 1997
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