SZDWR v Minister for Immigration
[2005] FMCA 860
•1 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 860 |
| MIGRATION – RRT decision – Sri Lankans fearing LTTE and extortion by police – assessment of effective protection against rogue state agents – whether a different test or standard – no error found in Tribunal reasons. |
| Migration Act1958 (Cth), s.483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Bagdanavicius v Secretary of State for the Home Department [2003] EWCA Civ 1605 Horvath v Secretary of State for the Home Department [2001] 1AC 489 Minister for Immigration & Multicultural Affairs v Kandasamy [2000] FCA 67 Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/202 [2003] HCA 30 Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74 VRAW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133 Wickramasinghe v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 |
| Applicants: | SZDWR & SZDWS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1895 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 2 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr C Colborne |
| Solicitors for the Applicants: | Siva Logan Solicitors |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicants to pay the respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1895 of 2004
| SZDWR & SZDWS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 April 2004 and handed down on 25 May 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicants, who are a husband and wife. The delegate’s decision was made on 22 August 2003.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants qualify for a refugee visa.
The applicants’ claims
The applicants arrived in Australia in May 2003, and lodged their application with the assistance of their present solicitor on 8 July 2003. In their applications, they indicated that they were each aged over 60, and feared persecution in their country of nationality, Sri Lanka. The husband was of Tamil ethnicity and Hindu religion, and his wife was of Sinhalese ethnicity. They had lived and raised their family in Batticaloa, in the area subject to insurgency by the LTTE, until recent times when they claimed to have been forced to relocate to Colombo. They provided statements and supporting documents to the delegate, and further material to the Refugee Review Tribunal. I consider that their refugee claims were sufficiently summarised by the Tribunal as follows (referring to the husband as “the applicant”):
13. The applicant claims to fear persecution by reason of an imputed political opinion. The applicant also appears to rely on his Tamil ethnicity.
14. The applicant claims that in April 1985 his oldest son was shot dead by the Liberation Tigers of Tamil Eelam (LTTE). The applicant claims that after their son’s murder, he and his wife assisted the police to investigate the murder. The applicant claims that the LTTE came to his house and threatened him and his wife with death if they continued to help the police investigate the murder.
15. The applicant claims that during the fighting between the LTTE and the Sri Lankan security forces and Indian Peace Keeping Force, he would advise the Sri Lankan military of the presence of LTTE militants in their area.
16. The applicant claims that during the investigation of his son’s death, he and his wife were taken by the police to identify the persons responsible. Subsequently, during the fighting between the Sri Lankan Army and the Indian Peace Keeping Force with the LTTE, the army and the police began to utilise the applicant as a “hooded man”. The applicant was required by the police to identify suspected LTTE militants. The applicant claims that when the LTTE discovered this, he was assaulted in front of his wife and threatened that his whole family would be murdered if he continued to assist the security forces in this manner. The applicant claims that after this he would give false excuses to the security forces in order to avoid having to act as a hooded man.
17. The applicant claims that the security forces suspected he was supporting the LTTE because of his refusal to assist them. The applicant claims that his second oldest son was abducted by the LTTE on his way home from school and was subsequently arrested with other LTTE militants by the Sri Lankan security forces. The applicant was required to pay 50,000 rupees and to agree to act as a hooded man in return for the release of his son. After this, the applicant sent his second son out of Sri Lanka before he could be abducted again by the LTTE. The applicant stated that his daughter was married in 1996, so the LTTE did not abduct her. He claims that his third son left Sri Lanka in 1997.
18. The applicant claims that at some time after this (which he does not identify), their neighbours began to discriminate against them for not supporting the LTTE from the beginning. The applicant claims that most of their neighbours’ children were LTTE members. The applicant claims that he and his wife were humiliated and assaulted on the streets by local Tamil youths, who turned out to be LTTE members.
19. The applicant claims that senior LTTE members visited his home and ordered him to pay money to them on a regular basis because all his children had left home and because he had been declared a traitor of Tamil Eelam. The applicant claims to have been assaulted many times for asking for extra time to pay the amount demanded.
20. The applicant claims that in January 2001 he was arrested by the local police and was questioned about making financial contributions to the LTTE. The applicant claimed that members of groups opposed to the LTTE had informed the police that his sons, who were living abroad, were collecting funds for the LTTE and that the applicant had been acting as a middleman to pay the LTTE. The applicant claims that he was detained for one month in the army camp while the investigations were conducted, and that he was released when his wife and her brothers used their influence to convince a senior army officer to release him on condition that he not engage in handling money for the LTTE. The applicant claims that army officers warned him that they would take him into prison permanently if they obtained evidence to prove that he and his sons were involved in any LTTE financial transactions.
21. The applicant claims that due to the continuous harassment by the LTTE militants, he continued to pay them money but asked the militants not to send members to his house to collect the money as he was being watched by groups opposed to the LTTE. The applicant claims that on 10 February 2002 three unknown persons came to his house, told him that they had been sent by the LTTE, and forced the applicant to accompany them to a house where he was locked in a room. After an hour, a member of the LTTE demanded that he pay them 20 lakhs. The applicant refused, saying that he did not have the money and that he was subsisting on a pension. The applicant was physically assaulted and threatened with death if he failed to pay the amount. The applicant claims that the next day the brother of his son-in-law was detained as a surety and the applicant was told to collect the money. The following day, two members of the LTTE met with the applicant and he told them he had only managed to collect two lakhs (a lakh is 100,000 rupees). The LTTE members stated that this amount was insufficient and ordered him to pay five lakhs by 20 February 2002. The LTTE members threatened to kill the applicant and his wife if he failed to pay this amount.
22. The applicant claims that he gave his house keys to his brother-in-law and he and his wife went to stay in Wellewatte. The applicant claims that on 19 February 2002 his brother-in-law telephoned saying that the LTTE had demanded the keys of their house but that his brother-in-law had refused. The applicant claims that on 3 May 2002 his brother-in-law telephoned the applicant and stated that five members of the LTTE had threatened to occupy the house of the brother-in-law if he did not hand over the applicant’s keys.
23. The applicant reported the matter to the Wellewatte police and to the Sri Lankan army. The applicant claims that the police took him for interrogation as to his involvement with the LTTE. The applicant claims that the police accused him of obtaining and collecting money for the LTTE to purchase arms to fight the Sri Lankan army. When the applicant denied these allegations, the police told him that they had been informed by the army that the army had information about his children’s involvement in the LTTE abroad and the applicant’s involvement in collecting money for the LTTE. The police officer then said that the applicant should leave Sri Lanka forever and give the officer the keys to his house together with a written note saying that he had given his house to them to use without limitation. The officer also demanded 100,000 rupees or he would be taken into prison. The applicant asked for some time to think about this.
24. The applicant states that at the same time the LTTE sent him letters demanding that he present himself at their office. The applicant decided to flee from Sri Lanka. The applicant claims that he will be persecuted for not adhering to the orders of the LTTE. The applicant claims that he has been told by his brother-in-law that his house is still being used by the LTTE.
In its statement of reasons, after setting out the above summary, the Tribunal explained the further evidence given by the applicants in support of their claims and the matters discussed at a hearing held on
6 January 2004. No complaints are made in relation to the fairness of its proceedings, and it is unnecessary for me to describe their course.
Country information
The Tribunal set out extracts from independent evidence “concerning the peace process in Sri Lanka and the situation for Tamils in Sri Lanka and particularly in Colombo.” This included a lengthy extract from a UK Home Office report which discussed law enforcement measures in Sri Lanka in relation to complaints concerning the security and police forces. Both counsel accepted that the following paragraphs identified what the Tribunal in its findings and reasons referred to as “illustrating” “various avenues available to the applicant to assert his entitlement to protection from corruption and attempted extortion by police officers and criminal assault, extortion and theft by the LTTE, and to challenge the failure of the police to perform their public duty to investigate his complaint against the LTTE.”:
6.93 The Supreme Court and other courts have taken an unequivocal position on the question of torture and have awarded compensation to victims of torture. The Supreme Court can request the Inspector General of Police to initiate an investigation, and on completion, may refer the matter to the Attorney-General for prosecution. Under fundamental rights provisions in the Constitution, torture victims may file civil suit for compensation in the high courts or Supreme Court. Courts have granted awards ranging from 14,200 to 182,500 rupees. However, most cases take 2 years or more to move through the courts…
6.96 In 2000 the Government established an Inter-ministerial Permanent Standing Committee and an Inter-ministerial Working Group on Human Rights Issues, chaired by senior officials, to investigate human rights abuses. At the same time, the Government established the Prosecution of Torture Perpetrators Unit, under the direct supervision of the Attorney General…
6.104 The Human Rights Commission (HRC) was established by Act of Parliament in 1996 and started work in March 1997.
It has monitoring, investigative and advisory powers in relation to human rights. There are no time limits for filing a complaint before the HRC.
6.105 The HRC is empowered to investigate an allegation of infringement of fundamental rights, and to recommend the prosecution of the person infringing those rights. The HRC may monitor the welfare of detainees by regular inspection of places of detention. All arrests and detentions under the [former] Emergency Regulations and the Prevention of Terrorism Act must be reported to the HRC within 48 hours of arrest. A police officer can be prosecuted if he or she does not follow these guidelines, though this is rarely enforced. There is a monthly meeting between the HRC and security forces to discuss these matters, a report is prepared detailing any discrepancies, and possible repercussions are discussed.
6.106 The HRC visited 681 police stations and at least 326 detention facilities during 2002. These visits can be unannounced, so there is effectively 24-hour cover, unless there is a curfew in force in a particular area.
6.107 The HRC has more than 4,500 cases of alleged human rights abuse pending. Some human rights observers believed that the work of the HRC was hampered by a lack of strong leadership within the organisation; however during 2002 many human rights observers recognised that the new leader of the HRC was willing to confront other branches of the Government on human rights problems and new standard procedures. Activists have expressed some satisfaction with the new leadership's prompt investigation into the Bindunuwewa massacre.
6.108 The Committee to Inquire into Undue Arrest and Harassment (CIUAH), which includes senior opposition party and Tamil representatives, examines complaints of arrest and harassment by security forces and takes remedial action as needed. Opinions on the effectiveness of the CIUAH are mixed. Some human rights observers believe that the work of the CIUAH has deterred random arrests and alleviated problems encountered by detainees and their families. (The role of the CIUAH diminished drastically during 2002 due to improvements related to the peace process)
The Tribunal’s reasons also referred to the following information under the heading “bribery and extortion in Sri Lanka”:
56. The Danish Immigration Service Report on the fact-finding mission to Sri Lanka, 21 February to 7 March 1997 (Copenhagen, April 1997, p21), suggested that many Tamils were arrested and detained simply for the purpose of blackmailing their families into paying bribes for their release, while DFAT has indicated that bribes in the range of 7,000 to 50,000 rupees are plausible in this context (DFAT cable CL500233, dated
20 September 1997, CX27833). That DFAT cable goes on to state:
Bribery and corruption pervades most Departments in Sri Lanka. There are instances of the police, the military and government officials being accused of soliciting bribes.
57. An article in the South China Morning Post (“Sri Lanka: Harassment Allegations Force Halt To Mass Arrests Of Tamils”, Gaston De Rosayro, 6 April 1998) reported:
The Government recently ordered an investigation into an extortion scandal involving Tamil detainees by city and suburban-based police. Several police officers have been accused of extorting large sums of money from Tamil detainees in return for their release.
The Tribunal’s “legal principles”
Under the heading “legal principles” the Tribunal referred to relevant High Court authorities in a passage which is not the usual “boiler plate”, but is focused upon the present applicants’ claims, and in particular their fears that they would not receive effective protection against extortion demands by the LTTE and police officers. It referred to Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18, and discussed the judgments in Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574. It said:
61. However, while Gleeson CJ concurred with the view that “protection” in Art.1A(2) refers to external protection, his Honour held that the concept of “protection” is also used in a broader sense in the Convention context and that persecution may result from the combined effect of the conduct of private individuals (there, an abusive husband, but equally, in my view, applicable to officials such as police acting illegally and without the sanction of the State) and of the State or its agents, and that a relevant form of State conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the State has a duty to provide protection against such harm (at [30]). Kirby J took a similar approach, setting out a formula of Persecution = Serious Harm + Failure of State Protection (at [14]). In this analysis, a failure of protection goes to the issue of whether the persecution is likely to be repeated should the applicant return to his country of nationality; that is, to the question of whether the applicant’s fear of persecution is well-founded.
62. Employing “protection” in the broader, internal, sense intended by Gleeson CJ in Khawar, the protection available to an applicant in his own country must be “effective” but this does not require that the authorities of that country must provide an absolute guarantee of protection against harm (Thiyagarajah v MIMA (1997) 73 FCR 176 at 179; MIMA v Prathapan (1998) 156 ALR 672 at 680-681). Hathaway suggests, consistently with Australian jurisprudence, that protection through refugee law arises when the degree of protection normally to be expected of the government is either lacking or denied (Hathaway, J.C. The Law of Refugee Status, Butterworths, Canada, 1991, at 124). Burchett J held in Efimcova v MIMA ([1998] 1138 FCA, 4 September 1998) that the Tribunal’s conclusion that State protection was not at that level of ineffectuality that would allow or give rise to a real chance that the applicant would be persecuted was a conclusion consistent with the principle in Prathapan.
Counsel for the applicants did not submit that this discussion showed misconception of Australian authority in relation to issues of effective protection against non-state agents. As I shall indicate, he argued that the Tribunal erred by failing in its “findings and reasons” to perform the further analysis required by Finkelstein J in VRAW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133 (“VRAW”), which was delivered after the Tribunal made the present decision. However, he pointed to nothing in the above discussion of legal principles as indicating the error which he argued.
The Tribunal’s discussion of “legal principles” also contained the following reference to a Full Court authority:
63. Further, the Full Federal Court in MIMA v Kandasamy ([2000] FCA 67, 10 February 2000) approved the conclusion by the Tribunal that there cannot be a failure of State protection where a government has not been given the opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming (per Hill J at [26], Whitlam and Carr JJ at [49]).
I consider that this paragraph incorrectly ascribes approval to the Full Court of a proposition that “there cannot be a failure of State protection where a government has not been given the opportunity to respond …”. It is correct that the Tribunal in Kandasamy referred to this proposition when reasoning that an absence of effective protection had not been established for an applicant fearing harm from the LTTE in Denmark. However, I do not read the members of the Full Court to have approved the proposition as part of their ratio decidendi. Rather, their judgments rest upon the Tribunal’s positive finding that effective state protection was available to the applicant from the government of Denmark (see Hill J at [30], and Whitlam and Carr JJ at [52]).
In my opinion, although it may be relevant in cases such as the present for a refugee decision-maker to enquire whether an applicant has attempted to use avenues for seeking protection against non-state agents, this enquiry cannot dominate nor be a substitute for its assessment of the sufficiency and likely effectiveness of those avenues if the applicant returned to his country of nationality and sought to invoke them. The decision-maker cannot avoid that assessment on the basis that the claimant made no attempt to invoke them prior to fleeing his country. To require this would be to raise a disentitlement to Australia’s protection which is not found in the Refugees Convention as adopted by the Migration Act.
In the present case, as will appear in the extracts below, the Tribunal’s mistaken adoption of a principle of disentitlement from Kandasamy also appears in the course of its reasoning when affirming the delegate’s decision. However, counsel for the applicants conceded that its references to Kandasamy did not provide an essential element in its reasoning. He accepted that the Tribunal also rested its decision upon an assessment of the effectiveness of measures of protection which the applicant had not invoked, and that, to obtain relief, it was necessary to identify separate error in that assessment. I shall identify and address his arguments after explaining the Tribunal’s reasoning.
The Tribunal’s reasoning
The Tribunal correctly identified the applicants’ separate claims to fear persecution from the LTTE and the Sri Lankan security forces in the opening paragraph of its “findings and reasons”:
65. The applicant claims, in essence, to fear persecution for a Convention reason by both the LTTE and the Sri Lankan security forces. The applicant claims that the LTTE extracted money and property from him by threats of violence and by abduction and physical ill-treatment. He claims that the police in Colombo extracted money from him, and failed to assist him to recover property illegally taken from him by the LTTE, by threats of violence and unlawful detention. The applicant claims that the LTTE engaged in persecution because the applicant is Tamil and, perhaps, because the LTTE imputed to him a political opinion opposing the LTTE. The applicant claims that the police in Colombo engaged in persecution because he is Tamil and they imputed to him a political opinion in support of the LTTE.
It then analysed the applicant husband’s fears arising from their past police persecution, and noted his claim that “he was imputed with a pro-LTTE political opinion”. However, it formed the opinion that “the police did not genuinely hold this opinion of the applicant’s political affiliations but rather that it was a convenient cover for their own, entirely illegal, attempt at extortion.” This analysis was, apparently, accepted by the applicants at the hearing before the Tribunal, and their counsel did not argue before me that it showed a misunderstanding of their claims. He accepted that the Tribunal correctly addressed the applicant’s fears of the police on the basis that they had been a “convenient target for extortion” by police officers acting illegally and without State authority or toleration.
The Tribunal noted that its findings, that extortion rather than actual or imputed political opinion motivated both the LTTE and the illegal police action, gave rise to an issue of whether the feared harms would be “persecution” for a “reason” coming under the Convention, but it did not reach a conclusion on this issue. It said that it did not need to do so “because I am satisfied that the applicant is able to access effective State protection for the illegal activities of the police and of the LTTE.”
It explained this conclusion with reasoning which followed the following path:
a)
The Tribunal referred to the applicant’s attempt to seek redress for the theft of his property and the extortion and threats of the LTTE, by writing a letter to the SLMM (the Sri Lanka Monitoring Mission) and another to the office of the Sri Lankan President.
It considered that these were not agencies giving legal redress, and were not the appropriate bodies to which to make complaints of illegality. It also criticised the applicant for making no attempt “to follow up his approach to the SLMM”, suggesting that this may have led to the applicant being directed to more appropriate bodies.
b)The Tribunal then referred to the applicants’ attempt to obtain redress by complaining to the police, and the resultant two extortion attempts:
69. The applicant did attempt to make a complaint to the most appropriate body, the Sri Lankan police. This attempt resulted in yet another threat designed to extort money from him. The police officer who made this threat was acting illegally. There is nothing in the independent evidence available to me to suggest that the Sri Lankan government encourages, condones or is unable to prevent the commission by police officers of crimes against Sri Lankan citizens. As the independent information which I have set out above indicates, there are a number of avenues of redress for illegal acts committed by security forces against the Sri Lankan civilian population. The applicant claimed at the hearing that he had attended the offices of the Sri Lankan Human Rights Commission but that he did not lodge a complaint because a particular officer was not present on the day. He made no further attempt, either to the Human Rights Commission or to any other appropriate agency, to seek redress for the crimes committed by the police officer, nor did he make any attempt to bring to the attention of superior police officers the illegal actions of this particular officer.
c)The Tribunal then made a series of findings which refer to the “various avenues available to the applicant” in relation to his complaints about both the LTTE and corrupt police. It concluded: “I am unable to be satisfied that the applicant would have been refused the protection available to any other Sri Lankan citizen had he sought that protection.”
d)These findings gained a more positive form in the Tribunal’s concluding paragraphs, which reached an unhesitating conclusion: “I am satisfied that protection might reasonably have been forthcoming if the applicant had sought that protection”. Its reasoning was:
73. I am unable to be satisfied that the protection available to Sri Lankan citizens is so ineffectual as to give rise to a real chance that the applicant would be persecuted: Efimcova. The independent information indicates that access to justice in Sri Lanka is effective, albeit often slow and inefficient, and that there are other, non-court avenues of protection (with at least one of which, the Human Rights Commission, the applicant was evidently familiar).
74. The applicant is a mature man with a college-level education and was, prior to his retirement, employed in government service. He has acted, in a volunteer capacity, on the Board of a co-operative, he has travelled abroad and is well-informed politically. In my opinion it is reasonable to expect an applicant in such a position to exert himself to access the protection of his country of nationality rather than to travel to a Convention signatory country such as Australia and assert an entitlement to recognition as a refugee. I am satisfied that had he done so he would not have been refused protection, including protection against corrupt police who fail to perform their public duty to investigate a complaint of criminal offences and instead act unlawfully in demanding bribes with threats.
75. In accordance with the reasoning of the Full Federal Court in MIMA v Kandasamy, there cannot be a failure of State protection where the authorities have not been given the opportunity to respond to the harm suffered by the applicant, and I accept the independent information that effective protection, which need not be an absolute guarantee against harm, is available in Sri Lanka and the Sri Lankan government does not encourage, condone or fail to provide effective protection against harm, whether that harm is mere criminality by the LTTE and the Colombo police officer or whether that harm was motivated by a Convention reason or reasons, about which I do not consider it necessary to make a determination. I am satisfied that protection might reasonably have been forthcoming if the applicant had sought that protection.
The grounds of review
The further amended application for review which was filed at the hearing contained the following grounds:
5.The Tribunal exceeding its jurisdiction and constructively failed to exercise its jurisdiction by misconstruing and misapplying the tests for determining whether effective protection was available in Sri Lanka -
1) The Tribunal erred in finding that there had not been a failure of state protection because the Applicant had not given the Sri Lankan government an opportunity to protect him from the harm he feared from the police.
2) The Tribunal applied the wrong test in considering whether there was adequate state protection from the police.
3) The Tribunal erred by ignoring or overlooking the evidence that suggested that the government condoned or was unable to prevent the commission of crimes against civilians by police.
4) In the alternative to (3), the Tribunal erred by basing its decision on its finding that there was no “independent” evidence to suggest that the government was unable to prevent the commission of crimes against civilians by police, when that finding was not open on the evidence.
In his oral submissions, counsel for the applicants accepted that the first ground, which attacked the Tribunal’s mistaken reliance on Kandasamy, could not be pressed as sufficient to obtain relief, since the Tribunal’s reasoning – particularly in its paragraph 75 set out above – showed that the Tribunal based its decision on its independent findings that effective protection had been available to the applicants.
I consider that this concession was correct.
Counsel also did not press grounds 3 and 4 as independent grounds. He accepted that the factual criticisms which he made of the Tribunal’s assessment of effective protection would not themselves give rise to jurisdictional error, except to the extent that they revealed the error which was argued under ground 2.
Ground 2, therefore became the focus of counsel’s submissions. He sought to persuade me that the Tribunal misconceived the legal requirements of the Convention definition which were applicable when assessing effective state protection against non-state agents in a situation such as the present.
In particular, counsel argued that the Tribunal had failed to appreciate that a different standard or test of effective protection should be applied in relation to the applicant’s fears from corrupt police as distinct from their fears from the LTTE. He argued that the Tribunal had made the same error in this respect as had been found by Finkelstein J in VRAW (supra), and that the present Tribunal’s reasoning was indistinguishable to that in the Tribunal decision which Finkelstein J had set aside.
In VRAW, a husband and wife claimed fears of persecution based on the wife’s sexuality as a bisexual and the husband’s political opinions. The wife had lost her government employment, and had been raped by security guards. The husband had received demands for money from an officer of the Federal Security Service, his office was destroyed by fire and the police refused to investigate. The Tribunal accepted their version of events, but found that if the applicants returned to Russia they would have available the “effective protection” of the Russian government and that consequently their fear of persecution was not well-founded (see [2]-[10] of Finkelstein J’s judgment).
Finkelstein J at [14] thought that the Tribunal was correct in approaching the case as “one based on non-state agent persecution in respect of which it was necessary for the tribunal to decide whether the state was unable or unwilling to provide protection”. However, he concluded that it had not applied “the correct test in determining the adequacy of state protection”. He explained:
[15] The tribunal considered the actions of the head of the Administration unit and the security guards, who were state agents or employees, to be those of non-state agents. The tribunal explained its reasons for this approach. The tribunal said that the action of the head of the Administration Unit “could not have been undertaken as part of his official position in the regional administration because the Russian government does not encourage, condone or fail to protect against such discrimination”. The security guards’ conduct was also regarded as conduct of private individuals because it was “serious criminal [conduct] … and as such the Russian government cannot be said to have condoned that harm or to be unwilling or unable to extend protection and redress to the Applicant for that harm”.
[16] Now, I think the tribunal made a serious mistake when it treated the acts of the head of the department and the security guards as non-state action. I appreciate that for many purposes there is a difference between the illegal actions of state agents which are tolerated or encouraged by a state and wholly unauthorised actions of rogue officials. However, as Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891 shows, the actions of rogue officials should be treated as actions of the state for the purposes of considering a claim for asylum.
[17] On the other hand, when the tribunal has to determine whether a person has adequate state protection, the authorities establish that there is a different standard in the case of persecution by non-state agents and rogue state agents.
Finkelstein J explained this “different standard” by reference to United Kingdom authorities. He referred to the “practical standard” suggested by Lord Hope in Horvath v Secretary of State for the Home Department [2001] 1AC 489 at 500:
The standard to be applied is therefore not that would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its nationals.
He then identified a “different standard” applicable to assessing measures of protection in relation to harms feared from “rogue state agents”, by adopting passages from a judgment of Sedley LJ:
[19] In the case of rogue state agents a different standard applies. Here there will only be adequate protection if the state is taking action to curb their illegal and unauthorised actions. In Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891 Sedley LJ dealt with this issue. He said (at 1897):
The concept of ‘non-conforming behaviour by official agents which is not subject to a timely and effective rectification by the state’ seems to me to give a precise edge to the Convention scheme in the present context, and to make a clear distinction between state and non-state agents of persecution. While the state cannot be asked to do more than its best to keep private individuals from persecuting others, it is responsible for what its own agents do unless it acts promptly and effectively to stop them.
Later (at 1898) he said that there must be:
… convincing evidence, where the agents of persecution are themselves officers of the state, that the state not only possesses mechanisms for controlling its officials but operates them to real effect. In this respect, which is practical in form but constitutional in nature, it differs from the standard of protection from persecution by non-state agents …
Finkelstein J concluded that the Tribunal decision before him erred because it “did not adopt this test. It ignored the distinction between state action and non-state action when it found that there was adequate state protection.”
It is this error which the present applicants argue was also made by present Tribunal.
Finkelstein J also concluded that a second error had been made by the Tribunal in VRAW. This was because the Tribunal had suggested that the avenues of protection which it considered provided protection were “to pursue the matter with more senior police or the Procurator, the Ombudsman or the human rights organisations which operate in Russia.” In Finkelstein J’s judgment this indicated erroneous reasoning because:
[23] In substance, when one has regard to the practical rather than the theoretical, a person who for good reason has a subjective fear that he or she might be killed or tortured has an objective basis for that fear when the only avenue of “protection” is the ombudsman, human rights organisations, the procurator or something similar. These institutions do not offer and cannot provide practical protection from persecution.
In the present case, counsel for the applicants did not argue that this second error was made by the present Tribunal. I consider that this point was correctly conceded, since the Tribunal appears not to have confined its consideration to agencies which “do not offer … practical protection from persecution” when it referred to “various avenues available to the applicant” (see above at [16](c)). The avenues referred to by the present Tribunal (see above at [5]) included courts, an Inspector General of Police, rights to compensation, and other special agencies and measures which investigated and provided remedies for complaints of abuse by members of the Sri Lankan security forces and police officers.
The effect of VRAW
Counsel for the applicants sought to show error by the present Tribunal in its failure to use language showing the application of the “test” found by Finkelstein J in the opinion of Sedley LJ when addressing the adequacy of State protection for the applicants’ fears related to extortion by police officers.
However that opinion did not, in terms, formulate a “test”, in the sense of words to be applied as “law”. Sedley LJ’s opinion attempted only to describe legally relevant considerations arising when a Tribunal addresses the sufficiency of a state’s measures of protection against persecution by “rogue state agents”. Caution must therefore be used when attempting to extract a proposition of law from Finkelstein J’s judgment which, when applied, will reveal whether or not a Tribunal has failed to exercise its jurisdictional requirement to apply the Convention definition according to its proper construction when incorporated into the Migration Act. It would be a mistake to understand Finkelstein J as requiring a Tribunal to show awareness of the language of Sedley LJ and to be satisfied in terms of “convincing evidence … that the state not only possesses mechanisms for controlling its officials but operates them to real effect”. Rather, in my opinion, the concept underlying this “test” needs to be identified. Only then can it be decided whether the present Tribunal’s reasoning reveals a misconception of law.
Finkelstein J, following Sedley LJ’s opinion, saw the “test” as arising from a distinction “between state action and non-state action”. The distinction is that, in cases of persecution by rogue state agents, the state necessarily has a relationship to the agent of persecution which is lacking in the case of persecution by an agent unrelated to the state.
As I understand his Honour’s opinion, the consequence of that added relationship is that there is need for an additional or different assessment to be made of the effectiveness of measures for protection against the feared persecution. Those measures should include measures directed at protecting against corrupt or abusive state officials, and should be found to be operating “to real effect” in delivering that protection before it can be concluded that the actions of the rogue agents are not “officially tolerated or uncontrollable by the authorities” (c.f. Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233). The Tribunal must make its assessment in relation to “effective protection” from feared persecution by rogue state agents with an awareness that normal protective measures applying criminal and anti-discrimination laws cannot be assumed to operate effectively against such agents, and that special measures might need to be found to be in existence and to be operating effectively.
Whether this consideration should be designated as a legally distinct question arising only in cases where persecution is feared from rogue state agents, or as a factual consideration arising in these cases under a single more broadly framed legal requirement, is something which was debated in the judgments of Sedley LJ and the other members of the bench in Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74.
I was also referred by the applicants’ counsel to the further discussion of Auld LJ in Bagdanavicius v Secretary of State for the Home Department [2003] EWCA Civ 1605 at [47-48] and to his lordship’s summary at [55]. Auld LJ (with the agreement of the Lord Chief Justice and Arden LJ) preferred not to identify a “different standard” in the manner of Sedley LJ, and agreed with the other members of the bench in Svazas (supra) who said that, within the universal question of whether the state would provide sufficient protection, “the spectrum of intensity of risk for consideration and evaluation runs across the divide between state agency and non-state actor cases.” His Lordship, when summarising his conclusions relevant to the Refugees Convention definition, made no distinction between the two types of case:
2. An asylum seeker who claims to be in fear of persecution is entitled to asylum if he can show a well-founded fear of persecution for a Refugee Convention reason and that there would be insufficiency of state protection to meet it;
3. Fear of persecution is well-founded if there is a “reasonable degree of likelihood” that it will materialise;
4. Sufficiency of state protection, whether from state agents or non-state actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum has a well-founded fear;
5. The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event;
6. Notwithstanding systemic sufficiency of state protection in the receiving state, a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require. [all citations omitted]
For myself, I respectfully find more persuasive an analysis which would apply the above general propositions 4. and 5. to cases of rogue state agents, i.e. a single test focusing on the particular circumstances of the feared persecution and the measures of protection relevant to that persecution which are available in the country of nationality. I do not consider it necessary nor helpful to require decision-makers to apply different standards as to the effectiveness of state protection depending upon a particular classification of the “agent of persecution”.
However, I consider that in practical effect the “universal test” operates in the present circumstances in the same way as the “different standard” approach to an assessment of the adequacy of protection measures against persecution by rogue state agents. This is because both of them require the Tribunal of fact to appreciate the different risks attaching to persecution by state agents – even where unauthorised and criminal, and of the need to find available and effective protective measures to deal with this type of persecution before finding that a fear is not well-founded.
Thus, ultimately, I have no difficulty accepting the correctness of Finkelstein J’s opinions that a Tribunal will err in its application of the refugee definition in a case where persecution by rogue state agents is feared, if it overlooks the feared agent’s relationship to the state when assessing the sufficiency of a state’s protective measures, and, in particular, if it assumes that protective measures will operate as effectively against such an agent as against an “independent” agent of persecution.
For the above reasons, I am not persuaded by the submission of counsel for the Minister “that VRAW should not be followed because it is clearly wrong”. Upon my understanding of the foundations of Finkelstein J’s reasoning, I am able to leave to a superior court the correctness of his Honour’s adoption of the ‘test’ provided by Sedley LJ in Svazas (supra). I should note, however, that I was not persuaded by the argument of counsel for the Minister that I could refuse to follow Finkelstein J’s judgment, and do not consider that it was “plainly wrong” so as to allow a Federal Magistrate to do this (c.f. Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [35-39]). I note that counsel did not point to inconsistency between his Honour’s opinions and any other relevant authority in the Federal Court or High Court.
Conclusions
I turn then to consider whether I am persuaded that the Tribunal failed to appreciate considerations arising from the circumstances that the present applicants feared persecution from rogue agents of the state.
Counsel for the applicants argued that the Tribunal had not considered separately the avenues of state protection from corrupt police as distinct from LTTE harms, and overlooked the different considerations which arose. However, I do not accept that the Tribunal overlooked the difference between these sources of feared harm, nor that it ignored considerations in the manner which Finkelstein J found in VRAW.
As I have indicated above at [16(b)], the Tribunal specifically identified and addressed the issue of whether there were effective anti-abuse and corruption measures established in Sri Lanka to deal with police extortion. It found that there was “no evidence to suggest that the Sri Lankan government encourages, condones or is unable to prevent the commission by police officers of crimes against Sri Lankan citizens”.
Counsel sought to undermine this finding by taking me to evidence which in fact might suggest that the Sri Lankan government might be “unable to prevent” abuse. It is unnecessary for me to recite the various pieces of evidence to which he referred. I consider that his argument relied upon a too literal reading of the Tribunal’s statement “no evidence to suggest”, and that on proper principles it should be understood as intending to say no more than that “there was no evidence capable of satisfying it on the issues in question” (see A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [1] and [18-23], and Wickramasinghe v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18]).
I am not persuaded that the Tribunal failed to address all the evidence bearing on whether the normal criminal processes, together with special complaints mechanisms, would be available and would provide sufficient and effective protection against extortion attempts by corrupt police in Sri Lanka, such as was complained of by the applicants.
I consider that the Tribunal has clearly addressed that issue and has answered it in its finding at its [69] that “there are a number of avenues of redress for illegal acts committed by security forces against the Sri Lankan civilian population”, followed by its subsequent findings at its [74] that, if the applicant had sought to make use of them, “he would not have been refused protection, including protection against corrupt police who fail to perform their public duty to investigate a complaint of criminal offences and instead act unlawfully in demanding bribes with threats”.
Although the Tribunal’s ultimate finding in its [75] (see above at [16(d)]) as to the availability of “effective protection against harm” is directed both at harms from the LTTE and from “rogue state agents”,
I do not infer from this that the Tribunal made the same error as was found in VRAW. I consider that the Tribunal has reached its conclusion with a sufficient awareness that the feared police extortion would be action by a state official and that this gave rise to special considerations in relation to the existence and operation of anti-abuse measures.
I have carefully considered the arguments of counsel for the applicants attacking the factual merits of the Tribunal’s assessment of those measures. These are set out fully in his written submissions, and it is unnecessary for me to recite them. His detailed analysis of the material may have established that the Tribunal’s reasons were unsatisfactory in their lack of detailed findings about pieces of evidence, and that its ultimate conclusions were against the weight of this evidence. However, these are arguments which I do not need to decide. I am not persuaded that there was no evidence capable of supporting the Tribunal’s conclusions. I am not persuaded that the Tribunal’s conclusions on the evidence before it concerning effective protection were so unreasonable or inconsistent or otherwise flawed as to establish misconception of law or other jurisdictional error (c.f. Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/202 [2003] HCA 30 per Gleeson CJ at [9], McHugh & Gummow JJ at [36-7], Kirby J at [81], [128], [137]). Counsel’s submissions do not persuade me to find the error argued under ground 2.
For the above reasons, I must dismiss the application. The parties are agreed upon a costs order which would follow.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 1 July 2005
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