VFAH v Minister for Immigration
[2004] FMCA 203
•5 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VFAH v MINISTER FOR IMMIGRATION | [2004] FMCA 203 |
| MIGRATION – Appeal from decision of Refugee Review Tribunal – misconstruction of “effective protection” – real chance of persecution – appeal dismissed. |
Migration Act 1958 (Cth), ss.36, 91R, 474, 475A
Federal Court Rules 1979 (Cth), Order 82, Rule 7
Federal Court of Australia Act 1976 (Cth), s.32AB
Judiciary Act 1903 (Cth), s.39B
Craig v South Australia (1995) 184 CLR 163
Kirushanthan Paramananthan v Minister for Immigration and Multicultural Affairs; Minister for Immigration & Multicultural Affairs v Vijayakumar Sivarasa [1998] 1693 FCA
Minister Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
| Applicant: | APPLICANT VFAH of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1020 of 2002 |
| Delivered on: | 5 April 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 7 April 2003 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kissane |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondent: | Ms Moore |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
THAT the appeal is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1020 of 2002
| APPLICANT VFAH of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
The applicants are a husband, wife and two children, all citizens of Sri Lanka. They arrived in Australia on 28 September 2000 and lodged applications for protection (class XA) visas (sub-class 866) with the Department of Immigration and Multicultural Affairs in accordance with the Migration Act 1958 (Cth) (“the Migration Act”) on 25 October 2000. Pursuant to the provisions for the issue of a protection visa in respect to applicants who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. Only the applicant wife has made specific claims under the Refugees Convention and for these reasons she has been referred to as the applicant by the Refugee Review Tribunal (“the Tribunal”).
On 15 November 2000, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection (class XA) visas; the applicants applied to the Tribunal for review of this decision on
11 December 2000. In the Tribunal decision of 30 May 2002, following evidence from both the applicant wife and the applicant husband, the decision of the Minister’s delegate was affirmed. Summarily, the Tribunal held that both the applicant wife and the applicant husband were not persons to whom Australia had protection obligations under the Refugee Convention; consequently both applicants did not satisfy the criterion set out in section 36(2) of the Migration Act for a protection visa.
The applicant’s claims
The applicant claimed that she feared persecution from members of the People’s Alliance (PA) political group due to her involvement in the activities of the United National Party (UNP). The applicant also claimed that she was subjected to harassment from the Sinhalese population due to her race and religion; the applicant wife is of Burgher ethnicity and a Roman Catholic.
On 23 July 2002, the applicant wife lodged an application in the Federal Court of Australia, being V474 of 2002, pursuant to section 475A of the Migration Act and section 39B of the Judiciary Act 1903 (Cth). A court book was lodged on 23 September 2002. On 4 October 2002, by order of Goldberg J of the Federal Court of Australia, the matter was transferred to the Federal Magistrates Court pursuant to section 32AB of the Federal Court of Australia Act 1976 (Cth) and Order 82, Rule 7 of the Federal Court Rules 1979 (Cth).
On 8 October 2002, the applicant wife lodged an amended application seeking that the decision of the Tribunal be set aside on the alternative bases that the Tribunal had made a jurisdictional error, had failed to exercise its jurisdiction or had exceeded its jurisdiction. The applicant claimed that the Tribunal had failed to correctly construe and apply Article 1A of the Refugees Convention and had misconstrued the concept of “effective protection”. On the latter point, the applicant argued that the Tribunal had failed to ask whether or not, due to any protection available to the applicant, her fear was no longer well-founded.
The Refugee Review Tribunal decision
I adopt the summary of the Tribunal’s findings as succinctly and accurately outlined in the respondent’s contentions, namely:
a)The RRT held that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol and therefore she did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
b)In particular the RRT found in relation to the applicant’s claims of religious persecution that the applicant was a Burgher and Roman Catholic and that Buddhist monks had harassed or intimidated her for religious reasons when the Pope visited Sri Lanka in 1997. However the RRT was not satisfied that the Sri Lankan government condoned the actions of the Buddhist monks at that time nor that the applicant had a well-founded fear of being persecuted for reasons of her religion. The RRT referred to and accepted the UK Home Office report in respect of religious tolerance in Sri Lanka and the Sri Lankan government’s respect for the right to freedom of religion in practice.
c)In relation to the applicant’s claims of “employment discrimination” because of her ethnicity, the RRT found that the applicant had not suffered sufficiently serious harm in respect of her employment to constitute persecution nor had her husband suffered persecution for reason of his ethnicity or for any other Convention reason. The applicant’s wife gave evidence at the RRT hearing that she had been employed in Colombo from the early 1990s to 2000 and that her husband’s business had failed on two occasions. However, no claim was made that his business failed because of his ethnicity. The RRT concluded that the applicant and her husband did not have a well-founded fear of being persecuted by the Sri Lankan government or any other person in Sri Lanka for reasons of their ethnicity.
d)In relation to the applicant’s claims based on political persecution, the RRT accepted that the applicant and her husband were active UNP supporters and that they had campaigned for their local UNP candidate in the 1994 and 2000 elections and that People’s Alliance (“PA”) supporters threatened the applicant and her husband because of the campaigns.
e)The RRT ultimately concluded that:
“adequate and effective state protection in relation to political violence has been and is available to the applicant wife and the applicant husband from the Sri Lankan authorities, and that it will continue to be available for the reasonably foreseeable future. Accordingly, I find that the applicant wife and the applicant husband do not have a well-founded fear of being persecuted by PA supporters for reasons of their political support for the UNP.” (CB p. 11)
f)In reaching this conclusion the RRT quoted and relied upon the appropriate line of cases in relation to state protection. From these authorities the RRT considered the level of efficiency of the police, judicial and related law enforcement agencies and services and the existence of the rule of the law and an infrastructure of laws designed to protect nationals in Sri Lanka as relevant to its consideration of whether or not the applicant was unable or unwilling, owing to a well-founded fear of persecution, to avail herself of the protection of the country of her nationality. The RRT considered these principles both in light of the evidence of the applicant and the DFAT situation reports and information.
g)In particular, in respect of the 1994 threats the RRT held that it was not prepared to accept that effective and adequate state protection was not available to the applicant and her husband at that time because on her evidence she had complained to the police twice (in September 1994 and January 1995) about the threats made against her by PA supporters but that when asked by the police to describe the people who had threatened her she was unable to do so.
h)In relation to the threats at the time of the 2000 election, the RRT considered that the applicant’s approach to the police was because she expected protection from them and the fact that the police had requested a statement and asked the applicant to identify the people who had threatened her as evidence that they took her complaint seriously.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
“owing to 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, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example MIMA v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The applicant’s submission is that the Tribunal committed jurisdictional error in that it dealt with the issue of effective state protection and then moved immediately to the question of whether the applicant had or had not a well-founded fear of persecution for a Convention reason. Counsel for the applicant claimed that having found that Sri Lanka offers adequate and effective state protection, the Tribunal should have then proceeded to consider the question of whether the applicants faced a real chance of persecution. (See Minister Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95). It was Counsel’s further submission that the Tribunal had not asked itself whether that adequate or effective state protection was sufficient to remove a real chance of persecution and, whether or not, due to any protection available to the applicant, her fear was no longer well-founded.
In determining whether there is a real chance of persecution Merkel J stated in Kirushanthan Paramananthan v Minister for Immigration and Multicultural Affairs; Minister for Immigration & Multicultural Affairs v Vijayakumar Sivarasa [1998] 1693 FCA:
“The correct process as outlined in Wu Shan Liang and Guo requires an assessment of the likelihood of future events based, inter alia, upon the weight given to findings the RRT makes concerning past events.”
In my view this is exactly what the Tribunal did. In order to assess whether the applicant faced a real chance of persecution or serious harm in the immediately foreseeable future the Tribunal made findings about past events. Indeed the Tribunal found:
“I accept that the applicant wife and the applicant husband were active UNP supporters, and that she and they campaigned for their local UNP candidate in the 1994 and 2000 elections. The applicant wife’s evidence in this respect was consistent, detailed and articulate.
Further, I accept that PA supporters threatened the applicant wife and the applicant husband because they had campaigned for the UNP at the 1994 and 2000 elections. The applicant wife’s evidence at the hearing in this respect was consistent with the evidence in her protection visa application, and consistent with reports of inter-party election harassment and violence at those times (see report by Agence France Presse in 1994, Inform Situation Report of 1994 and DFAT report of 1999 (CX 34305)).
However I do not accept that effective or adequate protection was not available to the applicant wife of the applicant husband in respect of the threats made against them by PA supporters.” (CB p. 86)
The Tribunal then went on to consider the evidence given by the applicant wife at the hearing regarding her complaints to the police on two occasions in 1994 and 1995 and the police’s response to those complaints. Further, the Tribunal took into account the applicant’s evidence that she again approached the police in 2000 and they responded appropriately. The Tribunal further found that she approached the police on this occasion because she expected protection from them. In addition, the Tribunal took into account the Inform Situation Report, which indicated that inter-party violence was not condoned by the former UNP or PA governments and it had affected both UNP and PA supporters, and stated that it did not accept that inter-party violence would be condoned by the recently elected UNP government. The Tribunal also found, in light of the reports it referred to and the applicant wife’s evidence, that there was a reasonable level of efficiency exhibited by the police, judiciary and related services in Sri Lanka.
The Tribunal then makes its findings about the applicant’s well-founded fears with reference to what has happened in the past, what is occurring at present and what is likely to happen in the future:
“It follows that I find that adequate or effective state protection in relation to political violence has been and is available to the applicant wife and the applicant husband from the Sri Lankan authorities, and that it will continue to be available for the reasonably foreseeable future. Accordingly, I find that the applicant wife and the applicant husband do not have a well-founded fear of being persecuted by PA supporters for reasons of their political support for the UNP.” (CB p. 88)
And finally:
“Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant wife or the applicant husband are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, they do not satisfy the criterion set out in s. 36(2) of the Act for a protection visa.” (CB p. 89)
Accordingly, I do not accept that the Tribunal failed to correctly construe and apply Article 1A of the Refugees Convention or that it misconstrued the concept of “effective protection” in that it failed to ask whether, due to any protection available to the applicant, her fear was no longer well-founded.
The appeal will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 5 April 2004
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