VFAK v Minister for Immigration
[2004] FMCA 18
•6 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VFAK & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 18 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate under section 65 of the Migration Act 1958 to refuse the applicants a protection visa – fear of persecution – serious harm – whether the Tribunal considered section 91R of the Act and whether the applicants were persons to whom Australia had protection obligations under the Refugees Convention and Protocol – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.65, 91, 91R(1)(a), 91R(1)(c), 91R(2)(a), 475A, 477, 478, 479
Judiciary Act 1903 (Cth), s.39B
Chan v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 4128
Minister for Immigration and Multicultural Affairs v Yusef (2001) 180 ALR 1
Plaintiff S134 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 195 ALR 1
Weldt v Minister for Immigration and Multicultural Affairs (2001) FCA 835
Nadarajah v Minister for Immigration and Multicultural Affairs (2002) FCA 368
NAPL v Minister for Immigration and Multicultural Affairs (2002) FCA 1263
Arumugam v Minister for Immigration and Multicultural Affairs (1999) FCA 251
Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260
| Applicants: | VFAK & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 856 of 2002 |
| Delivered on: | 6 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 14 March 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr M Gerkens |
| Solicitors for the Applicant: | Fernandez Canda Gerkens |
| Counsel for the Respondent: | Mr C Horan |
| Solicitors for the Respondent: | Australia Government Solicitor |
ORDERS
That the Application be dismissed.
THAT the Applicant pay the Respondent's costs to be agreed and if not agreed to be taxed on the Federal Court scale.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ856 of 2002
| VFAK & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed the primary decision of a delegate of the respondent refusing under s.65 of the Migration Act 1958 (Cth) ("the Act") to grant applications to the applicants for protection visas on the basis that the criteria for the grant of those visas were not met.
The application is brought pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.475A, 477, 478 and 479 of the Act for constitutional writs. The applications were originally filed in the Federal Court of Australia and were transferred to the Federal Magistrates Court by order of Kenny J on 27 August 2002.
The primary applicant is a 34-year-old male national of Sri Lanka who first arrived in Australia on 7 March 1995 as a holder of a student visa. He was accompanied by his spouse. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 21 February 1996. His wife was included in the application and his daughter was added to it after her birth in March 1996. The application was refused on 7 June 1996.
The applicant was out of time to apply to the Tribunal for review of that decision but was issued with a class 435 visa that provided temporary residence to citizens of Sri Lanka. He and his wife left Australia in December 1996 and returned on 10 May 1997. Their class 435 visas expired on 31 July 1997. The applicant lodged another application for a protection visa on 22 December 1997. That application was refused by a delegate on 19 January 1998 and that decision was affirmed by the Tribunal.
The applicant requested the Minister for Immigration to overturn that decision and sought an exercise of discretion which the Minister did not exercise. The applicant then sought High Court writs. On
25 February 2002 Hayne J made consent orders quashing the decision of the Tribunal and remitting the matter for reconsideration by the Tribunal differently constituted. It is from that decision that the applicants seek review.
The applicants’ case
The applicants do not challenge the facts (as distinct from the inferences drawn from those facts) found by the Tribunal for the purposes of this application. It is thus convenient to set out the Tribunal's summary which appears at pages 115 to 118 of the Court book.
"The Applicant and his spouse made written and oral submissions. Further submissions were made on their behalf by their adviser and they supported their claims with some material from other sources.
The Applicant states he is a Tamil Hindu who was born in Colombo, Sri Lanka. He studied in India between 1984 and 1991. He was married in Colombo in 1994. He wife is an ethnic Sinhalese who was born and raised in that city. His father is a successful businessman and landowner in Colombo and lives there with the Applicant's mother. He has two brothers and a sister in Canada and younger brother in Colombo, living with his parents.
In his first application in February 1996, the Applicant states that he could not go back to Sri Lanka because "the situation is not good". He said "anything may happen. Maybe I can be killed or wounded or kidnapped for money." He told the Tribunal that his initial application was sparse because he made that application without assistance.
Subsequently, he recalled some vague memories of community violence when he was young and stated that his family had sent him to Jaffa to study between 1981 and 1984. In 1983, following communal violence and the displacement of many Tamils to Jaffina, the situation became tense and the Applicant was approached by Tamil militant groups to join them. In an environment of escalating security and conflict, the Applicant and his brother were sent to India to study. He stated that he was introduced to members of the Liberation Tigers of Tamil Eelam (Tamil Tigers/LTTE) in India and that he assisted that group. He continued his assistance to the LTTE in India when the Indian Peace Keeping Forces (IPKF) were sent to Sri Lanka to control the activities of militant Tamils there. The war escalated, Tamil groups factionalised and the IPKF left Sri Lanka. The Applicant feared he would be identified as a member of the LTTE in India by members of opposition groups who were returning to India, so he went back to Jaffina during a relatively peaceful time. However, peace negotiations collapsed and the war between the LTTE and the Sri Lankan authorities, supported by anti-LTTE Tamil militia, resumed.
The Applicant went to Colombo, studied gemology and joined his father's business in gems. He persuaded other people that he was disappointed with the LTTE and, consequently, was not harassed as an LTTE supporter. On the other hand, some cousins were supporters of the LTTE and encouraged him to become a pilot, as the LTTE was developing sea and air units. He undertook a private course to be a pilot, although he needed a government clearance to fly. The course took place at the air force base at Ratmalana airport, near Colombo. He explained that his father was not interested in helping him with that course and it was funded by overseas relatives who wanted him to help the LTTE.
He met his future wife, who is Sinhalese and, although that helped him obtain some measure of protection by the security forces, their respective parents objected to the relationship and marriage. Her brothers, in particular, pressured them. Nevertheless, they married in 1994 without informing their families. His cousins understood his plight and encouraged him to extend his aviation experience abroad, in expectation he would return and assist the LTTE. For that purpose, he came to Australia to continue his aviation studies, enrolling for a commercial pilot's course. He abandoned the course after seven months and moved to Melbourne, in anticipation of the birth of their first child.
Their daughter was born in March 1996 and the Applicant decided not to pursue plans to assist the LTTE any longer, although he still supported the Tamil cause in general. He stated he feared returning to Sri Lanka because of the callous attitude of the LTTE to Sinhalese citizens in Colombo. Some relatives encouraged him to return to help the LTTE but he feared for his family and was thus provoked into lodging the first refugee application. He explained that he did not mention the LTTE in that application because he thought he could do so at an interview. However, he did not receive the invitation to attend an interview and his application was refused. He then failed to apply for RRT review of that decision in time, but he was later issued some temporary protection through the class 435 visa and did not pursue a refugee application any further because he believed he had sufficient protection and would be given more permanent protection after representations were made by members of the Tamil community.
In late 1996, officials from DIMA came to his house to check his migration status. Although he had a current visa, he felt insecure after that visit, suspecting he had been dobbed in by LTTE sympathisers in Australia. In the meantime, his wife had improved her relationship with some members of her family who advised her it would be good for them to return and settle in Colombo. At the same time, the Applicant's father's business was expanding and it would be convenient for the Applicant to take over some of his father's responsibilities in Colombo. In those circumstances they decided to return to Colombo.
After returning to Colombo, the Applicant found that some of his wife's relatives still resented her marrying a Tamil. They believed he would attract undue attention on the family from the authorities and pressured her to get out or pressured the Applicant to join the Air Force. They threatened to tell the security forces that the Applicant was associated with the LTTE. On one occasion in March 1997 the Applicant's wife was assaulted by one of her brothers and had a miscarriage. She explained she had attempted to intervene in a fight between her husband and the brother, who had accused the former of helping the LTTE. They told the Tribunal that the Applicant was subsequently detained at a security check and kept in custody and interrogated for four days before he was released.
The Applicant also had to endure constant security screening when he was outside the house. He was detained for short periods but was released after his wife's relatives intervened and he satisfied the authorities that he was a commercial pilot, married to a Sinhalese. He claimed he was detained on four or five occasions and kept for a few days each time. He explained to the Tribunal that his National Identification Card (NIC) showed his residence in Jaffina, but he used his pilot ID to negotiate security procedures in Colombo. Nevertheless, he feared that his former connection with the LTTE would be disclosed at some stage and, with assistance from his wife's relatives to assist his exit, he and his wife returned to Australia in May 1997. He understood that his visa would expire in July 1997, but he did not make a refugee application because he was informed that it was unlikely the Australian government would return unwilling Tamils to Sri Lanka. Subsequently, he was detained by the Immigration Department because he did not have a visa and he made another application for protection.
The Applicant fears he will be harassed and persecuted by members of the LTTE because he abandoned its cause. He also fears that his brother-in-law will inform on him to Sri Lankan officials and allege he is linked with the LTTE.
His wife told the Tribunal that she fears she and her children will be taken in and persecuted because her husband is a Tamil who has helped the LTTE. She said that her husband had been taken in about five times but her mother's sister had arranged his release. The last time was after her brother assaulted her. She added that she had not maintained contact with her family since she returned to Australia in 1997."
The Tribunal's decision
The Tribunal accepted that the applicants were Sri Lankan and that the first applicant was Tamal and his wife Singhalese. It found the first applicant had been a supporter of the Liberation Tigers of Tamal Eelam (LTTE) in the past but he was not known to authorities for this support. The Tribunal accepted that the first applicant was stopped at security checkpoints in routine security procedures and that it was plausible that he was taken to the police station on some of those occasions. However the Tribunal found that the first applicant was able to provide proof of his identity and status within a short period and that he was released without harm on each occasion that he was checked, because the security forces had no interest in him and because, even if he had supported the LTTE in the past in India, he was unknown to, and of no interest to the security forces in Sri Lanka and could establish that he had no links with the LTTE.
The Tribunal rejected the first applicant's claim of prolonged detention on numerous occasions and of mistreatment. In doing so it had regard to the following considerations:
·The claims were not made at any point either in or in relation to the first applicant's initial protection visa application;
·The significance of the claim of mistreatment was such that it was unlikely to have been overlooked;
·The instances and length of detention claimed by the first applicant have increased over time;
·The claims were at odds with the first applicant's willingness to return to Sri Lanka in 1996;
·His claims did not sit comfortably with the first applicant's initial delay in making a protection visa application; and
·The claims also did not sit with the first applicant's delay in making the second protection visa application following his return to Australia from Sri Lanka in 1997 and the coincidence of the timing of that application with his arrest as an unlawful non-citizen.
Generally the Tribunal found that the first applicant's explanation for changes in his claims were unsatisfactory and that he and his wife had embellished accounts of his detentions.
Having regard to its conclusions concerning the facts claimed by the first applicant the Tribunal concluded that there was not a real chance that the first applicant faced persecution by reason of his real or imputed political opinions relating to the LTTE, or on account of being Tamal, and reached a similar conclusion in relation to his wife.
The Tribunal also found that, in any event, even if the first applicant did face a real chance of persecution from the LTTE, if he remained concerned of such a risk he could turn to the authorities, who were willing and able to protect citizens threatened by the LTTE.
The Tribunal further found there was not a real chance that the first applicant's brother-in-law falsely informed him. The Tribunal was satisfied that, in any event, if the brother-in-law did falsely inform on the first applicant, the history of contact with the authorities demonstrated that he had satisfied the authorities of the falsity of the reports.
The Tribunal accepted that the first applicant and his wife might face difficulties due to their mixed marriage but only from his wife's immediate family, and she had given evidence that she had lost contact with her family since 1997 and desired to remain out of contact with her family. Hence, the Tribunal found that there was not a real chance of persecution at the hands of those families. The Tribunal also found that, in any event, if harassment did continue, it would not be for a Convention reason. Moreover, the Tribunal found that the first applicant and his family could avail themselves of state protection in this regard.
The Tribunal considered country information in relation to the position of Tamals living in Sri Lanka and concluded that young male Tamals who are from the north and east where the war was being conducted, who congregate in areas of high concentration of Tamal lodging houses, cannot communicate in Singhalese, have no history of work or residence in Colombo and no network of friends or relatives to vouch for them and cannot explain their reason for being there, might be at risk of being detained for a prolonged period and suffer from mistreatment during that period. Whilst noting that other people who fall outside that general profile are never persecuted or are not at risk of persecution the Tribunal was assisted in assessing the likelihood of persecution for the applicant against this profile.
The Tribunal accepted that while the Sri Lankan people are currently enjoying a period of peace, there is ongoing tension in Sri Lanka and that sporadic terrorists attacks and oppressive security procedures that previously permeated Colombo make it an undesirable and insecure place for the applicants to raise a family. However the Tribunal was not satisfied that the applicant faced a real chance of persecution because he is a Tamal or for reasons of his real or imputed political opinions. It was not satisfied that he and his wife were to face a real chance of persecution because they have a mixed marriage or that his family members would otherwise be imputed to hold particular political opinions because of the applicants' situation. The Tribunal was not satisfied that the applicant faced persecution at the hands of the LTTE or that his wife or children were at real risk of persecution by members of that group. The Tribunal was satisfied that if they returned to Sri Lanka they could avail themselves of state protection against attacks by the LTTE and there was not a real chance that they would face persecution for Convention reasons.
Thus the Tribunal concluded that the applicants are not persons to whom Australia has protection obligations under the Refugees Convention and Protocol and they did not meet that criterion for the purposes of granting protection visas.
The applicants' grounds
The applicants relied upon three grounds which essentially interrelate. The applicants relied upon the following findings by the Tribunal to support their contentions:
“In the light of the available information, it is plausible that the applicant was stopped at checkpoints in routine security procedures and taken to the police station on some of those occasions. He was released when he satisfied the authorities as to his identity … the Tribunal does not believe, however, that he was detained for prolonged periods on any of those occasions … the Tribunal does not accept he was detained for long periods and finds that he was able to provide proof of his identity and status in a short period and he was released without harm on each occasion he was checked because the security forces had no interest in him at all.”
The applicant contends that despite the initial use of the expression
“it is plausible”rather than “I find”, it is implicit in those passages that the Tribunal was satisfied, positively, that he was stopped at checkpoints and taken to the police station and that it is implicit that he was forcibly taken to the police station on some occasions.
The applicant contends that the Tribunal erred in law by failing to find that each forcible removal to a police station was an act of ‘Convention persecution’ requiring the Tribunal to determine at the time of its decision whether the applicant had a well founded fear that an act or acts of that nature would recur if he returned to Sri Lanka at the time of the decision or within the reasonably foreseeable future. In support of this contention the applicant cited Chan v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 4128 to 416 per Mason CJ. The applicant contended that each such act amounted to “serious harm” as defined in s.91R(2)(a) of the Act being a threat to his liberty. Further, the essential and significant reason for the threat to his liberty is his Tamal ethnicity (s.91R(1)(a)) and the behaviour of the authorities is systematic and discriminatory (s.91R(1)(c)). The applicant contends that taking the decision as a whole the Tribunal failed to appreciate that forcible removal to a police station because of Tamal ethnicity was a threat to his liberty and failed to look at the future to assess the chances of continuance of that persecution. That, it is contended, resulted in it identifying wrong issues, asking itself a wrong question, ignoring relevant material, and making an erroneous finding. It is submitted that in doing so it committed jurisdictional error in terms of that concept as described by the High Court in Minister for Immigration and Multicultural Affairs v Yusef (2001) 180 ALR 1 at page 21, and Plaintiff S134 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 195 ALR 1.
The present application
It is clear on the authorities that it is a question of fact and degree as to whether there is serious harm of a persecutory nature and that this is a central matter for the Tribunal. In Weldt v Minister for Immigration and Multicultural Affairs (2001) FCA 835 at paragraph 23, Finkelstein J said:
“The prosecutors then say that the Tribunal failed to consider whether a six day detention suffered by the prosecutors was persecutory, and failed to consider whether there is real chance of such treatment occurring again. It is true that in two paragraphs dealing with the six day detention the Tribunal did not specifically say "this is not persecution". However, it is clear that what the Tribunal decision and reasons were in relation to this incident. The Tribunal said that it had doubts whether the detention actually happened, noting that it did not find Mr Weldt's account of his arrest and detention entirely satisfying. The Tribunal went on to say that if the detention did happen, the result was not serious for the prosecutors as they were released and were able to travel back to Colombo and leave Sri Lanka from an official airport. …
It is apparent that the Tribunal did not consider the level of maltreatment was sufficiently serious to constitute persecution, and if it did, it was not carried out for a Convention reason. These views were open on the evidence.”
In Nadarajah v Minister for Immigration and Multicultural Affairs (2002) FCA 368 at par 36 Carr J said:
“The evidence was that the applicant had been detained from
11 am till the evening of the day in question. The Tribunal so found. There was no claim of any mistreatment. Whether that detention was serious enough to amount to persecution was a matter of fact for the Tribunal. In my view it was open to the Tribunal on the evidence to find that, in circumstances of an army security roadblock, the detention and extraction of a bribe was not sufficient to amount to persecution.”
In NAPL v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1263, Wilcox J said at paragraph 17:
“… It is not apparent to me why the Tribunal member thought the legitimate exercise of their duties would involve police holding a person for weeks, or months, at the time, without charge, and assaulting him during his detention. However I think the Tribunal's conclusion is one of fact and not susceptible to review in this Court.”
And in Arumugam v Minister for Immigration and Multicultural Affairs (1999) FCA 251, Lindgren J said at paragraph 37:
“The present issue is one of fact and degree and so is precisely the kind of issue the determination of which is a matter for the RRT not for this Court: cf Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 (Hill J) at 271. While I have sympathy for the applicant, the conclusion reached by the RRT does not appear, on the material before me, to be one that was not open to it.”
In Prahastono v Minister for Immigration and Multicultural Affairs (supra) Hill J said at page 271:
“As I have already noted, where there is a matter of fact and degree involved as there almost invariably will be when the question arises whether the particular conduct amounts to persecution, the Tribunal will be the final arbiter.”
The applicant's contention is that s.91R widens the scope of “serious harm” and was overlooked by the Tribunal. The applicant contended that in the past it was necessary to consider the nature and extent of the harm but that s.91 was designed to interfere with the predisposition by defining serious harm to include a threat to a person's life or liberty. The removal to a police station without consent, even for a short time and without maltreatment, it is contended is a threat to the person's liberty.
This submission however ignores the obvious fact that it is still a matter for the Tribunal to be satisfied about whether there is “serious harm”. In my view on the evidence it was open to the Tribunal to find that the detentions of the applicant and his subsequent release after a short time was not serious harm, and nothing to suggest in the reasons that the Tribunal did not consider the questions the Act required it to. The Tribunal asked the question whether the applicant fell into the category of a person who had been persecuted for Convention reasons and whether the persecution involved serious harm and answered that question in the negative.
In any event, the question of whether the facts amounted to a serious harm was, as the authorities make clear, a matter of fact and degree in which the Tribunal is the final arbiter.
As Hill J said in Prahastono v Minister for Immigration and Multicultural Affairs, it is difficult not to feel sympathy for the applicants in this case (being in Australia now for a number of years) and as the Tribunal noted, the detention in Sri Lanka and the sporadic terrorist attacks and oppressive security procedures that previously permeated Colombo make it an undesirable and insecure place for the applicants to raise a family. However, the Court is not empowered to decide the merits of the applicants' claim to refugee status and is empowered only to consider whether the Tribunal in determining that it was not satisfied that the applicant was a person to whom Australia had Convention responsibilities committed a reviewable error. The applicant has not established that to be the case and the application must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 6 February 2004
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