Vpam v Minister for Immigration
[2005] FMCA 927
•5 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VPAM v MINISTER FOR IMMIGRATION | [2005] FMCA 927 |
| MIGRATION – Review of decision of Refugee Review Tribunal – protection visa application – well-founded fear of persecution in part of country of origin – reasonableness of proposed relocation within country – findings of fact – no jurisdictional error – application dismissed – costs. |
| Judiciary Act1903 (Cth) Migration Act1958 (Cth) |
| NASB v Minister for Immigration & Multicultural & Indigenous Affair Mok Gek Bouy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | VPAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 380 of 2004 |
| Judgment of: | Hartnett FM |
| Hearing date: | 24 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 5 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.A. Gibson |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Ms H.M. Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDER:
The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 380 of 2004
| VPAM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant made application to the Federal Court of Australia Victoria District Registry on 26 May 2003. By order of North J. that proceeding was transferred to this court on 14 April 2004. The applicant filed an amended application on 20 October 2003 and relies on that amended application and contentions of fact and law filed 20 October 2003. In response the respondent has filed a court book and contentions of fact and law, those contentions being filed 10 November 2003. The application is made under section 39B of the Judiciary Act1903 (Cth) and section 475A of the amended Part A of the Migration Act1958 (Cth) (the Act) for writs of prohibition and certiorari and for a declaration in relation to a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant is a national of Cambodia. He was born on 22 February 1973. He arrived in Australia on 28 June 2002 on a business short-stay visa valid for a visit of two weeks. The applicant lodged an application for a protection visa on 4 July 2002 with such application being refused by the respondent's delegate on 26 July 2002.
The applicant then lodged an application for review with the tribunal on 21 August 2002. The applicant attended the Tribunal hearing. By a decision dated 7 April 2003 the Tribunal affirmed the decision not to grant a protection visa. The applicant then filed his application for review in the Federal Court.
The applicant's principal contention is that the decision of the Tribunal was affected by a jurisdictional error constituted by its failure to address claims made by the applicant in assessing whether he had a well‑founded fear of persecution from the government authorities or persons acting at their behest if he was to return to Cambodia, and to apply the correct test to establish whether his fears were well founded. Specifically, the applicant claimed the Tribunal misunderstood and failed to deal with his claim that he had a well-founded fear of persecution should he return to Cambodia
“as a local activist in the SRP during the lead-up to and aftermath of elections in the context of recurrent election campaign violence”.
The applicant argued the Tribunal failed to turn its mind to the question of the prospective likelihood of risk of harm in the context of any future election after his return, particularly in view of its acceptance of the violence attendant upon the political process in the applicant's country of origin, irrespective of what it found to have been the lack of any past persecution suffered by him.
The applicant submits that by reason of the Tribunal's concentration on the applicant's claims of past persecution, which appropriately is the usual starting point for a consideration of whether an applicant merits the protection of the Convention, the Tribunal did, however, fail to turn its mind to the prospective risk of persecution which it was obliged to do notwithstanding that it had rejected the occurrence of incidents of past persecution. The applicant relied on the principle that absence of past persecution does not necessarily mean that an applicant does not have a well-founded fear on return as noted by Sackville J. in NASB v Minister for Immigration (2003) FCA 1046.
The applicant's claims
The applicant claimed that he joined the Sam Rainsy Party (SRP) in 1998 and was an active supporter of the party during the local election on 3 February 2002. He claimed that whilst campaigning he used the opportunity to attack the government and that since the election his life had been in danger and that he had been followed whenever and wherever he went. He claimed on one occasion to have been punched and hit on the ground by an unknown group and claimed that if he returned to Cambodia he would be harmed by the current government and their secret police. Those claims were made in the initial application.
At interview with the delegate on 25 July 2002 the applicant claimed that he campaigned in the elections on 3 February 2002 in Kampot.
He claimed that on 10 March 2002 a group of four or five people on motorbikes crashed into him requiring stitches to his lower leg. He claimed because of that incident to have moved to Phnom Penh to live and that whilst leaving a restaurant in Phnom Penh on 10 May 2002 he was attacked and punched from behind by a group. He claimed he did not know who the perpetrators of either assault were but believed they may have been supporters of the government and that the attacks had resulted from his criticisms of the government. He claimed that people whom he believed belonged to the secret service were constantly following him. Since 10 May 2002 he had not been the victim of physical violence because he had constantly changed his place of residence. He had not reported either the March or May incidents to the police because they would not take the matter seriously. In addition, some members of the police force would also be members of the ruling party and would not investigate the matters properly.
In his application to the Tribunal, the applicant said that at the election of 3 February 2002 he was "hit by the local authority" in Kampot Province and that on 10 May 2002 in Phnom Penh “a group of motor riders” chased him from behind for the purpose of hitting him. At the hearing before the Tribunal he said he had not been harassed for reasons of his political opinion until the campaign for local elections in 2002, and that his assailants in early 2002 had told him not to work for the SRP and his assailants in mid-2002 had threatened to kill him. He claimed the first attack to have not provoked him to move from Kampot to Phnom Penh because he had always lived in Phnom Penh. He claimed his own government department and another government department supported his application to come to a Convention in Australia which was his reason for entry to Australia.
Consideration
The Tribunal noted when considering whether an applicant had a "well‑founded fear of persecution" as referred to in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol that the term required the applicant have a subjective fear and there be an objective justification or foundation for that fear. The Tribunal clearly looked to the prospective nature of that assessment by saying same was reflected in Mok Gek Bouy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1 where Keely J. made the following observation with regard to the impact which future events may have on the issue of refugee status:
In my opinion, the question of whether there was a real chance of persecution necessarily required the delegate to look at the future insofar as it was reasonably foreseeable at the time when he was making his decision. On the one hand the delegate was not required to look at the possibility of something occurring in 50 years' time .. On the other hand a delegate errs in law, in my opinion, if he confines his attention to whether there is a real chance of persecution on the day after the applicant's return.
The Tribunal found the applicant to be a national of Cambodia and accepted that he joined the SRP Party in the late 1990s and did not encounter any difficulty until 2002. The Tribunal found that although it was plausible that the applicant was hit by a motorcycle in early 2002 and knew his assailants were opponents of the SRP who also told him not to work for that group, that he would have made mention of that when he first made his claims. The Tribunal was satisfied that he had taken the fact that he was involved in an accident and sought to add a Convention dimension to it by contriving a claim that those responsible for his accident were political opponents. Similarly, the Tribunal found that if the applicant had been the victim of a second assault, he would have mentioned that assault in his original claims. His failure to do so led the Tribunal to conclude that he had fabricated the claim that he was assaulted a second time. His failure to report the alleged assault to the police or other authorities or otherwise seek protection through the connections his work as a public servant would have furnished also indicated to the Tribunal that the applicant did not believe he was in danger of future attacks. Likewise his willingness to return to Cambodia after two trips abroad and his failure to seek asylum while he was on those trips also led weight to a conclusion by the Tribunal that the applicant was not in genuine fear of persecution for reasons of his political opinion.
The Tribunal said as to country information:
The information he has provided indicates that political campaigning can be violent in Cambodia. The tribunal does not accept he has been a victim of such violence. His evidence does not disclose that he has ever encountered any persecution for reason of his political opinion or for any other Convention reason in the past. His failure to report the alleged attacks and his willingness to remain in Cambodia after the claimed assault of early 2002 until he could arrange to come to a Convention in Australia, indicates that he did not have a genuine fear of persecution. It is consistent with his willingness to return to Cambodia on two occasions after he joined the SRP. The tribunal finds he did not have a genuine fear of persecution when he departed Cambodia and it also finds that he does not have a genuine fear of persecution should he now return to his country of nationality.
In any event, available information leads it to conclude that any fears he has of being persecuted for reason of being a member of the SRP is not well-founded…
In conclusion, in considering the applicant's claims, the Tribunal said it was:
...not satisfied that he has a genuine, subjective fear of persecution for Convention reasons. Even if he did harbour a genuine fear, he has had minimal involvement in political activities and has not been harassed in the past for any links with political parties. In the circumstances, and despite the violence that is attendant of political process in Cambodia, the tribunal finds that there is not a real chance he faces persecution for reason of his political opinion should he return to that country.
The Tribunal expressly took into account the fact that violence attends the political process in Cambodia and concluded the applicant was not at risk of persecution in the future. I find the Tribunal did turn its mind to the question of prospective harm arising in future election campaigns. The Tribunal considered past events, which was entirely appropriate for it. That approach has the mandate of the High Court. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said that:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
The question for the Tribunal was whether there is a real risk of persecution upon the applicant's return to Cambodia. The Tribunal considered that matter. It was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in the foreseeable future upon return to Cambodia. The Tribunal did not fall into error in assuming that a prior history of persecution was essential to establishing a well-founded fear of persecution for a Convention reason (see NASB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1046 Sackville J.) but rather looked at the question of election violence, looked to the applicant's past experiences, and then irrespective of those experiences, concluded that notwithstanding the existence of election violence in Cambodia, there was not a real chance the applicant faced persecution for reasons of his political opinion. In addition the Tribunal was not satisfied that the applicant had a genuine subjective fear of persecution. I accept the submissions of Counsel for the respondent that in view of the Tribunal's finding on this matter, the applicant could not succeed on the point raised by him, even if there were otherwise a proper basis for it, which I find there is not. The application must be dismissed with costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Hartnett FM.
Associate: Tracey Jones
Date: 5 July 2005
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