FEDERAL COURT OF AUSTRALIA

Peiris v Minister for Immigration & Multicultural Affairs [1999] FCA 880

MIGRATION – application for a protection visa – whether persecution due to being a member of a political party necessarily constitutes persecution motivated by political opinion.

Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 cited

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited

Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165 cited

Alphonsus v Minister for Immigration and Multicultural Affairs [1999] FCA 289 cited

Okere v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 678 distinguished

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 cited

Voitenko v Minister for Immigration and Multicultural Affairs [1999] FCA 428 distinguished

Abebe v the Commonwealth of Australia [1999] HCA 14 followed

MANEL ALEXANDER PEIRIS & ANOR v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1134 of 1998

HILL J

6 AUGUST 1999

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The first applicant, Manel Alexander Peiris, is a citizen of Sri Lanka.  The second applicant, Rani Calista Peiris, is his wife.  On arrival in Australia on 27 October 1996 they applied for a protection visa.  Their application was refused and they sought review of that decision from the Refugee Review Tribunal (“the Tribunal”).

2                     As the Tribunal correctly pointed out in its reasons, to succeed Mr Peiris had to satisfy the Tribunal that he was a person to whom Australia had protection obligations under the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (both compendiously referred to herein as “the Convention”).  Australia will have protection obligations under the Convention if the person seeking protection is a refugee defined in Article 1A(2) of the Convention as any 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; …”

3                     Mrs Peiris’ claim stands or falls on that of her husband.

4                     The Tribunal rejected the applicants’ claims finding (and its reasons will be elaborated upon shortly) that while Mr Peiris had a fear of persecution or harm in the event that he returned to the district where they had lived, he did not face persecution by reason of his political opinion.  Henceforth in these reasons, unless otherwise stated, I will refer to Mr Peiris alone as the applicant. 

5                     I should say at this stage that it is clear from the transcript that the Mr Peiris, who was represented by an experienced solicitor in the field, conceded that to succeed it was necessary for him to show that the fear of persecution arose by virtue of a political opinion express or imputed rather than for any other Convention reason including membership of a social group.  No doubt he did so having regard to the difficulties of categorising the relevant social group (cf Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225) other than by reference to those said to be persecuted.  The Tribunal found that even if it were wrong the applicant would have the protection of the Sri Lankan state if he relocated elsewhere. 

6                     It is now conceded by counsel for the Minister that in considering the issue of relocation the Tribunal applied the wrong legal test as expressed in decisions of this Court including Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442;  Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165 and Alphonsus v Minister for Immigration and Multicultural Affairs [1999] FCA 289.  Counsel for the Minister nevertheless submitted that whilst stating the wrong test the Tribunal had in fact applied the right one.

The Tribunal’s Reasons

7                     The present is not a case where the evidence given by the applicant was rejected by the Tribunal.  The Tribunal accepted the factual account advanced by the applicant albeit reaching conclusions which the applicant questioned.  The following account is taken from the Tribunal’s reasons.

8                     The applicant belongs to the Sinhalese ethnic group.  He is a Roman Catholic by religion.  He and his family had been longstanding members of the United National Party (“UNP”) which ruled Sri Lanka from 1977 to 1994 when the general elections were won by the opposing People’s Alliance Coalition (“PA”) of which the Sri Lanka Freedom Party (“SLFP”) is the most important component.  He lived in the Gampaha electoral district centred around Negombo to the immediate north of Colombo.  Since 1994 that area has been represented by a Mr Fernandopulle a member of the PA party and deputy minister in the current government.

9                     In 1989, that is to say while the UNP was in power, an incident occurred in which two armed men broke into the applicant’s house seeking to kill his father-in-law who was at the time a prominent member of the UNP in the area.  Three persons were killed in the house.  It was claimed that the men employed were agents of Mr Fernandopulle.

10                  In 1990 the applicant became a director of the United Airport Taxi Service Society which operated taxis at Colombo airport.  The board of that society was at that time controlled by the UNP and most of the taxi drivers working for the organisation were UNP members.

11                  Taxi licences became an issue in the 1994 elections when the UNP lost office.  The new government had campaigned on an issue of issuing new taxi licences and ultimately 500 new licences were issued to supporters and members of the PA.  This led to violence in the Gampaha district between supporters of the UNP and PA.  The events surrounding that violence are referred to by the Tribunal (and indeed in other written evidence it would seem) as the “Taxi War”.  That was a time of violent clashes.  Thugs apparently supported by Mr Fernandopulle sought to intimidate the taxi board and UNP driver supporters into submission.  Incidents involved while reported to the police were not investigated by them.  An incident of particular concern occurred in August 1996 at which the applicant was present although he escaped without injury.  There was also an incident in September 1996 when a member of UNP was on trial, charged with murder in respect of the August 1996 incident notwithstanding that he was the one that reported it to the police, during which the applicant was ambushed outside the courthouse as he left.

12                  As already mentioned the applicant’s story was accepted by the Tribunal.  The Tribunal accepted also that the persons who had sought to harm the applicant were associated with Mr Fernandopulle and that police in the area were intimidated by the behaviour of the thugs associated with him.  It found that the applicant had departed Sri Lanka in fear for his safety.  The question stated by the Tribunal was whether the criminal behaviour he feared was because of his political views. 

13                  The Tribunal’s noted a submission that had been made by Mr Karp who appeared for the applicant in the Tribunal.  In that submission Mr Karp pointed out that the spoils of political victory go to the victor.  He pointed out that politics and thuggery were intrinsically linked where politicians such as Mr Fernandopulle had the ability to dispense patronage which brought with it power to him.

14                  The Tribunal concluded that merely because a powerful politician with government connections used power which results in persecution, it did not follow that the persecution was for reasons of political opinion.  The Tribunal found, no doubt correctly, that what was involved was the action of criminals associated with Mr Fernandopulle.  However it found also that neither the thugs nor even Mr Fernandopulle were in the slightest bit interested in the political opinions of the applicant rather the various incidents which gave rise to the applicant’s fear of persecution arose because the thugs and Mr Fernandopulle wanted control of the taxi franchise for themselves.  The Tribunal’s reasons are perhaps best encompassed in the following extract:

“In so far as the applicants’ fears are based on the conduct of Mr Fernandopulle’s ‘thugs’ in the ‘taxi war’, I am not persuaded that conduct was engaged in by reason of the applicants’ political opinions.  It is true that it will amount to persecution if the taxi drivers were targeted because they were UNP members.  But in this case the subject of the struggle was a lucrative business which had previously been controlled by interests associated with the UNP.  Political opinion had little to do with it.  The conduct was engaged in by reason of a desire to control the taxi franchise;  the political connection that the taxi franchise had with the UNP was the type of ‘bare casual connection’ that French J spoke of in relation to the Iranian Shipping Line in Jahazi v MIEA (1995) 61 FCR 293 at 299.  As the February 1995 Inform report cited earlier says:  it was a case of ‘PA MP’s using police and vigilante power in their electorates to further their own interests’ (my emphasis).

It may be argued that the armed attacks made at the church on 31 August at which the applicant husband was present and again following the court hearing on 20 September 1996 were made on members of the UNP as such and not merely against UNP members who happened to be directors or drivers of the United Airport Taxi Service.  But it is difficult to see what connection the assaults had with the political opinions of the victims.  It was in retaliation for earlier shootings of government supporters prior to the church service and of one of Mr Fernandopulle’s thugs during the gun fight that took place in front of the church and, no doubt, in retaliation for the attempt to have some of the ‘thugs’ arrested.  It can hardly be argued that each group was persecuting the other for reasons of political opinion.  It is not clear for what reason the armed men from the neighbouring village visited the applicants’ house that night and no doubt the applicants did not wait to find out.  Nor it is certain why they are still looking for him in Gampaha.  It cannot be assumed that it is for reasons of political opinion rather than for the economic gain sought in the ‘taxi war’ or revenge in the personal enmity that goes back to 1989 when the UNP was in power and Mr Fernandopulle in opposition.  I must therefore conclude that, although the parties may well have a well-founded fear of harm, should they return to the Gampaha District of Sri Lanka, they do not face persecution by reason of their political opinion.”

15                  Having found the applicant not to be in fear of persecution by reason of political opinion the Tribunal proceeded to consider the issue of relocation.  It stated the issue to be whether the applicant would have the protection of the Sri Lankan state in the event of relocation.  It in no way framed the issue as including the question whether relocation could reasonably be undertaken.  Strangely it commented:

“If it were relevant, I cannot be satisfied that it would not be possible for them to relocate elsewhere in Sri Lanka, most notably in Colombo.”

16                  The Tribunal undoubtedly concluded that the applicant could relocate elsewhere in Sri Lanka, notably in the Colombo district where in the past the applicant had found refuge for some three weeks.  The Tribunal refused to accept a submission that Mr Fernandopulle, being a minister in the Sri Lankan Government and an old opponent, could find and pursue the applicant anywhere in Sri Lanka.  It made no finding concerning the reasonableness of relocation.

The Applicant’s Submissions

17                  It was submitted that:

1.         The Tribunal failed to apply the correct legal test in concluding that the applicant’s well-founded fear of persecution was not for political reasons.  The correct test, it was submitted, was whether in the light of all the evidence applying common sense to the facts of the case, there was a causal connection between the applicant’s political opinion, which may be imputed from his actions or associations and the harm which the applicant fears, applying a common law test of causation.  So it was submitted that where politics and criminality were intrinsically connected, it would be wrong to quarantine in the circumstances acts of criminality from political persecution.

2.                  The Tribunal failed to consider whether the actions of UNP members in failing to have political thugs arrested could have imputed to those UNP members a political opinion being one opposed to Mr Fernandopulle’s alleged gangsterism.

3.                  The Tribunal failed to ask itself whether the particular revenge sought by the thugs attached to Mr Fernandopulle was referrable to a particular Convention reason and, in this respect, whether it was related to the applicant’s position with the UNP or the earlier attempt to kill his father-in-law in 1989.  Indeed it is said the Tribunal did not reach a conclusion as to why the 1989 attack occurred and thus erred in its decision.

4.                  The Tribunal should have considered whether the well-founded fear of persecution arose by virtue of membership of a social group.

5.                  The Tribunal applied the wrong test in relation to internal relocation and failed to take account of what practical realities may have faced the applicant in such relocation.  This submission was tied to a suggestion that the Tribunal had failed to address an issue of whether Mr Fernandopulle or his bodyguards would be motivated to seek the harm of the applicant were he to move to Colombo or, for that matter, elsewhere in Sri Lanka and, if so, whether the Sri Lankan Police would be willing or indeed able as a matter of practicality to protect him.

Submission One

18                  In support of the first submission the applicant’s solicitor referred to a judgment of Branson J in Okere v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 678 at 683-4.  In that judgment her Honour said in reply to an argument that the Tribunal in that case had found the persecution complained of to have arisen because of what the applicant had done, said:

“ ... I do not consider that the protection of the Convention is intended to be denied to all persons who have a well-founded fear of persecution for reason of what they had done as individuals. ... I find nothing in the ordinary meaning of Art 1A(2), considered in the light of the context, object and purpose of the Refugees Convention, which suggests against the question of whether an individual has a well-founded fear of persecution for reason of his or her race or religion being answered by ‘applying common sense to the facts of each case’ (cf March v E & MH Stramare Pty Ltd (1991) 171 CLR 506).  I appreciate that the March v Stramere test is a common law test of causation, but having regard to the principles of interpretation of treaties referred to above, it reflects, in my view, an appropriate approach to the construction of this aspect of Art 1A(2) of the Refugees Convention.  It is, in my view, only to put the same test in different words to invite the identification of the true reason for the persecution which is feared.”

19                  It would seem clear enough that the Tribunal in the present case did not directly apply any common law test of causation such as that suggested by her Honour.

20                  For my part I have some concern in suggesting that a common law test of causation would be applied in every case in determining whether a well-founded fear of persecution is motivated by some Convention reason.  It seems to me to introduce into the article in the Convention a test which is not explicitly there.

21                  The common law test of causation, although it may be merely one appropriate test to be applied in particular circumstances, is the so-called “but for” test.  It is no doubt correct to say that, since the persecution was largely directed at persons who were taxi drivers and also members of the UNP, the persecution would not have taken place if those persecuted had not been members of the UNP.  But does it follow from that inevitably as a matter of law, not as a matter of fact, that persecution must be found to be motivated by political views?  The answer seems to me to be “No”.  It is not so much a matter of political view as membership of a party.  Those two things are not necessarily synonymous.

22                  The submission comes dangerously close to asking the Court to reject a factual conclusion which was open to the Tribunal to the effect that those persecuting the applicant were wholly lacking in interest in the applicant’s political views.  Given the finding of fact which the Tribunal had made, it is difficult to challenge the Tribunal’s decision in the way the applicant seeks to.

23                  There is no doubt that the Tribunal accepted that politics and criminality were connected.  There is no doubt also that the Tribunal accepted that what happened to the applicant could have been related to political opinion.  However, the Tribunal found as a fact that it was not.  That was a finding for it and not for the Court.

Submission Two

24                  This submissions falls into the same trap.  It seeks to suggest that the Tribunal could have considered the applicant to have been persecuted because of his opposition to Mr Fernandopulle’s gangsterism, contrasting the present case with Voitenko v Minister for Immigration and Multicultural Affairs [1999] FCA 428.  However the submission must face up to the problem that the Tribunal has found as a matter of fact that the persecution against the applicant was not related to political opinion.  While that finding might seem to many strange in the context in which it is made, it is a finding which was open to the Tribunal.  It is not a matter which this Court may alter.  I need hardly mention that a finding which is unreasonable would not give this Court jurisdiction to set aside the Tribunal’s decision having regard to the decision of the High Court in Abebe v the Commonwealth of Australia [1999] HCA 14.

Submission Three

25                  So far as I understood this submission, it really went so far as saying the Tribunal had not set out its reasons in respect of the incident in 1989 or even considered the circumstances in which the 1989 attack occurred.  It seems to me that the applicant is seeking to agitate factual matters rather than legal matters.  It was for the Tribunal to decide whether the fear of persecution was because of the political views of the applicant.  The Tribunal decided it was not, even if such a conclusion was unreasonable.

Submission Four

26                  As has already been intimated at the outset of the proceedings before the Tribunal the applicant, legally represented, conceded a case that the applicant had a well-founded fear of persecution by reason of his membership of a social group.  In my view no error of law has been committed by the Tribunal in accepting, as it did, a concession which the applicant himself made.

Submission Five

27                  As I have already noted, the Minister concedes that the Tribunal stated the wrong test on relocation.  That however would not permit the applicant to succeed in the present case if the issue is immaterial, because he did not satisfy the test of being a refugee.  If the applicant is not a refugee within the Convention a fortiori questions of relocation are irrelevant.

28                  I should say that I do not accept the submission of counsel for the Minister that the Tribunal, while mistaking the test, did consider each matter relevant to the reasonableness of relocation.  Quite frankly, the situation is one where the application of the wrong test of relocation was capable of inducing error.  Even if the Tribunal did consider any matters relevant to relocation, one could not be sure that the Tribunal might have reached a different conclusion if it had applied the right test.  Accordingly, had the matter of relocation been material, I would have allowed the application.  However, it is not. 

29                  The Tribunal’s reasons depend ultimately upon its factual findings and in the result the application should be dismissed with costs.

Associate:

Dated:              6 August 1999