FEDERAL COURT OF AUSTRALIA

Paramanayagam v Minister for Immigration & Multicultural Affairs [2000] FCA 1744

IMMIGRATION - protection visa – whether the Refugee Review Tribunal failed to meet the requirements of s 430(1) of the Migration Act 1958 (Cth) – whether effective protection was available to the appellants in Canada

United Nations Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967

Migration Act 1958 (Cth) ss 430(1) and 476(1)

A & Ors v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 - applied

Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933 - cited

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 - cited

PASUVATHY PARAMANAYAGAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 115 of 2000

JUDGE:          MERKEL J

DATE:            1 DECEMBER 2000

PLACE:          MELBOURNE

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 appellants have applied to the Court under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review the decision of the Refugee Review Tribunal (“the RRT”) affirming a decision of the delegate of the Minister.  The Minister decided that the appellants are not entitled to the grant of a protection visa as they are not persons to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”).

2                     The first appellant is of Tamil origin and is a citizen of both Sri Lanka and Canada.  The second appellant is the wife of the first appellant and is a citizen of Sri Lanka.  The remaining three appellants are the children of the first and second appellants.  The two elder children are citizens of Sri Lanka and the youngest child is a citizen of Canada.

3                     The first appellant fled to Canada from Sri Lanka in 1988 as he was fearful of being persecuted by the Liberation Tigers of Tamil Liberation (“the LTTE”).  He was joined in Canada by his wife and their two children some five years later.  The third child was born in Canada.  The appellants claim that they came to Australia in May 1996 to flee from LTTE threats, harassment and an assault, all of which were alleged to have occurred against the first appellant in Canada.

4                     Counsel for the appellants accepted that the success of their application to review the decision of the RRT depended upon the success of the first appellant.  Consequently, if the first appellant failed in his application to review the decision it was accepted that the other appellants must also fail.  Accordingly, I will focus upon the RRT’s decision in relation to the first appellant.

5                     It is common ground that for the first appellant to succeed the RRT had to be satisfied that he had a well-founded fear of political persecution in both Sri Lanka and Canada.

6                     The first appellant’s claim to refugee status was based primarily upon a fear of retribution from the LTTE because he had been a critic in Canada of the LTTE and its methods.  The RRT considered the material before it and concluded that, in Canada, such a fear is only likely to be well founded when the person holding the fear is in a position to, or has, broadly disseminated or broadcast criticism of the LTTE and its methods.  The RRT concluded that, as the first appellant had not criticised the LTTE other than to his friends and acquaintances, there was no real chance that any anonymous threats or insults that may have been made to him would ever be carried out.  The findings of the RRT were open to it on the material and no reviewable error on the part of the RRT has been demonstrated in respect of those findings.

7                     Evidence was also given to the RRT by the first appellant and the second appellant of an assault upon the first appellant by LTTE assailants.  However, after considering discrepancies between the evidence given by the first and second appellants and other matters concerning the assault, the RRT concluded that the first and second appellant had fabricated their account of the assault.  The RRT also concluded that, even if it were to give greater credence to the first appellant’s account of the assault, the failure to report the assault undermined the claim that the first appellant had a well founded fear of persecution if he was returned to Canada.  In particular, the RRT found that the first appellant could have obtained adequate protection in Canada if he had reported the assault to the police.  The RRT added that “[i]n the absence of an effort to seek such protection, [the first appellant] cannot be said to be a refugee”.  Counsel for the appellant submitted that the RRT erred in its approach to the issue of access to effective protection in Canada.

8                     In A & Ors v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 a Full Court considered the problems confronting a person of dual nationality where one of the countries, of which the person was a national, is a democratic country governed by the rule of law and with generally effective judicial and law enforcement institutions.  The Full Court at [34]-[43] explained why, in such cases, a person cannot be said to be at risk of persecution if he or she can access effective protection in either country of nationality.  At [42] the Full Court observed that it was necessary that the decision maker form a conclusion about the effectiveness of the relevant State protection and do so on material presented by the claimant or on material otherwise available to the decision maker.

9                     In the present case the RRT must be taken to have found that the appellants would have obtained effective protection in Canada if they sought that protection from the police.  The RRT stated that it found that the information before it did not support the appellant’s claim that he feared retribution if he reported the incidents.  In that regard, earlier in its reasons the RRT had explained why it did not accept that a person in the position of the first appellant could not access adequate police protection.

10                  The manner in which the RRT expressed its findings on the issues of access to effective protection and whether the first appellant’s fear of political persecution was well founded were the subject of criticism by counsel for the first appellant.  However, I am satisfied that the findings of the RRT were open to it on the material, it made no error of law in arriving at those findings, and it complied with s 430(1) of the Act in relation to its findings.

11                  The other main claim made by the first appellant was that he feared retribution at the hands of his former lover’s brother who was intent on avenging his sister’s suicide some twelve years earlier.  Plainly, that fear was not based on a Convention reason.  However, the first appellant claimed that the person he feared had links to the LTTE, with the consequence that if the first appellant reported the feared retribution to the authorities, the person’s links with the LTTE would result in the LTTE imputing to the first appellant a political opinion against the LTTE.  The RRT regarded that scenario as no more than “a remote possibility”.  It was open to the RRT on the material before it to arrive at that conclusion and I am satisfied that it made no error of law in doing so and that its reasons complied with s 430(1) of the Act.

12                  The extensive written submissions of counsel for the appellants criticised the RRT’s findings but, in substance, the criticism sought a review of the decision of the RRT on the merits rather than on grounds that are available on s 476(1) of the Act.

13                  Counsel for the appellants also criticised the RRT for failing to explain why it had not accepted or acted upon certain material which was contrary to its findings.  However, as explained in Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933 and in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 such a failure is not a breach of s 430(1).  In any event, the matters relied upon by counsel for the appellants to support her submission of a contravention of s 430(1) were not findings in respect of material facts in the sense of being findings on questions of fact central to the case raised by the material or matters upon which the decision, one way or the other, turns.

14                  For the above reasons the appellants have not established any of the grounds of review relied upon to challenge the decision of the RRT.  Accordingly, the application for review is to be dismissed with costs.

Associate:

Dated:              1 December 2000