FEDERAL COURT OF AUSTRALIA

Rupasinghe v Minister for Immigration & Multicultural Affairs [2001] FCA 958

MIGRATION – review of decision of Refugee Review Tribunal (“Tribunal”) – whether decision involved an error of law – whether the Tribunal erred in concluding that past harm experienced by the applicants did not amount to persecution – whether such an error would have affected the ultimate decision – whether there had been a change of circumstances since the past conduct had occurred – whether the Tribunal wrongly applied the “well-founded fear” test – whether the Tribunal was obliged to consider whether the applicants had access to effective state protection once it had found that the applicants did not have a well-founded fear of persecution

Migration Act 1958 (Cth) s 476(1)(e)

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343  followed

Minister for Immigration and Multicultural Affairs v “X” [2001] FCA 858  distinguished

Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898  distinguished

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379  referred to

Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263  followed

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559  considered

Puerta v Minister for Immigration and Multicultural Affairs [2001] FCA 309  followed

HIROSAN RICHARD PERERA RUPASINGHE & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 989 of 2000

STONE J

23 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.      the application be dismissed;

2.      the applicants pay the respondent’s costs.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     The applicants, who are husband and wife, are citizens of Sri Lanka who arrived in Australia on 9 March 1997. The applicants lodged their application for protection visas under the Migration Act 1958 (Cth) (“Act”) on 14 April 1997.  That application was refused by the respondent’s delegate (“Delegate”) on 13 June 1997 and the Delegate’s decision was upheld by the Refugee Review Tribunal (“Tribunal”) on 26 November 1999. The first applicant sought review of the Tribunal’s decision in this Court and, on 19 April 2000, the Court, by consent, set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 1 December 2000, a differently constituted Tribunal handed down its decision dated 15 November 2000, again affirming the Delegate’s decision not to grant protection visas to the applicants.  The applicants applied to the Court on 21 December 2000 seeking review of the second Tribunal decision under Part 8 of the Act.

criteria for grant of protection visa

2                     Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Geneva Convention Relating to the Status of Refugees, as “amended” by the 1967 New York Protocol Relating to the Status of Refugees (compendiously, “the Convention”). Article 1A(2) of the Convention provides that a refugee is any person who:

“owing to a 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, is unable or, owing to such fear, is unwilling to return to it.”

the tribunal’s decision

3                     The applicants have not sought to challenge the findings of fact made by the Tribunal in relation to the claims made by Mr Rupasinghe (“Applicant”) (Mrs Rupasinghe did not make any separate claims). The Applicant was a supporter of the United National Party (“UNP”), an opposition party in Sri Lanka and, the Tribunal found, “a low level operative who undertook practical support tasks for the UNP”.  After the People’s Alliance (“PA”) came into power in 1994, the Applicant experienced some verbal harassment because of his involvement in the UNP. The Tribunal accepted in part the Applicant’s evidence regarding an incident that took place on 14 February 1997. The Tribunal’s assessment of this incident is central to the Applicant’s allegation of legal error and I therefore set out the Tribunal’s finding in detail.

4                     The Tribunal described the Applicant’s claim in the following terms:

“The applicant claims that he was a youth leader for the UNP and on 14 February 1997 was returning home with his wife from a UNP propaganda meeting held in connection with the local government elections. He claims that his car was followed by a jeep which overtook his car and stopped forcing the applicant to also stop his car. He claims that he saw about six people get out of the jeep and rush towards his car: two of them had pistols and the others had ‘clubs and swords’.  He was told to get out of the car, which he did, and was told that unless he withdrew his support for the UNP then he would be cut up into pieces. His car was damaged by the person carrying the club. They then all drove off saying that they knew where the applicant lived and they would burn his house down if he did not stop his support for the UNP. They also told the applicant that if he went to the police then he would have to face the consequences.

5                     The Tribunal considered the Applicant’s claim in the context of his account of events prior to and after that incident. The Tribunal expressed doubts about the Applicant’s account of the episode and expressed its finding as follows:

“Nevertheless, independent information indicates that such acts of intimidation can occur and for the purposes of considering the claims made by the applicant in support of his application for recognition as a refugee, I am prepared to accept that he was stopped and threatened as he and the applicant wife drove home after attending the political meeting on 14 February 1997. The applicant claims that the encounter involved six people armed with guns, clubs and swords, him being held by the neck, having a gun held at his head, they were threatened with being shot or cut to pieces and their house being burned down, there was damage to their car and they were warned not to go to the police. Given that nothing more than some verbal harassment had occurred in the past eight years of the applicant’s involvement with the UNP, what the applicant claims happened on 14 February 1997 seems to have been particularly strong action on the part of his political opponents … I consider that the totality of the evidence suggests that the applicant has exaggerated what has happened in the past but I am prepared to accept that their car was stopped, that they were threatened by people armed with weapons and that the applicants were frightened by what had occurred.”

6                     The Tribunal did not accept that the Applicant had a well-founded fear of persecution because of his political opinion and activities. The reasons for its finding were:

·               the Applicant’s involvement with the UNP has been limited and is not of a kind that would sustain the adverse interest of political opponents for over three years to the present day;

·               the Applicant’s political involvement is unlikely to increase on his return to Sri Lanka;

·               the sort of harassment to which the Applicant was subjected is “common in Sri Lankan political life” and is not of a kind which might properly be seen as persecution;

·               there is not a real chance that the Applicant would be subjected to persecution on his return to Sri Lanka having regard to the extent of political violence in Sri Lanka (considered in the light of its total population);

·               although the police response to political violence in Sri Lanka is uneven, there is a measure of police action which further limits the chance that the Applicant would face serious harm; and

·               there was no evidence before the Tribunal that the Applicant’s grandfather, who is a long-time supporter of the UNP with a higher profile than the Applicant and a former High Commissioner in Canada, has ever faced persecution because of his political activities.

APPLICATION FOR AN ORDER OF REVIEW

7                     The applicants seek review of the Tribunal’s decision on the ground that the decision involved an error of law being an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the Tribunal (s 476(1)(e) of the Act).

Whether the Tribunal wrongly applied the test of persecution

8                     The first matter raised by the applicants is that the Tribunal failed to recognise that single acts may constitute persecution, that in order to constitute persecution acts of violence need not necessarily form a continuing pattern and that conduct can be persecutory even where an applicant is not singled out for persecution. The submission relates to the following two passages in the Tribunal’s reasoning where, under the heading “Findings and Reasons”, the Tribunal made the following comments about the 14 February 1997 incident:

“I am…not satisfied that what occurred was more than an isolated incident of localised election-related violence. I do not accept that the evidence about his involvement indicates that what occurred was because of his particular significance in the UNP campaign or that he was a particular target for sustained action by people associated with the PA.”

“…the verbal harassment the applicant described is common in Sri Lankan political life and while the incident on 14 February 1997 was very frightening, I am not satisfied that what the applicant experienced in the past is harm, of a kind which might properly be seen as persecution. What happened appears to be common in Sri Lankan political life – threats, harassment and intimidation – but in that context I do not consider that the harm the applicant experienced exhibits the serious punishment or penalty or significant disadvantage or detriment necessary for conduct to constitute persecution within the meaning of the Refugees Convention.”

[emphasis added]

9                     At the hearing there was some dispute between the parties as to the exact extent of the Tribunal’s finding with respect to the incident that occurred on 14 February 1997. The actual finding of the Tribunal is quoted in [5] above. Mr Gibson, counsel for the applicants, said that the only part of the Applicant’s claim that the Tribunal rejected is the element of physical interference; that is the Applicant being held by the neck, the Applicant having a gun held to his head and the car being damaged. It was submitted that the Tribunal therefore accepted that there were six aggressors armed with guns, clubs and swords.  Mr Fairfield, counsel for the respondent, rejected this interpretation and submitted that the Tribunal’s finding must be taken at face value given that the other aspects of the Applicant’s claim were dismissed by the Tribunal as exaggeration. The passages quoted in [4], [5] and [8] above support the respondent’s contention and, in my opinion, the Tribunal was not prepared to put its finding any higher than as expressed in the final sentence of the quote in [5] above. This interpretation is supported by the Tribunal’s summary of its findings later in its reasons:

“The applicant was a supporter of the UNP who undertook a range of practical support tasks and who tried to encourage other young people to support the UNP and I have found that his political activity led him to experience some verbal harassment and to him and his wife being stopped on the way home in February 1997, physically intimidated and threatened and told to stop his activities.”

10                  I agree with the respondent’s submission that, in the first passage quoted in [8] above, the Tribunal is making a finding as to the nature of the incident that occurred; it is not, at that stage, applying the Convention definition of “refugee” to the facts as found.The section of the second passage that I have emphasised is arguably capable of two meanings:

1.                  It might mean, as the respondent contends, that the Tribunal was of the view that the conduct was not sufficiently serious to constitute persecution within the meaning of the Convention.

2.                  The words ‘in that context’ might imply that the Tribunal is measuring the degree of harm in the context of the extent to which such harm occurs in Sri Lanka generally. That is, the Tribunal might be saying that the conduct does not constitute persecution because, in circumstances where threats, harassment and intimidation are common in Sri Lanka, the conduct complained of is not sufficiently serious.

11                  The applicants contend that the Tribunal’s words have the second meaning and submit that the Tribunal has misapplied the Convention test by finding that the commonality of threats, harassment and intimidation in Sri Lanka deprives them of the quality of persecution. As noted above, the Tribunal had already found that the 14 February 1997 incident was limited to the applicants being threatened by people armed with weapons. In this context, a fair reading of the second passage quoted in [8] above is that the Tribunal felt that the harm involved was not sufficiently serious to constitute persecution, being interpretation (1) in [10] above. In any event, I have considered whether, in reaching this conclusion, the Tribunal has erred in any of the ways suggested by the applicants.

12                  The respondent submitted that it was not necessary to decide whether the Tribunal misinterpreted the meaning of ‘persecution’ in relation to the 14 February 1997 incident because, even if the Tribunal was in error in characterising that incident as an isolated incident not having the quality of persecution (which the respondent denied), it was not a reviewable error. The respondent pointed out that s 476(1)(e) applies where “the decision involved an error of law” and submitted that, for the reasons set out in [14] below, the Tribunal did not need to decide whether the experiences of the applicants in Sri Lanka amounted to persecution.

13                  The legal proposition concerning the operation of s 476(1)(e) is undoubtedly correct. In Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 (“Thiyagarajah”) at [17], Gleeson CJ, McHugh, Gummow and Hayne JJ in their joint judgment stated that:

“The error of law which will attract review must be more than one found in a step taken at some stage in the decision-making process. The involvement of which s 476(1)(e) speaks postulates an error which finds a necessary consequence in the ultimate decision to affirm the refusal of the grant of a protection visa.”

It is, however, less clear that the principle applies in this case in the manner suggested by the respondent. 

14                  According to the respondent, the Tribunal’s error (if error it was) did not “find a necessary consequence” in the Tribunal’s ultimate decision because the decision was based on a finding that there was no real chance of the Applicant being subjected to such treatment in the future. The respondent likened the Tribunal’s analysis to that considered by a recent Full Court in Minister for Immigration and Multicultural Affairs v “X” [2001] FCA 858. The respondent in that case was a 16 year old Muslim citizen of Kenya who claimed to fear persecution as a result of event which occurred in or about Mombasa in August 1997. The Court (Black CJ, Lee and Merkel JJ) in a joint judgment made the following comment:

“The essential finding by the Tribunal was that what occurred … was an isolated incident that would have no sequelae connected with race, religion or political opinion for citizens of Kenya resident in or about Mombasa. Once the Tribunal reached that conclusion, any error in the Tribunal’s understanding of the meaning of persecution in circumstances of past civil disorder lost its significance. The reason for that is that the Tribunal had concluded that there was no real chance that the respondent would suffer such harm in the future as the civil violence had ceased. In that context, the Tribunal’s conclusion that there was “not a real chance that [the respondent] will be persecuted in the reasonably foreseeable future” should not be treated as a conclusion that was based upon or affected by its erroneous understanding of what may constitute religious persecution.”

[emphasis added]

15                  Counsel for the respondent also referred to the recent decision of Hely J in Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898. His Honour regarded a possible legal error in a refusal to characterise certain events in 1991 as ‘persecution’ as immaterial. His Honour held that the reason the applicant’s claim failed was because the Tribunal in that case found that circumstances had changed in the meantime.  The relevant change in circumstances was an improvement in the political climate in Albania.

16                  In my opinion, these cases have no relevance to the Applicant’s claims. The Tribunal did not find that there was any relevant change in the political climate of Sri Lanka or that there was any other relevant change of circumstance. The respondent points only to the passage of time and the Tribunal’s finding that, given more than 3 years have elapsed since the incident in 1997, the Applicant’s political profile is not such as to sustain interest in him over that period. However, the Tribunal did not find that the Applicant would cease to be involved with the UNP (to the same extent that he had been involved in the past) on returning to Sri Lanka. In this context, I do not accept that the mere passing of time amounts to a finding of change of circumstances such as to make irrelevant the question of whether the Tribunal erred in its characterisation of the Applicant’s treatment prior to leaving Sri Lanka.

17                  In the opening paragraphs of its reasons, the Tribunal correctly directed itself as to what constitutes persecution, referring to the comments of Mason CJ and McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 and 429-30 respectively. I accept that this is not sufficient to show that there was no error in the Tribunal’s reasoning on this point. I agree, with respect, with the comment of Merkel J (with whom Heerey and Sundberg JJ agreed) in Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263 at [53]:

“The [Tribunal] cannot immunise itself from review by correctly stating the tests to be applied in order to determine whether the causal nexus requirements of Art 1(2A) are satisfied. It must also correctly apply the tests.”

18                  In my opinion, however, the Tribunal correctly applied the relevant test in deciding that the Applicant had not suffered persecution. It did so, not on the basis that the Applicant was not “singled out”, or that the incident of 14 February 1997 was an “isolated incident” but because, the experiences of the applicants, as accepted by the Tribunal, were not sufficiently serious to constitute persecution.

Real chance test

19                  The second matter raised by the applicants relates to the following passage in the Tribunal’s reasons:

“I am not satisfied that there is a real chance that [the Applicant] would face more serious harm because of his political opinion and activities if he were to return to Sri Lanka. In reaching this conclusion, I have had regard to the extent of political violence in Sri Lanka: the recent election campaign is reported to have led to the deaths of ten people …. While I recognise that these attacks are very serious and that many serious assaults could have been perpetrated as well, Sri Lanka has a population of some nineteen million and a high level of participation in the political process and of political debate. The chance that the applicant could be caught up in such violence seems to me to be to be [sic] low.”

20                  This passage occurs in the Tribunal’s reasons after the Tribunal had already found that the conduct to which the Applicant had been exposed in the past did not constitute persecution. The Tribunal was therefore considering whether, in the future, the Applicant might face more serious mistreatment which would constitute persecution. The Tribunal decided that the chance of such mistreatment occurring in the future was “low”.

21                  The applicants contend that the Tribunal erred in finding that the size of the population, the number of instances of violence and the high level of political participation affected the chance of the Applicant being persecuted. In the context of the Applicant’s claims before the Tribunal, this contention must fail. The Applicant claimed that he was being persecuted because of his political participation and the Tribunal found that the Applicant’s involvement in politics was ‘limited’. In the absence of anything to suggest that the Applicant was at greater risk of persecution than others in the same situation, his actual chance of being persecuted must bear some relation to the proportion of people in a similar situation to him who are persecuted. Thus the Tribunal was entitled to conclude that his chances of being persecuted was ‘low’.

22                  The applicants are correct in their submission that this will not necessarily mean that the Applicant does not have a well-founded fear of persecution. However, the Tribunal had also stated that “[t]aking all the evidence before me into account, I have concluded that there is not more than a remote chance that the applicant would face harm of a kind which might constitute persecution because of his political opinion and activities”. The passage quoted at [19] above appears as one of the reasons for this statement.

23                  Although the majority of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”) at 572, warned against using terms such as “real chance” in substitution for the Convention term, “well-founded”, the Tribunal is entitled to conclude that a fear of persecution is not well-founded because the chance of persecution occurring is remote. To do so is not to conclude that a fear is not well-founded because the chance of persecution is less than 50% or some other figure. In other words, Guo is not authority for the proposition that the use of phrases such as ‘real chance’ and ‘not remote’ in considering whether a fear is well-founded necessarily involves error; Puerta v Minister for Immigration and Multicultural Affairs [2001] FCA 309 at [11].

Capacity of authorities to protect from persecution

24                  The third matter raised by the applicants is that the Tribunal erred in that it did not properly consider or make a finding on the question of whether the authorities were able to protect the Applicant from persecution. The relevant passage in the Tribunal’s reasoning is as follows:

“…I understand the capacity and willingness of the police to address incidents of political violence is often questioned but I note that political leaders have campaigned against political violence…and the police have said that they will act to contain it and have been criticised as well as commended for their actions. The police response to politically motivated violence may be uneven but I consider that because there is a measure of police action, this further limits the chance that the applicant would face serious harm because of his activities in support of the UNP.”

25                  The applicants submit that the above passage fails to address the question of whether the Applicant would have effective state protection. In my opinion, the submission is based on a misunderstanding of the significance of this passage in the context of the Tribunal’s reasoning. It needs to be remembered that the Tribunal, at this point, has decided that the applicants did not suffer persecution in the past and is in the process of deciding whether the applicants are at risk of persecution should they return. As such the comment is to the effect that, since there is a police presence and there is (albeit uneven) police action, the risk that the Applicant would face serious harm is further reduced. This is one of the reasons the Tribunal gives for concluding that there is no real risk of persecution. The Tribunal is not considering whether the applicants, being faced with the threat of serious harm, can avail themselves of the state’s protection.

26                  Given that there is no error of law in the Tribunal’s conclusions that the applicants did not suffer persecution in the past and that the chance that they will do so in the future is remote, the issue of effective state protection is not material to the Tribunal’s decision. In the words used in Thiyagarajah (see [13] above), it finds no necessary consequence in the Tribunal’s ultimate decision.

27                  The application must be dismissed with costs.

Associate:

Dated:              23 July 2001