FEDERAL COURT OF AUSTRALIA

Applicants A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 727

MIGRATION – application for judicial review of decision of RRT – protection visa – whether applicant had well-founded fear of persecution – effective State protection.

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 applied

Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 [2004] HCA 18 applied

SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 cited

APPLICANTS A169 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, IAN LINCOLN, MEMBER REFUGEE REVIEW TRIBUNAL and PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

S 737 of 2003

LANDER J

27 MAY 2004

ADELAIDE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Application dismissed.

2.         The applicants to pay the first respondent’s costs.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     On 25 March 2003 the applicants applied in the High Court of Australia for the issue of the constitutional writs in relation to a decision of the Refugee Review Tribunal (RRT) made on 31 January 2003.  The application was made within the time prescribed by the High Court Rules.

2                     On 11 June 2003 Hayne J remitted the matter to this Court for further hearing.

3                     On 6 April 2004 the applicants filed an amended application for review in which they claimed that the RRT had breached the rules of natural justice; that an error of law occurred in connection with the making of the decision; that the decision involved the making of a jurisdictional error in that the RRT failed to take into account a relevant consideration; and that the decision was otherwise contrary to law.

4                     The claims were particularised and it will be necessary later to refer to one of those particulars.

5                     The applicants have not sought to adduce any evidence in support of their application.  They rely upon the decision of the RRT itself, which they say evidences the jurisdictional error.

6                     There are four applicants, all members of the one family.  They are husband and wife, and two children, a son and a daughter.  They are all nationals of Sri Lanka.

7                     The applicants arrived in Australia on 18 December 1995.  On 30 June 1997 the applicants lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural Affairs.  It is not absolutely clear whether the husband lodged the application for himself and for the benefit of his family, or whether all members of the family are applicants.  To avoid confusion in these reasons, I shall refer to all four applicants on this application for review as applicants for protection visas and for review before the RRT.

8                     On 14 July 1997 a delegate of the Minister refused the application.  The applicants sought a review of that decision in the RRT.  On 30 April 1999 the RRT published its reasons affirming the decision not to grant a protection visa.

9                     On 7 February 2000 the Minister advised the applicants that he had decided not to exercise his powers under s 48B of the Migration Act 1958 (Cth) (the Act) to allow a further application for a protection visa or under s 417 to substitute a decision more favourable to the applicants for the decision made by the RRT.  At the same time, the applicants were granted bridging visas until 16 May 2001.

10                  Notwithstanding the Minister’s decision in April 2001, the applicants lodged a further application for protection (Class XA) visas with the Department of Immigration and Multicultural Affairs.  On 14 August 2001 a delegate of the Minister refused to grant protection visas.  On 13 September 2001 the applicants applied for a review of that decision.  The RRT was satisfied that the applicants’ original 1997 protection visa application was invalid, in that it lacked credible information relating to the reasons why the husband applicant claimed to be a refugee.  The RRT, therefore, determined that the applicants were not prevented by s 48A of the Act from lodging a valid application for a protection visa.  The RRT held that it had power to conduct a review on the merits of the application which had been refused by a delegate of the Minister on 14 August 2001.

11                  The husband applicant said that he obtained employment at the Cement Corporation as a result of a friendship which he had developed with a Mr Skandakumar at the Tamil Union Cricket Club.  The husband applicant was a keen cricketer.  In July 1983 the husband applicant and a relative, who was also a police officer, assisted Mr Skandakumar in repelling attacks on him by Tamils.  To do so, the husband applicant stayed at Mr Skandakumar’s house for about a month.

12                  In 1985 the husband applicant applied, to his then employer, to have time off to attend a cricket tour to Malaysia.  That application was refused and the secretary of the Tamil Union Cricket Club assisted him to obtain a new position as personnel officer with a privately owned customs warehouse, Trico Maritime Pty Ltd.

13                  In October 1995, whilst the husband applicant was overseas on another cricket tour, LTTE members set fire to the Kollonawa Oil Refinery in Sri Lanka.  Two persons, with whom the husband applicant associated, were arrested for the attack.  The husband applicant was warned by another associate of those two persons not to reveal anything about those persons and that, if he did, he and his family would be killed.

14                  A month later, police officers searched the husband applicant’s parents’ house, where he was then staying, and told the husband applicant’s father that they had information that the husband applicant had helped those two persons clear goods, illegally, through Sri Lankan customs.  The husband applicant’s case was that he had never suspected those two persons, and a third person, had been involved in illegal activity, or that they were members of the LTTE.  He said that if he had known that they were LTTE members he would not have trusted or associated with them.

15                  The husband applicant’s claims governed that of his wife, son and daughter.  Their claims for refugee status depended upon him establishing that he was entitled to a protection visa.

16                  The RRT found that the husband applicant was a national of Sri Lanka.  It found him to be frank and credible in his oral evidence.  It accepted that the husband applicant fears that, on return to Sri Lanka, he would be at risk from two separate sources; the LTTE, because it might be thought that he knew of the involvement of his former friends who were said to be the activists in the oil refinery attack in 1995; and the Sri Lankan authorities, who may still wish to investigate his previous association with those activists.

17                  The RRT considered both matters, which would give rise to the subjective fear, which it found the husband applicant had if he were to return to Sri Lanka.

18                  It dealt with the second matter first.  It found that, if the husband applicant was subject to investigation by the authorities in relation to any suggestion of him assisting LTTE members with illegal imports, such an investigation would be ‘a legitimate state measure by the Sri Lankan authorities, under laws of general application, in combating criminal activity’.

19                  It considered the possibility that the Sri Lankan authorities may impute a pro-Tamil and pro-LTTE opinion to the husband applicant whilst undertaking such an investigation.

20                  If that were to occur, the RRT found that such an investigation would be consistent with the authorities’ responsibility to combat terrorism and other illegal acts in their country.

21                  It concluded that any investigation by the authorities, for either of the two reasons advanced by the husband applicant, would not amount to persecution for a Convention reason.

22                  The RRT also turned its mind to changes in circumstances in Sri Lanka since the applicant had left.  It noted that the Sri Lankan government and the LTTE had agreed to a power-sharing arrangement at peace talks in Norway.  It concluded that that agreement would further lessen the authorities’ interests in the applicant for any reason associated with the LTTE.

23                  The RRT turned its attention to the possibility of persecution by the LTTE.  It said:

‘The applicant claims that his life and that of his family would be at risk from LTTE activists if he returned, because of their concern that he might reveal information about their activities.  The Tribunal considers that attacks of the kind feared by the applicant would, if they occurred, constitute criminal acts.  The Sri Lankan authorities would have a responsibility to respond effectively to such attacks.’

24                  It considered the Sri Lankan authorities ability to offer State protection and found that the authorities would be in a position to offer effective State protection.

25                  It also found that the agreement between the Sri Lankan government and the LTTE would be likely to lessen the LTTE’s interest in the applicant.  In those circumstances, it found that not only was he able to avail himself of effective State protection but, also, there was not a real chance that the husband applicant would be persecuted by the LTTE.

26                  It also considered the husband applicant’s circumstances if the truce between the Sri Lankan government and the LTTE were to break down.  It found, in those circumstances, that the authorities would be likely to increase their efforts to combat terrorism and that the husband applicant would still be able to avail himself of effective State protection.

27                  In the end result, the RRT found that the husband applicant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol and, therefore, not entitled to a protection visa under s 36(2) of the Act.

28                  Only one ground is raised in the particulars supporting the application for judicial review.  It is claimed, in particular 4:

‘4.        The Tribunal failed to take into account a relevant consideration, namely that if the truce and peace process broke down between the LTTE and the Sri Lankan national government, then this may lead to resumed hostilities on a wide scale between the LTTE and the Sri Lankan government forces and therefore the Applicants may be at greater risk from the LTTE activists.  The Tribunal has made a finding that if armed struggle were to recommence that the Sri Lankan authorities are likely to increase their efforts to combat terrorism and that this increased vigilance of the authorities in the situation of revived hostilities would be sufficient to meet the Applicants’ need for protection.  However, the evidence appears to be that if the truce and peace process were to break down irretrievably and if hostilities between the LTTE and the Sri Lankan national government were to be resumed full-scale, that in fact the overall security situation would be much worse and that the Applicants’ need for protection would not be met and that there was a failure by the Tribunal by the Tribunal [sic] to take this relevant consideration into account.’

29                  The applicants’ particular assumes, wrongly I think, that the RRT found that the husband applicant had a well-founded fear of persecution.  In my opinion, the RRT found that, whilst the husband applicant had a subjective fear of persecution, it was not well founded.  If I am right about that, then the issue raised by the applicants on this application does not arise.

30                  However, the RRT did consider the circumstances which would prevail, assuming that the husband applicant had a well-founded fear of persecution.  The RRT said:

‘The Tribunal acknowledges that the available information does not indicate that the truce and peace process will necessarily hold.  In these circumstances the LTTE may have an increased sense of vulnerability and hence be more likely to take some action to prevent the applicant from revealing information about them to the authorities or to punish him for doing so.  However, the Tribunal considers that if this process breaks down an arms struggle is resumed by the LTTE the Sri Lankan authorities are likely to increase their efforts to combat terrorism and finds that the increased vigilance of the authorities in this situation of revived hostilities would be sufficient to meet the applicant’s needs for protection.’

31                  In that paragraph, the RRT assumed that the peace talks would not hold and that there may be a resumption of hostilities.  The finding assumed, it seems to me, that the applicant would then have a well-founded fear of persecution.  However, in addressing that well-founded fear, the RRT has found that that well-founded fear of persecution would be met by the Sri Lankan authorities who would be able to give sufficient support to meet the applicants’ needs for protection.

32                  If the husband applicant did have a well-founded fear of persecution, he would be entitled to refugee status if he could further establish that he was unable or unwilling to avail himself of the protection of the Sri Lankan authorities.

33                  The State does not have to guarantee protection: Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 680-681.  The State is obliged to take reasonable measure to protect the lives and safety of its citizens.  No State can guarantee that its citizens will be safe from violence.

34                  Sri Lanka would be under an obligation to have in place an appropriate criminal law and the provision of a reasonably effective and impartial police force and justice system: Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 [2004] HCA 18 at [26].  Ordinarily, the effectiveness of State protection would be measured by international standards and so also would any failure to meet those international standards.

35                  There was no evidence before the RRT, or before this Court, that the effectiveness of State protection in Sri Lanka fell below that required by international standards.  Some evidence of that failure was required, because it cannot be presumed: SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [31].

36                  It follows, therefore, in my opinion, that the RRT’s decision cannot be criticised.  It approached the enquiry with the right questions in mind.  It found that, although the husband applicant would have a subjective fear of persecution if he were returned to Sri Lanka, that subjective fear was not founded.  It found that, even if the husband applicant had a well-founded fear of persecution, the Sri Lankan authorities could provide him with effective protection.

37                  For those two reasons, the husband applicant was not entitled to refugee status or a protection visa.

38                  In my opinion, because the husband applicant has not been able to demonstrate that the RRT was wrong, in respect of either or both of those findings, then the applicants’ claim for review must fail.  To succeed on this application the applicants, collectively, would have to have shown that the RRT was wrong in respect of both of those findings.

39                  The application is dismissed.

Associate:

Dated:              7 June 2004