FEDERAL COURT OF AUSTRALIA

Applicant VFAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1018

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

APPLICANT VFAH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 464 OF 2004

MERKEL J

6 AUGUST 2004

MELBOURNE

THE COURT ORDERS THAT the appeal 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 appellant has appealed against a decision of the Federal Magistrate’s Court by which her application for the review of a decision of the Refugee Review Tribunal (“the Tribunal”) was dismissed.

2                     The appellant, her husband and their two children are Sri Lankan citizens who applied for protection visas on the basis that they have a well-founded fear of persecution by reason of their political opinion, race or ethnicity, and religion if returned to Sri Lanka. Before the Tribunal the appellant claimed to have a long history of involvement in the United National Party (“UNP”) and stated that, as a result, she and her family suffered threats and harassment from which the police had been unable or unwilling to protect them. The appellant also claimed that she and her family had suffered persecution because they are Burghers and Catholic.

3                     In order to grant a protection visa the Tribunal must be satisfied that an applicant is a refugee as defined in Art1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”). Under that definition a refugee is a 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.”

4                     The Tribunal affirmed the decision of the Minister’s delegate to refuse protection visas to the appellant and her family. The Tribunal appeared to accept the appellant’s claims about the harm caused by certain unidentified persons and suffered by the appellant and her family as a result of the appellant’s involvement in the UNP. However, the Tribunal did not accept that effective or adequate state protection in respect of that harm was not available to the appellant and her family in Sri Lanka. The Tribunal emphasised that it was insufficient for an applicant to demonstrate that the Sri Lankan authorities were not able to guarantee his or her safety. On the basis of the appellant’s evidence and country information the Tribunal concluded that the police and authorities do not condone inter-party political violence and that the police, judicial and related services operate at a reasonable level of efficiency. As a result it concluded that adequate or effective state protection was and is available to the appellant and her family in relation to politically motivated violence. Accordingly, the Tribunal concluded that the appellant did not have a well-founded fear of persecution by reason of her political opinion. The Tribunal also concluded that the appellant and her family did not have a well-founded fear of persecution on the basis of their religion or ethnicity. It concluded that the appellant had not suffered sufficiently serious harm in respect of her employment to constitute persecution and that her husband was not persecuted in relation to his business for reasons of his ethnicity or for any other Convention reason.

5                     Before the Federal Magistrate’s Court the appellant argued, inter alia, that the Tribunal had erred by failing to apply the “real chance” test. The Magistrate’s Court rejected this argument and held that the Tribunal had correctly determined the matter by asking whether effective protection was available to the appellant and concluding that, as it was, she did not have a well-founded fear of persecution.

6                     Before this Court the appellant contended that the Tribunal fell into jurisdictional error in relation to the manner in which it addressed the issue of State protection.  She contended that the Tribunal did not address her central concern, namely “that the police have become so accepting of a level of political violence by rival party supporters… that they will not pursue offenders without positive identification”, and that as a result effective protection is not available.  The appellant says that in this regard the Tribunal misunderstood the claim advanced by her.  She also claimed the Tribunal wrongly equated the making of complaints to the police with effective police protection.  Finally, she contended that the Tribunal’s finding that adequate or effective state protection is available was so unreasonable that no reasonable person could have reached it.

7                     In relation to her employment the appellant claimed that the Tribunal’s finding that the employment history of the appellant and her husband did not demonstrate persecution for a Convention reason was flawed. She claimed that too much weight was given to the fact that the appellant had been employed from 1990 until the time when she left Sri Lanka.

8                     The appellant submitted that as a result of jurisdictional error the Tribunal’s decision does not constitute a privative clause decision and is able to be reviewed.

9                     The appellant has failed to establish jurisdictional error in respect of any of the above matters. The Tribunal considered that the Sri Lankan police had, and by inference would, “take seriously” complaints made by the applicant about political violence. The Tribunal concluded that, having considered the material before it, there is a reasonable level of efficiency of the police, judicial and related act services in Sri Lanka in relation to complaints of the kind the appellant had made.  The Tribunal emphasised that the Convention did not require a “guarantee” of protection from Sri Lankan authorities. Further, the Tribunal took into account whether or not complaints had been made by the appellant to the Sri Lankan authorities, and the response of the authorities to the complaints, as matters relevant to the question of whether or not adequate state protection exists. There is nothing in the Tribunal’s reasons to suggest that it treated any particular matter as determinative, in itself, of the question of state protection. Rather, it took the appellants’ claims and the relevant country information into account, as it was entitled to do, in reaching its conclusions on the merits. The weight the Tribunal placed on the matters relevant to the question of state protection was a matter for the Tribunal.

10                  When making its decision the Tribunal had before it country information indicating that the Sri Lankan government and police had instituted initiatives in an attempt to address political violence, particularly at election time. The Tribunal also had before it the appellant’s own evidence of having complained to the police and was entitled to infer from this evidence that the appellant considered that police protection was available to the her. Even if unreasonableness were a ground of review I am unable to conclude that the Tribunal’s conclusions as to the adequacy of state protection were so unreasonable that no reasonable person could have reached them.

11                  Likewise, the Tribunal’s finding that neither the appellant or her husband had suffered persecution for a Convention reason in relation to their employment was based on a consideration of the material before it. The Tribunal was entitled to give as much weight as it saw fit to the appellant’s evidence that she had been employed in Colombo from 1990 until when she left Sri Lanka. The appellant’s counsel was unable to point to an incorrect legal principle applied by the Tribunal or any wrong question it asked in reaching its conclusions in respect of the matters the appellant alleges constituted jurisdictional error.

12                  In the course of the hearing the appellant also argued that the Tribunal erred by treating the adequacy of state protection in Sri Lanka as determinative of, rather than merely relevant to, her claim.  The Tribunal identified the question of state protection as the “main issue to be determined” at the outset of its reasons. It appeared to accept the account given by the appellant of her history of political involvement and the harm she and her family had suffered at the hands of supporters of the People’s Alliance party by reason of her involvement with the UNP.  The Tribunal then turned to consider what it had identified as the main issue. Having considered country information as well as the appellant’s own account of her complaints to the police the Tribunal concluded that:

“…there is a reasonable level of efficiency of the police, judicial and related services in Sri Lanka …

And:

“…adequate or effective state protection in relation to political violence has been and is available to the applicant wife and the applicant husband from the Sri Lankan authorities, and that it will continue to be available for the reasonably foreseeable future. Accordingly, I find that the applicant wife and the applicant husband do not have a well-founded fear of being persecuted by PA supporters for reasons of their political support for the UNP.”

13                  In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 (“S152/2003”) at [21] Gleeson CJ, Hayne and Hayden JJ, after citing the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, stated

“…the willingness and ability of the state to  discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well-founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person such as the respondent in this case is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home state.”

14                  At [29] their Honours stated:

“The Tribunal’s finding that it was not satisfied that the Ukrainian government was unable to protect the first respondent, and its finding that the first respondent was not a victim of persecution, must be understood in the light of the terms of Art1A(2), the evidence that was before the Tribunal, and the nature of the case the first respondent sought to make. Once the Tribunal came to the conclusion that the contention that the Ukrainian authorities instigated or encouraged the harm suffered by the first respondent must be rejected, and that the attacks on him or his property were random and unco‑ordinated, then its finding about the government’s willingness and ability to protect the first respondent must be understood as a finding that the information did not justify a conclusion that the government would not or could not provide citizens in the position of the first respondent with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for the first respondent to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality.”

15                  It is clear from the Tribunal’s reasons, and in particular from the findings extracted above at [12], that it regarded the adequacy of state protection as relevant to whether the appellant’s fear of political persecution was well-founded and whether the harm feared amounted to persecution.  That approach appears to be in accord with the majority judgment in S152/2003.

16                  In any event, having concluded that the state protection available to the appellant is efficient and adequate, the Tribunal was also entitled, according to the passages from S152/2003 cited above, to conclude that the appellant was not able to justify her unwillingness to return to Sri Lanka.  Thus, even if the appellant was able to demonstrate that despite the protection of the authorities she nonetheless faced a “real chance” of persecution she could not, in the light of the Tribunal’s finding as to the adequacy of state protection and the majority view in S152/2003, meet the further criterion of a justified (that is, by reason of having a well-founded fear of persecution for a Convention reason) unwillingness to return to Sri Lanka.

17                  The decision in S152/2003 may not have conclusively resolved questions relating to the application of the Convention in cases, such as the present, of persecution feared by non-state actors. In particular, the reasons of McHugh J raise the difficult question arising in the situation where state authorities, although providing a generally effective and adequate system of protection, are unable to adequately protect a particular person or persons from a particular type of harm suffered for a Convention reason (see in particular at [77]-[78] and [83]). However, it is unnecessary for me to address that question in the present matter because the Tribunal concluded, as a matter of fact, not only that the Sri Lankan police provide effective and adequate protection generally but that such protection “in relation to political violence has been and is available to the applicant wife and the applicant husband” [Emphasis added]. In summary, it followed from the Tribunal’s findings on state protection that the RRT was satisfied that the appellant’s claims did not fall within Art 1A(2) of the Convention.  That is so even if the minority view favoured by McHugh J in S152/2003 were to be adopted.

18                  Accordingly, no jurisdictional error has been demonstrated and the appeal should be dismissed with costs.

Associate:

Dated:              6 August 2004