FEDERAL COURT OF AUSTRALIA

MZ RAJ v Minister For Immigration And Multicultural And Indigenous Affairs [2004] FCA 1261

MIGRATION – appeal from Federal Magistrates Court – protection visas – claim that Sri Lankan authorities would not be able to provide effective protection to applicants against non-state agents – whether magistrate should have found that tribunal fell into jurisdictional error – whether tribunal adequately addressed whether authorities were willing to provide husband with protection – whether tribunal should have tested the protection available against “international standards”

WORDS AND PHRASES – “international standards”

Fleming’s The Law of Torts (9^th ed, 1998) at 118

MZ RAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 91 affirmed

Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 205 ALR 487 distinguished

Osman v United Kingdom (1998) 29 EHRR 245 discussed

Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 not followed

Minister for Immigration and Multicultural and Ethnic Affairs v Khawar (2002) 210 CLR 1 cited

SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [36] not followed

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 cited

Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 not followed

MZ RAJ, MZ RAK, MZ RAL AND MZ RAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 343 of 2004

HEEREY J

29 SEPTEMBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal is 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, citizens of Sri Lanka, are a husband, wife and their two children.  They arrived in Australia on a one month visitor visa on 5 February 2001.

2                     On 2 March 2001 the appellants lodged with the Department applications for protection visas.  On 6 February 2002 the applications were refused by a delegate of the Minister.  On 13 June 2003 the Refugee Review Tribunal affirmed the delegate’s decision.

3                     An application for review to the Federal Magistrates Court (Hartnett FM) was dismissed on 27 February 2004: MZ RAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 91.  The appellants now appeal.

4                     The husband was active in politics in Sri Lanka on behalf of the United National Party (UNP).  He claimed a well-founded fear of persecution at the hands of his political opponents.  Although the UNP achieved power in Sri Lanka at elections held in late 2001, the husband also claimed he faced persecution by opponents within his own party.  The husband’s claim was not that he faced persecution by authorities of the Sri Lankan state but rather that those authorities would not be able to provide him with effective protection against persecution by non-state agents.  The wife claimed a fear of persecution on the grounds of her own and her husband’s political opinion and of her race as a Tamil.  The husband is Sinhalese.

5                     On appeal to this Court counsel for the appellants submitted that the learned Magistrate should have found that the Tribunal fell into jurisdictional error in two respects.

6                     First, counsel contended that the Tribunal did not address the issue of whether the authorities were willing to provide the husband with protection.  Secondly, he said the Tribunal failed to test the protection that would be available for the husband in Sri Lanka against “international standards”.  The Tribunal’s rejection of the wife’s claim on the ground of her Tamil ethnicity was not challenged in the FMC.

The Tribunal’s decision

7                     As the Tribunal noted at the outset of its reasons, it was required by s 65(1) of the Migration Act 1958 (Cth) (the Act) to decide whether it was satisfied that the husband met the criterion for a protection visa provided by s 36(2) of the Act, that is to say whether he was a refugee within the meaning of the Refugees Conventionof 1951 as amended by the 1967 Protocol.  Article 1A(2) of the Convention defines a refugee 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 unwilling, to avail himself of the protection of that country…”

8                     In the course of a brief discussion of the High Court jurisprudence on the Convention definition the Tribunal said:

“The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.”

The correctness of this statement of the law was not challenged before the FMC or on appeal.

9                     The Tribunal recorded the husband’s evidence as follows.  He was born in 1954, had obtained a diploma in hotel management and cookery and had been the proprietor of import/export businesses.  He left Sri Lanka because he feared for his personal safety, and that he would be persecuted and killed by his political opponents.  He did not think the Sri Lankan authorities could protect him.  He had been an ardent supporter and active member of the UNP, as had his wife.  He contested a provincial council election in April 1999 in the Negombo electorate, Gampaha district, and worked openly for the party in presidential and provincial elections.  He engaged in political activities such as addressing meetings and taking part in rallies, protest marches and poster campaigns.  He had spent a couple of million rupees for political purposes.  He said that he had been the subject of major incidents of violence including the following:

(1)               In March 1997 he was travelling in his car with an MP when they were attacked with guns and assaulted.  The vehicle was damaged.  They escaped death.  The incident was reported to the police but no action was taken;

(2)               In January 1999 around 7 pm the husband and wife were travelling when a group of political opponents attacked their vehicle and followed them to the husband’s cousin’s house.  Over 100 people shouting anti-UNP slogans surrounded the house with guns and other weapons.  They fired at the vehicle and threw grenades and damaged the vehicle and others that were parked there.  They threw a grenade at the house, but it did not explode.  Several calls were made to the police but they only came a couple of hours later.  At 11 pm an MP called Gunasekera said that if they stayed on it would become more dangerous.  He asked the husband’s cousin to take him to his hotel.  The husband was shot and injured while getting into the car.  He went to the police to seek an escort but some political opponents were at the police station so he instructed the driver to take him to hospital.  The husband told MPs from neighbouring areas what was happening.  They said they could not do anything but contact the police.  Still the police did not attend.  At midnight the husband contacted the UNP party secretary who assured him he would send the police.  A couple of hours later the police finally arrived and called the bomb squad.  The husband and wife were escorted to their home around 3 pm [sic – presumably am];

(3)               The following day the husband went back to his cousin’s home because the UNP leader Wikramasinghe wanted to meet and discuss the incident.  The husband went from there to the police station with the UNP leader and party secretary to complain about the lack of action the previous day.  On the way to the police station their vehicle was attacked again and damaged by a crowd of 50, including a candidate from the rival PA party and his supporters;

(4)               In March 1999 the husband went to another cousin’s house.  A gang of political opponents rushed into the house pointing a gun at the husband’s mother’s chest and wanted to know where the husband was.  He ran out the back door to a neighbour’s house.  The gang then attacked his vehicle.  The husband’s mother complained to the police but no action was taken.  The husband’s mother filed a case in the courts which is still pending;

(5)               On 18 December 1999 the husband was on the stage with a well-known politician, Lucky Algama, when Algama and twelve others were killed by a bomb thrown at the stage.  The husband escaped with a few injuries.  The police did not provide enough security, only four for a crowd of 5,000;

(6)               Three days later the husband parked his vehicle on the road.  PA people came and cut the tyres and damaged the vehicle.  They had swords and guns.  An enquiry was held but no action was taken;

(7)               On 15 September 2000, while the husband was away with the children, about eight armed men in military clothes entered the house and assaulted and threatened the wife, calling her a Tamil Tiger woman and saying they had come to abduct the family.  They ransacked the house and damaged the furniture.  The matter was reported to the police but no action was taken;

(8)               On 7 October 2000, close to the elections, their home was attacked again and various things damaged.  The husband reported it to the police but no action was taken;

(9)               The husband and wife received frequent threatening phone calls.  The husband was threatened for his political activities and for supporting the wife’s cause and the Liberation Tigers of Tamil Eelam (LTTE);

(10)           Stones were thrown at their home from time to time.  The children were at risk of being kidnapped and injured and the husband had to take counter measures against this;

(11)           On 21 December 2000 the husband visited a polling booth to hand over lunch packages to polling agents for the UNP.  Returning to his car he saw political opponents attacking one of his supporters.  He was threatened and glass on his car was broken, the tyres were cut and his gold bracelet taken;

(12)           The husband received two threatening letters.  One said he would be killed in 14 days;

(13)           The husband’s brother was kidnapped on 20 October 1989.  He was removed by men in police uniforms.  The husband enquired at two police stations and of the then UNP PM and the Red Cross.  He has since heard that the brother was killed on the orders of police.  However, the Ministry of Defence has stated that it had made enquiries of the police and security forces and both had stated that the brother had not been arrested.

10                  In December 2001 the delegate wrote to the husband querying the claim that his wife was accused of involvement with the LTTE and commenting that, as the PA had by then lost power, the husband could be expected to be protected by the authorities.  The husband replied that he experienced hostility even from UNP politicians because his wife was a Tamil.  J M Perera, a senior UNP MP, had threatened his family and spread false rumours that the husband was going across to the PA.  A week later the husband’s wife was attacked and his wife persecuted.  Three weeks later, on 7 October 2000, the husband’s house was attacked and damaged. 

11                  Various news reports, articles, photographs and country information reports were before the Tribunal.  Country information was also referred to.  The most recent was a report dated 20 August 2001 from the Department of Foreign Affairs and Trade (DFAT) which stated:

“Our advice in the past has been that all citizens can avail themselves of the protection of law enforcement authorities.  However, the reliability and efficacy of authorities in responding to or investigating complaints has been mixed.

Recent (very public) failures of police to respond to complaints are partly attributable to weaknesses of enforcement mechanisms but sometimes also linked to corruption or political pressure.  There is a degree of politicisation of the police force in Sri Lanka.  For example, during elections, police have been known to be used by the ruling party for political purposes and to turn a blind eye to political violence against opposition parties.

Anecdotally at least, persons affiliated to opposition parties have occasionally found it difficult to obtain police protection or to access justice.”

The Tribunal then noted there was “considerable violence” in the lead up to the 5 December 2001 election, and that this occurred “despite intensive mobilisation of the police”.  A number of laws had been put into place in part to address election-related violence.  On 9 December the new government announced victims of election violence would be compensated regardless of their affiliations.

12                  Under the heading “Findings and Reasons” the Tribunal discussed the case.  The Tribunal accepted that the husband was a political candidate and socially well-connected and well-connected within the UNP.  It accepted that the incidents of political violence including property damage and threatened physical violence referred to in (1), (2), (3), (8) and (11) of [9] above had occurred.  It had doubts about the attack on the husband’s mother and whether the attack had anything to do with him.  It had doubts about the genuineness of the threatening letters and about the husband’s claim to have been in the presence of the Lucky Algama killing, particularly considering he claimed to have been only slightly injured although being only metres away.  The Tribunal noted that the husband had “little facility to engage in a discussion of the content [emphasis in original] of politics in Sri Lanka, despite being very familiar with the characters and the processes”.  This in the Tribunal’s view was consistent with a profile of “a one-time unsuccessful candidate for election to a middle level of government”.

13                  The Tribunal thought it was possible the husband had “embellished his experiences somewhat”, but said that was immaterial.  The Tribunal accepted that he was at risk of politically motivated harm in Sri Lanka.  If he changed his mind and decided to continue in politics he would again be at risk.  The Tribunal continued:

“However, the Tribunal does not accept that the Sri Lankan government condones or is unable to control such harm.  The country information establishes that the UNP is not a persecuted group and UNP voters are not at risk of persecution within the meaning of the Convention despite the levels of political violence and the questionable performance of some police.  Laws and policies exist and are enforceable against election-related thuggery, even if persistence may be needed to engage the interests of the police as the first port of call for the crime victim.  The applicant himself introduced a number of pieces of evidence or claims where a police investigation or a court case was an element of the action.  The applicant has clearly done little to assert his rights.”

14                  The Tribunal was not persuaded that the husband was a potential victim of the rivalries within the UNP.  The husband did not come forward with this argument until after the 2001 election and was unable to give a persuasive explanation as to why J M Perera, who was a much longer standing and much more powerful politician, would feel so threatened by the husband as to take violent measures against him.  The Tribunal was satisfied that this claim, along with the evidence in support of it, was contrived.  But even if it were true, and even with the accession of the UNP to power in the 2001 elections, the Tribunal could not be satisfied that the husband “was at risk of harm that would be condoned or uncontrollable by the Sri Lankan authorities”.  It did not accept that the husband faced “a real chance of political persecution within the Convention meaning”.

Magistrate’s decision

15                  The learned Magistrate recorded (at [18]) that the essential argument before her was that the Tribunal did not consider the central factual question as to whether effective protection was or was not available to the husband.  It had been submitted that the finding that the state did not condone the actions of a non-state agent and was able to control them was inadequate because it says nothing about whether the state was willing to control those actions.  It had been argued that the Tribunal failed properly to address that question. 

16                  The learned Magistrate said (at [22] et seq) that, read fairly and as a whole, the reasons of the Tribunal did indicate that it considered whether protection was available to the appellants from the Sri Lankan police with a view to determining whether or not the appellants’ fear of harm by political opponents or rivals was well founded.  The test was identified and applied by the Tribunal and explicit formulation was not necessary.  There was material before the Tribunal both as to the effectiveness of the Sri Lankan authorities and the protection of the appellants and ultimately the treatment of this material was a matter for the Tribunal and not for the FMC.

Willingness to provide protection

17                  I agree with the learned Magistrate that the Tribunal adequately addressed the question of the willingness, as distinct from the ability, of the Sri Lankan authorities to provide adequate protection.  The Tribunal twice recorded its lack of satisfaction that the authorities would (i) condone or (ii) be unable to prevent harm to the husband.  Condonation necessarily involves an awareness of another’s misconduct and a conscious decision not to inhibit or punish it.  An express finding that the authorities would not condone any persecution of the husband by political opponents is quite inconsistent with the possibility that the authorities (in a state where his own party was now in power) might be aware of the persecution, able to prevent it, and yet (for some reason not suggested by the husband) not willing to do so. 

International standards

18                  On the appeal, although apparently not before the FMC, counsel argued that the Tribunal should have considered the effectiveness of the husband’s claims of inadequacy of protection according to “international standards”.  He referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 205 ALR 487 and the later decision of Mansfield J in Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773.

19                  As already noted, the claim the husband put before the Tribunal was not that he feared persecution by the Sri Lankan state or its agents.  Nor did he claim that the state would be complicit in persecution: cf Minister for Immigration and Multicultural and Ethnic Affairs v Khawar (2002) 210 CLR 1, S152/2003 at [23].  Rather the claim was that the Sri Lankan authorities were not willing and able to provide effective protection against persecution on the Convention ground of political opinion.

20                  Again I agree with the learned Magistrate that, read as a whole, the Tribunal’s reasons indicate that it addressed the issue of effective protection adequately.  It stated the applicable law correctly.  It recited the husband’s claims in detail, including his complaints as to inadequate police responses.  In addition to the DFAT report mentioned above, the Tribunal quoted from four other DFAT reports dealing with political violence in Sri Lanka and police response to it and a US State Department report on the same subject.

21                  The Tribunal did not accept that the Sri Lankan Government “condones or is unable to control such harm”, i.e. harm arising from political violence.  Inability to control harm seems to me essentially the same concept as persecution that is “uncontrollable by the authorities of the country of the refugee’s nationality”: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233, S152/2003 at [19].  Since nobody suggests that any country can exercise a degree of control that guarantees its citizens protection against all harm (S152/2003 at [26]) the Tribunal would not be understood by a reasonable reader as applying such a standard.  In context, particularly as the Tribunal had referred to recent incidents of political violence in Sri Lanka, the notion of control conveyed to the reader necessarily involves not literal absolute control but an evaluation of what is reasonably practicable.  The somewhat compressed nature of the language used by the Tribunal does not indicate that it misunderstood or misapplied the correct test.

22                  But did the Tribunal fall into jurisdictional error by failing to consider the protection likely to be afforded the husband by the Sri Lankan state against “international standards”?

23                  In S152/2003 the applicant, a citizen of Ukraine, had been subjected on several occasions to random and uncoordinated attacks because of his proselytising activities as a Jehovah’s Witness.  The Tribunal rejected his claim that the government of Ukraine actively encouraged persecution of Jehovah’s Witnesses.  His application for review was rejected by Wilcox J.  However, the Full Court allowed his appeal on the ground that there was no specific consideration by the Tribunal’s “ability, in a practical sense, to provide protection”.  The High Court upheld the Minister’s appeal.

24                  The majority (Gleeson CJ, Hayne and Heydon JJ) pointed out (at [14]) that the applicant did not assert that the Ukranian judicial system or police force

“ … lacked the power to deal effectively with unlawful violence, if they wanted to do so.  The allegation was not one of absence of power, or even one of mere absence of will.  It was one of positive encouragement of certain forms of unlawful violence.”

25                  The majority later said:

“[25]  The first respondent is outside his country of nationality owing to a fear resulting from a violent response of some Ukrainian citizens to his religious proselytising.  The tribunal’s conclusion that the violence was random and uncoordinated was not merely an assertion.  It was a finding based on the evidence, and it was directly relevant to the case the first respondent was seeking to make, which was that the violence was orchestrated and state-sponsored. The first respondent did not set out to demonstrate that his country was out of control. On the contrary, he was claiming that the government was in control, and was using its power and influence to harm people like him.  The new case, raised for the first time in the Full Court, has to be related to the terms of Art 1A(2). What kind of inability to protect a person such as the first respondent from harm of the kind he has suffered would justify a conclusion that he is a victim of persecution and that it is owing to a well-founded fear of persecution that, being outside his country, he is unwilling to avail himself of his country’s protection?

[26]    No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property.  Some of them may occur for reasons of racial or religious intolerance.  The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people.  Their response was unlawful.  The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.  None of the country information before the tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.

[27]    In fact, there was no evidence before the tribunal that the first respondent sought the protection of the Ukrainian authorities, either before he left the country or after he arrived in Australia.  According to the account of events he gave to the tribunal, he made no formal complaint to the police, and when the police interviewed him after the first attack, he made no statement because he could not identify his attackers.  The tribunal considered the response of the police on that occasion to be appropriate. It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system.  That was not the case that the first respondent was seeking to make.  The country information available to the tribunal extended beyond the case that was put by the first respondent. Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom.

[28]    The first respondent sought to explain and justify his unwillingness to seek the protection of the Ukrainian authorities, either at home or abroad, on the basis that they were the instigators, directly or indirectly, of the attacks on him.  That case was rejected by the tribunal.  The Full Court found no fault with that part of the tribunal’s decision.  The only other basis upon which the first respondent’s unwillingness to seek the protection of the Ukrainian government could be justified, and treated as satisfying that element of Art 1A(2), would be that Ukraine did not provide its citizens with the level of state protection required by international standards.  It is not necessary in this case to consider what those standards might require or how they would be ascertained.  There was no evidence before the tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards.  The question of Ukraine’s ability to protect the first respondent, in the context of the requirements of Art 1A(2), was not overlooked by the tribunal.  Because of the way in which the first respondent put his claim, it was not a matter that received, or required, lengthy discussion in the tribunal’s reasons.  If the Full Court contemplated that the tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent’s safety to the extent that he need have no fear of further harm, then it was in error.  A person living inside or outside his or her country of nationality may have a well-founded fear of harm.  The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection.  For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state.

[29]    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 Art 1A(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.”

26                  The ratio decidendi of S152/2003 does not include the proposition that, in considering a claimed fear of persecution by non-state agents where the issue of effective protection arises, there will be jurisdictional error unless the Tribunal identifies, and specifies the content of, “international standards” of protection and matches the law enforcement machinery of the state in question against those standards.  Plainly the Tribunal in S152/2003 did not do that yet its decision was found to be free from jurisdictional error.  Moreover, as the majority said (at [28]), it was not necessary in that case to consider what those standards might require or how they would be ascertained.  There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards.  In other words, their Honours were saying that the applicant had not, as part of his case, put forward some international standards of state protection with which Ukraine failed to comply.  But this is not to say that failure by a Tribunal in a non-state agent case to consider international standards of protection necessarily involves jurisdictional error, whether or not that issue is raised by a claimant.

27                  The practical content of the international standards which could be applied by decision-makers engaged their Honours in the course of argument in S152/2003. Mr Basten QC, senior counsel for the Minister, had submitted that there is an international norm by reference to which the capacity of a state to protect its citizens can be judged.  Hayne J observed (transcript p 13):

“That simply poses then a great number of subsequent questions, Mr Basten, if that is your submission.  What is this norm?  What is its content?  Where does it derive from?  How is it engaged in the Migration Act?”

And later the following exchange took place (transcript p 22):

GLEESON CJ:  Where do we find the international norms governing the level of protection that a State is obliged to provide its citizens?  Where is the document in which we will find them?

KIRBY J:  Is it in the Handbook [on Procedures and Criteria for Determining Refugee Status] at all?

MR BASTEN:  I am not sure that it is, your Honour.

HAYNE J:  Does it exist?

MR BASTEN:  Does it exist?  It exists to the extent that the right to life and the right to physical integrity is incorporated within the universal declaration, it exists in the forms ---

HAYNE J:  We are talking about what measures have to be taken to protect.

MR BASTEN:  That is right.

HAYNE J:  Now, where do we find them?

MR BASTEN:  I thought, I took Osman’s Case – maybe it sets too high a standard because it is an European Convention case, but it adopts a discussion of the right to life and, in the context of that, looks at the positive obligation imposed on the State to protect individuals who may be at risk within its borders.  Now that may set too high a standard.

GLEESON CJ:  Mr Basten, we know that there are some parts of the world that are safer than others and there are some parts of Australia that are safer than others and I presume there are some parts of Canberra that are safer than others.

MR BASTEN:  I do not know about that, your Honour.

GLEESON CJ:  But where do we find what is to guide a member of the Refugee Review Tribunal in making a judgment about whether the State of the Ukraine complies with what, to use your earlier expression, is expected of it in terms of international law?

MR BASTEN:  Your Honour, I do not have an easy answer to that question from saying there are questions of fact and degree.  One adopts one of two approaches, I suppose.  One either sets the standard which is thought to be appropriate by reference to one’s own experience, or one says it does not ultimately matter.  The Germans say that you need a State or a State-like body and when they talk about a State-like organisation they appear to have in mind something which does engage the obligations of its citizenry by providing complementary protection to them of the kind that one would expect in a State as we envisage it.

28                  The only source of guidance suggested by Mr Basten, and then somewhat diffidently, is Osman v The United Kingdom (1998) 29 EHRR 245, (1998) 8 Reports of Judgments and Decisions of the European Court of Human Rights 3124.  Paul Paget-Lewis shot and killed Ali Osman and wounded his son Ahmet Osman.  Mulkiye Osman, the widow of Ali, and Ahmet sued the Metropolitan Police Commissioner alleging negligence by the police in failing to apprehend or interview Paget-Lewis even though they were aware of harassment and criminal damage to the Osmans’ property by him.  An application to strike out the statement of claim was upheld by the English Court of Appeal.  Following earlier authorities, that court held that the public interest required that police have an immunity from any suit based on negligence in the investigation and suppression of crime.  Leave to appeal to the House of Lords was refused.  The Osmans applied to the European Commission of Human Rights.  They claimed that there had been a failure to protect the lives of Ali and Ahmet and to prevent the harassment of their family and that they had no access to a court or an effective remedy in respect of that failure.  They relied on a number of Articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms, namely:

Art 2    right to life to be protected by law;

Art 6    right to a hearing by a tribunal in the determination of a person’s civil rights and obligations;

Art 8    right to respect for private and family life;

Art 13  right to an effective remedy notwithstanding violation has been committed by persons acting in an official capacity.

29                  The European Court of Human Rights, on reference from the Commission, found there had been no violation of Arts 2 and 8 but upheld the claims under Art 6 and, as a consequence, the claims under Art 13.

30                  In discussing the Art 2 claims, the Court held (at [116]) that it was sufficient for the Osmans to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they had, or ought to have had, knowledge.  But in the circumstances of the case the Court considered (at [121]) that there was not a decisive stage in the sequence of the events leading up to the shooting when the police knew, or ought to have known, that the lives of the Osmans were at real and immediate risk from Paget-Lewis.  However the Osmans succeeded under Art 8 because in the Court’s view the blanket immunity allowed no distinction between the degrees of negligence or the harm suffered or any consideration of the justice of a particular case (at [150]-[153]).

31                  The standard in Osman was one applied in retrospect to a particular series of events and the circumstances in which they occurred.  It would seem to be of little assistance for decision-makers faced with claims by asylum seekers that they will not have effective protection against persecution by non-state agents in their country of nationality.  This is an exercise in forecasting, as opposed to an analysis of past events.  It will be concerned with general conditions of law enforcement in a particular country and how they are likely to apply to the particular claimant.  It will necessarily assume that protection cannot be absolute.  To take an analogy from the law of negligence, the test of whether a defendant has breached a duty of care owed to a plaintiff involves comparing the conduct of the defendant with that of a hypothetical reasonable person in the defendant’s position.  The reasonable person, in the words of Fleming’s The Law of Torts (9^th ed, 1998, at 118), “was invented as a model of the standard to which all are required to conform”.  But that does not mean that all persons engaging in the kind of conduct in question always in fact conform to that standard.

32                  In any event, to the extent that a standard can be extracted from Osman, it is one that originates in the First World nations of the European Union.  It would be unrealistic to apply it to all parts of the world.

33                  There are about 200 countries in the world.  Each has at least one police force.  There are many with provincial and local forces as well.  There must be many thousands of police forces in the world.  Standards of honesty, competence and available resources, and benchmarks such as crime rates and ratios of police to population, would inevitably differ and, it might be expected, widely so.  Indeed, marked disparities can occur over time within the one country.  The Australian newspaper of 14 September 2004 reported a Justice Department statement that the United States violent crime rate for 2003 for victims 12 years and over per 1000 people was 22.6, as against 50 in 1993.  Does this mean that the United States achieved international standards in 2003 but not in 1993?  Perhaps the 2003 figure is still below such standards.  Who is to say?

34                  Jurisdictional error involves a decision-maker exceeding, or not exercising, a jurisdiction conferred on him or her.  The usually unstated premise of cases where jurisdictional error is found to have occurred is that the decision-maker knew, or ought to have known, the nature of his or her jurisdiction and its limits.  In the case of the Tribunal, the jurisdiction is founded in the particular claim under consideration, in the relevant provisions of the Act and the Regulations, and the general principles of administrative law (not to take into account irrelevant considerations, not to ask the wrong question etc).  All these are matters, which the Tribunal knows, or ought to know.  However the appellants’ case seeks a finding of jurisdictional error on the ground that the Tribunal failed to have regard to whether policing standards in Sri Lanka complied with international standards, the source and content of which are completely undefined and could not be defined by counsel before this Court.  There was no suggestion in the Act, or in the case law in June 2003, of any such mandate.

35                  In Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773, Mansfield J (at [52]) held that in considering whether the applicant faced a real chance of being seriously harmed by Maoists (non-state agents) in Nepal the Tribunal did not address the question of whether the police and other security forces in that country “are reasonably effective and meet international standards” and thereby fell into jurisdictional error.  It was put to me, and I accept, that his Honour treated the Tribunal’s failure to consider whether protection met international standards as a separate and free-standing ground for a finding of jurisdictional error.  For the foregoing reasons I respectfully decline to follow that decision and also the earlier decision of Selway J in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [36].

Conclusion

36                  The appeal will be dismissed with costs.

Associate:

Dated:              29 September 2004