Kelly, Jean v Minister for Immigration & Multicultural Affairs [1998] FCA 1623

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1023 of 1998

BETWEEN: JEAN KELLY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE OF ORDER: 9 DECEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1023 of 1998

BETWEEN: JEAN KELLY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE: 9 DECEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HELY J: The applicant is a citizen of Northern Ireland. She was born there, and raised in a Catholic family. In 1986, when she was about 25 years of age, she met a man with whom she formed a relationship. Unbeknown to the applicant, her boyfriend was an active member of the IRA. Refugee Review Tribunal ("RRT") accepted that her boyfriend was an important functionary within that organisation. In 1987, whilst the applicant was alone in the flat in which she lived, she was abducted by masked men. The abductors came from one of the Protestant militia groups, and the reason for the abduction was related to the applicant having as her boyfriend an important functionary within the IRA. RRT accepted that the abduction was a terrifying experience for the applicant, and that "the terror of that experience has stayed with her". RRT also accepted that because of her boyfriend's status, and/or because of her Catholicism, she was harassed (but not seriously enough to amount to persecution) by police and army authorities in Northern Ireland during the period 1986-87. In October 1987 the applicant travelled to the United States. She remained there until mid-1993 when she returned to Northern Ireland for a short visit to see her sister who had been involved in a bad accident. She returned to the United States on a passport apparently issued in Dublin. About three months after her return to the United States, the applicant was deported to Dublin. She was assisted to travel from Dublin to London by persons who were part of an IRA support network. After about three months the applicant fled from London to Israel. She claimed to have done so because of an apprehension that the Protestant militia had broken into her flat. RRT said that it did not have enough evidence on which to make a finding in relation to the men who were said to have visited the applicant's flat in London causing her to flee to Israel, but it did accept that it was a subjective fear on the part of the applicant which caused her to act in the way in which she did. The applicant told the RRT that she wanted to find a country where she could "settle down" – somewhere very distant from Northern Ireland – and for this reason she chose Australia. She came to Australia on 9 February 1996 knowing that she had a six month visa. On 17 July 1998 she lodged an application for a protection visa. On 10 September 1998 RRT affirmed the decision of the Minister's delegate not to grant a protection visa. RRT accepted that the applicant had a subjective fear of persecution, derived from her abduction in 1987, which was in turn associated with her relationship with her boyfriend. Another contributing factor may have been her membership of Sinn Fein. Nonetheless it found that substantial changes in circumstances had removed the objective reasons that support this fear. Her boyfriend is now dead; she has not been a member of Sinn Fein since 1986; apart from a brief visit in 1993 she has been out of Ireland since 1987. In the intervening period there have been substantial changes in the political situation in Northern Ireland, particularly in the last eighteen months such that it can not longer be said that the authorities in Northern Ireland are unwilling or are unable to protect the applicant from the persecution which she fears. In any event, the applicant does not have to return to Northern Ireland because she is the holder of an EEC passport and as such is entitled to live and to work in any of the member states of the European Union. She could, for example, settle anywhere in the United Kingdom. In the result, RRT was not satisfied that the applicant's fear of persecution for a convention reason is well-founded. In any event, RRT found that it is reasonable for the applicant to relocate to another place away from the area where she previously experienced harm, and where any chance of future harm would be remote. The applicant has shown herself capable of living and working in a number of countries in the past, such as the United States of America, Britain, Israel and Australia. She could also avail herself of the protection of Northern Ireland against the harm that she fears.