FEDERAL COURT OF AUSTRALIA Rodrigo v Minister for Immigration & Multicultural Affairs [2001] FCA 1027 MIGRATION – protection visa – review of decision of Refugee Review Tribunal refusing visa – whether Tribunal misapplied the Convention test for a refugee – whether Tribunal failed to ask whether the applicant had a well-founded fear of persecution for a Convention reason Migration Act 1958, s 476(1) Migration Regulations 1994, Schedule 2, clause 866.221 Islam v Minister for Immigration and Multicultural Affairs (2000) 171 ALR 267 referred Hossen v Minister for Immigration and Multicultural Affairs [2000] FCA 363 cited Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73 followed Haque v Minister for Immigration and Multicultural Affairs [1999] FCA 1582 followed Mehmood v Minister for Immigration and Multicultural Affairs [2000] FCA 1799 referred Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied DUDLEY STEPHEN RODRIGO v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 71 of 2001 KENNY J 1 AUGUST 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 71 OF 2001 BETWEEN: DUDLEY STEPHEN RODRIGO Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: KENNY J DATE OF ORDER: 1 AUGUST 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 71 OF 2001 BETWEEN: DUDLEY STEPHEN RODRIGO Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: KENNY J DATE: 1 AUGUST 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT introduction 1 This is an application under s 476(1) of the Migration Act 1958 ("the Act") for review by this court of a decision of the Refugee Review Tribunal ("the Tribunal") made on 11 December 2000, affirming a decision of the respondent, by his delegate, not to grant the applicant a protection visa. 2 The applicant, Dudley Stephen Rodrigo, was born on 9 August 1946. He is a citizen of the Republic of Sri Lanka. Mr Rodrigo arrived in Australia on 23 April 1999. At the time of his arrival, he held a Sri Lankan passport, issued in Colombo on 30 September 1998, and an Australian visitor's visa. He applied for a protection visa on 31 May 1999. On 27 August 1999, a delegate of the respondent refused his application. On 20 September 1999, Mr Rodrigo applied to the Tribunal for review of that decision. The Tribunal held a hearing on 21 November 2000 and, on 28 November 2000, the applicant provided a further submission to the Tribunal. On 5 January 2001, he was notified of the Tribunal's decision to affirm the delegate's decision. Subsequently, the applicant made a review application to this court. legislative framework 3 Section 36 of the Act provides: (1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 4 Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas. Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Protection obligations arise in relation to a person who falls within the definition of "refugee" in the Convention as amended by the Protocol (collectively, "the Convention"). A refugee is defined in Article 1A(2) of the Convention 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, is unwilling to avail himself of the protection of that country … . applicant's protection visa application 5 The decision under review in this proceeding is the Tribunal's decision that it is not satisfied that Mr Rodrigo has a well-founded fear of being persecuted in Sri Lanka by reason of his political opinion. The Tribunal rejected an alternative claim that Mr Rodrigo had a well-founded fear of persecution by reason of his ethnicity. Mr Rodrigo did not challenge this part of the Tribunal's decision. 6 The applicant was born on the estate of the former UNP President Senanayake. His grandmother and the husband of her second marriage, who was a Buddhist Sinhalese, adopted him. By the time he left Sri Lanka, the applicant had worked for much of his life as, first, an estate assistant superintendent and, then, as an estate superintendent. The applicant claimed to have had a long and strong association with the United National Party ("the UNP"). He claimed that since 1983 he had suffered harassment as a result of his support for that party, and for allowing Tamils to live in his house in Dehiwela and to stay in his bungalow on the estate where he was working. He also claimed to have suffered further harassment in 1986, when he was questioned by police about the presence of LTTE workers on the estate, and was subsequently detained. (LTTE is a reference to the political group known as the Liberation Tigers of Tamil Ealam.) He later worked on other estates. He said that, in the late 1980s, members of the Janatha Vimukthi Peramuna ("JVP") had threatened him, on one occasion with death. He also suffered harassment before and after the election of 1994, on account of his support for the UNP. He claimed that, as late as 1998, during the municipal elections, supporters of the Sri Lanka Freedom Party had threatened him, accusing him of harbouring Tamils. In consequence, he claimed to have resigned his job and to have gone to Colombo. He became involved in UNP politics in Colombo and actively campaigned for a number of candidates. He said that, as a result of threats made against him and his fears that he would be the target of revenge attacks by People's Alliance party supporters, he decided to leave Sri Lanka and to seek refuge in Australia. 7 Following the Tribunal hearing, the applicant provided a written submission in which he stated that a rival of the candidate to whom he had given his support would hire a criminal to kill him if he were to return to Sri Lanka. He also claimed that he was still being investigated in Sri Lanka for links with the LTTE by the Anti-Terrorist Intelligence Service. reasons for the tribunal's decision 8 Under the heading "Claims and Evidence", the Tribunal recorded that: The Applicant was asked to describe the support he gave to the UNP. It was put to him that the UNP continued to have wide support in Sri Lanka and was the chief opposition party. There were no laws against belonging to it and it was possible to vote for a UNP candidate in elections. He claimed that he had been heavily involved in a municipal election campaign in Colombo prior to coming to Australia. He had campaigned from house to house and helped at the polling centre. Karu Jayasuriya had won that election. He said there were threatening calls and letters made to him during that time. He was asked whether he had taken part in any counter-threats as there was reliable evidence that both major parties indulged in threatening and violent actions during election campaigns. He claimed that he had never taken part in any violence. 9 Under the heading "Findings and Reasons", the Tribunal observed that: [T]here is election-related violence in Sri Lanka and that certainly the two major parties participate in it. … That is, it is not the case where one political party is at the mercy of the other and that members of one are persecuted by the other, government-winning party. Given that some members of both major parties are responsible for violent and threatening acts and that neither can be said to be the victim of the other, the Tribunal is not satisfied that a case can be made out for a member of the UNP, such as the Applicant, being at risk of persecution simply for reasons of being a UNP member. There are thousands of members and supporters of the UNP in Sri Lanka. 10 The Tribunal rejected the possibility that the applicant "would be framed on false charges". The Tribunal went on to say: [I]t is not possible to make a simple reading of black/white, good/bad in terms of political parties in Sri Lanka. There are well-documented reports of thuggery by the former UNP government. There are some international commentators who believe the PA government has done a rather better job at governing, although it has some way to go before being a model government. However, there is a functioning election system and a functioning government which also permits a complaints mechanism. It is not a country where there are no law or judicial process. According to Sri Lankan law and practice the Applicant has a right to be able to express his political opinion. The Tribunal is satisfied that he is able to do that within the context of the Sri Lankan political system without facing persecution. It is satisfied that the mere act of political expression will not result in persecution of the Applicant. International political rights do not mean that the Applicant, or others in Sri Lanka, can engage in political violence with impunity. However, the Applicant was insistent that he had undertaken no threatening or violent action against others. There is therefore no reason why people of the opposing political party would wish to harm him. The Applicant has spent most of his life working on estates. He has not been engaged in political campaigns and if he was very active in Kesbewa in 1998, as he has claimed, it was a somewhat isolated affair. He did not live in that electorate. He had until recently been working elsewhere. He had no long history of effective political work in that area. The Tribunal is not satisfied that, if his evidence of no wrong-doing on his part is accepted, there was or is any reason for a vendetta against him by the rival candidate. 11 The Tribunal noted that, by reason of his presence in Australia, the applicant had not been in Sri Lanka at the time of its most recent elections and, therefore, had "no recent political history which can be held against him". It noted that "there seems no grounds on which he would be of continuing negative interest to an opposing political party". As to the applicant's post-hearing submission, the Tribunal said: [E]ven if the Tribunal reluctantly accepts this later information, it does not alter the above assessment, that he has not been a long-term supporter for the Kebawata UNP candidate and that he has been out of the country for the last elections so diminishing even more his political profile. 12 The Tribunal rejected any claim based upon a well-founded fear of persecution from the JVP, or on account of any "suspicion of links with the LTTE". Accordingly, the Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention for reasons of political opinion. grounds for review 13 At the hearing of the application, the applicant abandoned his challenge to the Tribunal's decision that he had a well-founded fear of persecution for a Convention reason based on his ethnicity. The applicant contended, however, that the Tribunal's decision regarding his political opinion was infected by errors of law of the kind described in s 476(1)(e) of the Act. The applicant contended that: The premise upon which the Tribunal proceeds at critical points in its decision is … that the fact that both major political parties are at fault in the perpetration of political violence negates the existence of a Convention nexus in the applicant's case as a UNP member [at] risk of persecution. The applicant claimed that, in focussing upon this matter, the Tribunal was distracted from applying the correct test for determining whether or not it was satisfied that he was a refugee within the meaning of the Convention and the Act. 14 The applicant also contended that the Tribunal fell into error by introducing "the notion of participation of the applicant in political violence or threatening acts as a relevant factor so that he must be said to be of a negative interest to an opposing political party for his fear to be Convention based". In so doing, the applicant submitted that the Tribunal "imposed a standard which raised the threshold for the establishment of such fear and limited the likelihood of such fear to those political activists who had participated in violence". The applicant contented that, for this reason, the Tribunal had not asked itself the correct question as to whether, in all the circumstances, he had a well-founded fear of persecution for a Convention reason. 15 The applicant raised a number of other subsidiary matters in the course of argument. I deal with these below. did the tribunal err in law? 16 In support of its case, the applicant relied on the decisions of Carr J in Islam v Minister for Immigration and Multicultural Affairs (2000) 171 ALR 267 and in Hossen v Minister for Immigration and Multicultural Affairs [2000] FCA 363. In Islam, Carr J held that the Tribunal had erred by misapprehending the meaning of "persecution" for the purpose of the Convention and, in consequence, had not asked itself the right question. The error arose from the Tribunal's determination that, although the applicant in that case had been the target of violence because of his political activities, nonetheless these attacks did not amount to "persecution" for the purpose of the Convention because the applicant's political party also engaged in violence against opponent parties. His Honour's approach appears at [14] of his reasons for judgment where his Honour said: The facts found by the tribunal … include a finding that the applicant could be at risk of future harm if he returned to Bangladesh and took part again in politics. The tribunal appears to have accepted that such harm was serious enough to constitute persecution if it were inflicted for a Convention reason. Its finding that such harm occurs not because supporters of the BNP are persecuted for their political opinion but because of the general level of violence in Bangladesh affecting all parties, reveals, in my view, a legal misunderstanding on the tribunal's part of the meaning of the expression '... for reasons of … political opinion …' in the Convention. In Hossen, his Honour adopted the reasoning in Islam: see [2000] FCA 363 at [13]. 17 Counsel for Mr Rodrigo submitted that the Tribunal's reasons in his case manifest the same error as in Islam, since in Mr Rodrigo's case the Tribunal also observed that as "some members of both political parties are responsible for violent and threatening acts and that neither can be said to be victim of the other" the applicant cannot be seen to be "at risk of persecution simply for reasons of being a UNP member". This shows, so the applicant says, that the Tribunal misapprehended the requirements of the Convention. 18 The claim of error is not, however, made out. If the Tribunal's reasons are read as a whole, it is plain enough that it did not make the alleged error. The Tribunal accepted that Mr Rodrigo had been a long term UNP supporter. Whilst it accepted that there was election-related violence in which both major political parties (including the UNP) participated, it found that there was "nothing to suggest that merely belonging to or supporting the UNP [was] a cause for persecution". It was open to the Tribunal so to conclude. The fact that political parties engage in violence from time to time does not mean that there is persecution within the meaning of the Convention. This is "because the violence [may lack] the selective or discriminatory quality which is inherent in the notion of persecution, and because it [may lack] the requisite "official" quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities": see Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73 at [10] per Hely J, and Haque v Minister for Immigration and Multicultural Affairs [1999] FCA 1582 at [7]-[9] also per Hely J. 19 Having found that simply being a UNP supporter would not adequately ground a claim to be a refugee, the Tribunal turned to the particular situation of the applicant. In substance, it found that there was no basis for concluding that there was anything about the applicant's particular political activities that gave rise to a well-founded fear of persecution. The Tribunal did not accept that Mr Rodrigo would be "framed on false charges" as he claimed, and it found that there was "no reason why people of the opposing political party would wish to harm him". It found that, save perhaps for his involvement in Kesbewa in 1998, Mr Rodrigo had not "engaged in political campaigns". It found that Kesbewa was "a somewhat isolated affair", and his involvement there did not give rise to a relevant fear of persecution. It was in this context that the Tribunal observed that it was not satisfied that, "if his evidence of no wrong-doing on his part is accepted, there was or is any reason for a vendetta against him by the rival candidate". After noting that the applicant had not been involved in recent political activity in Sri Lanka and had not involved himself in threats or violence, the Tribunal found that there were "no grounds on which he would be of continuing negative interest to an opposing political party". Lacking a political profile, the Tribunal was not satisfied that he had a well-founded fear of persecution based on political opinion. I can detect no reviewable error in these findings of fact, which were open to the Tribunal on the material before it. 20 As already noted, counsel for Mr Rodrigo also submitted that the Tribunal fell into error in determining that, since Mr Rodrigo had not engaged in any threatening or violent action, there was "no reason why people of the opposing political party would wish to harm him". The applicant submitted that this amounted to an error of law in that the Tribunal imposed an additional or irrelevant requirement that, to be at risk of persecution, an applicant must have engaged in political violence supporting a fear of retribution or revenge. The Tribunal took into account the applicant's lack of participation in electoral violence in considering whether his particular political profile might make him a target for persecution on political grounds. The fact that the applicant, on his own evidence, had not engaged in any such political activity contributed to its conclusion that he did not have a political profile of the kind to give rise to a well-founded fear of persecution. His lack of involvement in violence was also relevant, in the Tribunal's reasons, to its rejection of his claim that he was at risk of a "vendetta against him by the rival candidate". As already noted, this was a matter specifically raised in the applicant's post-hearing submission. Again, I can detect no reviewable error in this aspect of the Tribunal's reasons. 21 For these reasons, I do not accept the applicant's submission that the Tribunal was distracted in reaching its decision by secondary tests or concepts that led it into error. additional matters 22 At the hearing, the applicant's counsel referred to a number of additional matters. First, he submitted that there was no country information before the Tribunal for it to state, as it did, that "there is a functioning election system and a functioning government which also permits a complaints mechanism. It is not a country where there are no law or judicial process". This complaint cannot be made out. In its reasons, under the heading "Claims and Evidence", the Tribunal stated that it had before it the respondent's Department's file. The decision record of the respondent's delegate, which was on the Departmental file, made specific reference to "DIMA Country Information Service data holdings", and referred to a 1998 US State Department Report. According to the respondent's delegate, the Report described "a highly developed and long-standing legal system operating in Sri Lanka". It is, moreover, apparent from the Tribunal's reasons that not only did it have access to the decision record of the respondent's delegate, it had access to a variety of other country information. There is, therefore, no basis upon which it can be said that the Tribunal had no evidence or other material to justify the relevant finding, or the decision. 23 In any event, having found that the applicant did not have a well-founded fear of persecution for a Convention reason, there was, strictly speaking, no need to consider whether the government was able to provide effective protection. The applicant's reliance on Mehmood v Minister for Immigration and Multicultural Affairs [2000] FCA 1799 and its insistence that the Tribunal was required to give greater consideration to the protection issue therefore fails. 24 The applicant's counsel also submitted that the Tribunal's statement, in its reasons, that it was "satisfied that the mere act of political expression will not result in the persecution of the Applicant" reflected a misapplication of the concept of persecution. Reading the Tribunal's reasons as a whole, however, it is apparent that it was not taking a narrow view of what constituted "acts of political expression", and that such acts extended to participation in campaign rallies, membership and support of preferred parties, and participation in the election of preferred candidates. The applicant's counsel ultimately conceded that this was so. No reviewable error is made out. 25 Finally, the applicant's counsel relied upon the following observation, at the conclusion of the Tribunal's reasons, as indicative of reviewable error. The Tribunal concluded: It is not satisfied that the Applicant has been or would in the future become a person persecuted for reasons of his ethnicity or his political opinion. The applicant contended that this observation evidenced a misunderstanding of the Convention test since the Tribunal did not refer to a "well-founded fear of persecution" as the Convention requires. In another case, this formulation of the Tribunal's state of satisfaction might well give rise to a reviewable error. In this case, however, shortly after the observation in question, the Tribunal concluded that: Having considered the evidence as a whole, [it] is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. The application of the correct test was implicit in this finding, since a person to whom Australia has protection obligations under the Convention is a person who has a well-founded fear of persecution for a Convention reason. The Tribunal had, moreover, correctly stated the applicable legal principles earlier in its reasons. Taking the Tribunal's reasons, including its findings, as a whole, the challenged observation does not expose reviewable error. In this regard, the observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (per Brennan CJ, Toohey, McHugh and Gummow JJ) and 291-292 (per Kirby J) are pertinent. 26 For the above reasons, I would dismiss the application with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 1 August 2001 Counsel for the Applicant: Mr J A Gibson Solicitor for the Applicant: Wimal & Associates Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 12 July 2001 Date of Judgment: 1 August 2001