FEDERAL COURT OF AUSTRALIA Shaibo v Minister for Immigration and Multicultural Affairs [2002] FCA 158 MIGRATION – where applicant was a member of Sri Lankan police force posted in Tamil area – whether desertion from police force constituted expression of political opinion – whether knowledge of political opinion on part of persecutor required Migration Act 1958 (Cth), s 36(2) Minister for Immigration & Multicultural Affairs v Shaibo (unreported, Federal Court of Australia, Lindgren J, N 979 of 1999, 10 May 2000) Canada (Attorney General) v Ward (1993) 103 DLR (4th) 1 V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355 C v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 366 Xie Guo Zhong v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Tamberlin J, 21 December 1995) Minister for Immigration & Multicultural Affairs v Y (unreported, Federal Court of Australia, Davies J, 15 May 1998) C v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 366 Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501 Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 MOHAMED ELIYAS CADER SHAIBO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1220 OF 2001 GYLES J SYDNEY 27 FEBRUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY N 1220 OF 2001 BETWEEN: MOHAMED ELIYAS CADER SHAIBO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE OF ORDER: 27 FEBRUARY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY N 1220 OF 2001 BETWEEN: MOHAMED ELIYAS CADER SHAIBO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE: 27 FEBRUARY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application to review the decision of the Refugee Review Tribunal ("the Tribunal") made on 29 June 2001 and notified on 25 July 2001 whereby the Tribunal affirmed the decision of the delegate of the respondent Minister not to grant the applicant a protection visa on the basis that the applicant did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act"). The matter is governed to date by the Act as it stood prior to the 2001 amendments. 2 When this matter came on for hearing before me on 13 December 2001 I granted leave to the applicant to further amend his Application. The applicant filed a Further Amended Application, the first ground of which was: "1. The Tribunal erred in law, being error in interpretation of the law, or in the application of the law to the facts as found. Particulars (a) The Tribunal failed to ask itself the following questions and consider the issues which arose therefrom, (i) whether the applicant's desertion from the Sri Lankan police force was motivated in part by a political opinion, to the effect that the Sri Lankan police should not rape and torture civilians, and (ii) whether any lawful punishment metered [sic] out to him would result in part from the expression of that opinion, and (iii) whether in the circumstances of the application the imposition of such a punishment would be persecutory…". 3 The applicant also relied upon two further grounds, namely, that the Tribunal did not have jurisdiction to make the decision and that the decision was not authorised by the Act, both on the basis of its failure to take into account relevant considerations, with the particulars of those grounds being the same as for the first ground. 4 The applicant is a citizen of Sri Lanka. He arrived in Australia in 1994. He applied for a protection visa in July 1997. In the meantime, he had been back to Sri Lanka on two occasions and had visited a brother in India. He has used his own passport at all times. A delegate of the respondent Minister refused to grant a protection visa on 2 November 1997. On 5 December 1997 the applicant applied to the Tribunal for review of that decision. The first Tribunal decision was given on 13 August 1999 and set aside the delegate's decision and remitted the matter, with a direction that the applicant was a person to whom Australia had protection obligations. The respondent sought review of that decision, which came before Lindgren J who delivered judgment on 10 May 2000 and made orders that the first decision of the Tribunal be set aside and that the matter to which that decision related be referred to the Tribunal for further consideration and decision in accordance with law (Minister for Immigration & Multicultural Affairs v Shaibo (unreported, Federal Court of Australia, Lindgren J, N 979 of 1999, 10 May 2000)). 5 The facts have now been rehearsed in two decisions of the Tribunal and in the decision of Lindgren J. The critical findings of the Tribunal in the decision under review were as follows: "Giving the Applicant the benefit of some doubt I am satisfied that his fear that he will be harmed if he returns to Sri Lanka is genuine. I am satisfied that, in accordance with a long held ambition, the Applicant joined the Sri Lankan police force in July 1993. He apparently expected to be posted to his own area and to be a kind of village policeman and to be able to pursue his sporting interests while serving his community. Contrary to his expectations, he was posted to a Tamil area. This area was characterised by violent conflict between the Sri Lankan army and the LTTE. The Army had recently moved out and the police were used to fill the void. I am satisfied that the Applicant was warned by a colleague that he would be killed if he remained with the police and that he took this advice seriously. I am satisfied he also objected to being associated with certain criminal activity engaged in by certain police officers and directed against the local Tamils. I am satisfied that for some combinations of these reasons the Applicant deserted his post after nine days. He has not returned to police work since. I note that the Applicant did not suffer any consequences of his desertion of his duties in the months following, nor in return visits since. I note that he has explained that he was in hiding in Colombo and his exits and entries were secured by the payment of bribes. Having heard the Applicant's evidence I am satisfied that it is not likely that the Applicant will suffer more serious consequences of his desertion in the future than he has in the past. However, giving the Applicant the benefit of some doubt I am satisfied that there is a real chance, a less than remote chance, that he may face the consequences of his desertion if he returns to Sri Lanka. I note that he claims that he will be given the choice of imprisonment for desertion or accepting an amnesty, which would involve being sent to serve again in a Tamil area. I understand that it is Mr Haigh's opinion that a Tamil speaking Muslim deserter could expect different and worse treatment than other deserters who came into the hands of the police. I note also the general country information regarding Muslims in Sri Lanka. I note that although the vast majority of Muslims are Tamil speakers they do not seem generally to be regarded as LTTE supporters or to be targets for state or police discrimination. I did not find Mr Haigh's opinion persuasive. I am not satisfied that any punishment for desertion from a police post is selectively enforced against Muslims or any other group to which the Applicant may belong. I note also that the Applicant served as policeman for only nine days and that no great effort seems to have been made to bring him to book for his desertion. I am not satisfied that there is any real chance that he would be treated any differently to any other police deserter who refused an amnesty. I am satisfied therefore that any harm suffered by the Applicant as punishment for his desertion of his post as a policeman would be for reasons of his breach of the law, and would not amount to persecution. I note that the Applicant says that the reason he would refuse the amnesty because of he fears that he would be killed or seriously injured and because he does not wish to participate in criminal activities against the Tamil population. I note that in the Federal Court his honour found that "fear of being exposes [sic] to the risk of being killed on police service is not a fear of persecution, let alone persecution on a Convention ground". I agree with his honour's finding and his reasoning. It was submitted that deserters seeking to take advantage of the amnesty are selectively sent to Tamil or dangerous areas and this could constitute persecution. It may be that this is so but I do not agree that this would amount to persecution. The Applicant deserted from such a post. It seems reasonable and appropriate that he could expect to be returned to the same or a similar post. I am not satisfied that any such posting would amount to selective or discriminatory treatment. In any event the Applicant need not accept the amnesty at all, in which case he may be subject to punishment for desertion which I am satisfied is not discriminatory." 6 The starting point of the argument for the applicant is that opposition to criminal acts by Sri Lankan police officers against Tamils may be a political opinion, relying upon a line of authority in this Court referring with approval to Canada (Attorney General) v Ward (1993) 103 DLR (4th) 1 at 38-41, including V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355 and C v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 366. So much may be granted for the purposes of argument. The next step might also be granted – that the applicant's desertion was subjectively motivated, in part, by that opinion. 7 The problem lies in the next step articulated in the argument, namely, that lawful punishment for desertion would result, in part, from the expression of that opinion. This depends upon an unarticulated premise of some ambiguity – that the desertion was an expression of political opinion. If that statement is intended to convey the meaning that desertion, of itself, is an objective expression of a political opinion, then I disagree with such an assertion. In Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 Beaumont J referred with approval to the following passage from the judgment of Tamberlin J in Xie Guo Zhong v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Tamberlin J, 21 December 1995): "A second matter raised by the applicant is that departure by a member of a State cadre would be perceived by the PRC to be an act of disloyalty and therefore punishment for such departure was persecution by reason of the applicant's political opinion. This was rejected by the Tribunal. Again, in my view it cannot be said that there was no evidence on which the Tribunal could come to this conclusion or that it was not reasonably open to the Tribunal. Mere departure, of itself, as Hathaway points out, does not entitle a person to refugee status without more. Departure in itself is a politically neutral act." In my opinion, desertion from a police post in dangerous territory in itself is politically neutral in the same way that departure from a country is politically neutral. In the abstract, it can be accounted for by a variety of personal reasons, with political opinion not high on the list. 8 If the statement is intended to convey the meaning that the desertion in this case was accompanied by conduct which could make it an objective statement of political opinion, and able to be perceived as such, counsel for the applicant has not been able to demonstrate that the applicant made such a claim at any stage of the proceedings. There is no reference to such a claim in either Tribunal decision or the decision of Lindgren J. Furthermore, counsel did not point to any material before the Tribunal which would properly raise the issue. It is not referred to in the applicant's written statement. The transcript of the interview with the first Tribunal member, which was before the second Tribunal, is inconsistent with any such claim, as the applicant explained that he was allowed to leave the police post because he lied at the checkpoint by saying that he was unwell and was going on leave. Indeed, counsel for the applicant accepted that the political opinion held by the applicant was not expressed in any way other than leaving, pointing out that it would have been dangerous for a new recruit to do otherwise. 9 If (as I think it is) the statement is intended to convey the meaning that desertion in this case was, in part, an uncommunicated subjective expression of political opinion, then the issue is relevance. In the written submission for the applicant it was contended that the fact that the Sri Lankan authorities who would punish (to use a neutral term) the applicant for his desertion did not know the reasons for the desertion is not relevant to a case based on political opinion. It was submitted that there simply has to be a nexus between the persecution feared and the reason for that persecution and that nexus may be present without a conscious "motivation" on the part of the persecutors (V v Minister for Immigration & Multicultural Affairs, Minister for Immigration & Multicultural Affairs v Y (unreported, Federal Court of Australia, Davies J, NG 80 of 1998, 15 May 1998) and C v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 366 at 372-375 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572-573). 10 It is submitted on behalf of the respondent that, as there is no finding or evidence that the Sri Lankan authorities knew of the motives for the applicant's desertion, there is no room for any unknown persecution by punishment for desertion, if that eventuated. It is also submitted that there was no finding of selective punishment for desertion – indeed, the finding is to the contrary. 11 In my opinion, the respondent's submission is correct in principle, and is supported by authority. A passage from the judgment in Canada (Attorney General) v Ward, which has proved influential in expressing a broad view favourable to applicants for protection on this issue, is as follows: "First, the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant. Second, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution." This is inconsistent with unknowing persecution in a case of this kind. The judgment of Beaumont J (agreed in by Foster J) in Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 at 158-165 on this point is not affected by the subsequent decision of the High Court (Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559) and makes clear that it is the perception of the activities of the applicant for refugee status by the persecutor which is critical. To the same effect, see Wilcox J at [14], Hill J at [33] and Whitlam J at [36] in V v Minister for Immigration & Multicultural Affairs. In Minister for Immigration & Ethnic Affairs v Y, Davies J said at p 4: "A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government …" (emphasis added) 12 Reference was made in the course of argument by counsel for the appellant to the somewhat controversial decision in Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501 as supporting the applicant's proposition, as it establishes that it is not necessary for the persecutor to have any adverse motive, in turn relying upon the decision of the High Court in Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293. Those cases did not involve the issue here, but I regard the examination of the issue of motive by Lindgren J (whose judgment was agreed in by Mathews J) at [139]-[141] as consistent with the view I have formed, as appears from the following passage (from [141]): "… it is an error of law to insist upon the presence of any particular adverse attitude, emotion or state of mind on the part of the persecutor. But clearly the motivation for the persecutory conduct must be something perceived about the particular social group." 13 It follows that the applicant has failed to establish any of the grounds of the Further Amended Application. In these circumstances, I need not consider the respondent's submission that I should take into account the 2001 amendments to the Act (in particular, s 91R) when considering whether the matter should be remitted to the Tribunal or the argument that the amended issue was not raised before the Tribunal. 14 The application must be dismissed. The applicant is to pay the costs of the respondent. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 27 February 2002 Counsel for the Applicant: L Karp Solicitor for the Respondent: G Peek, of the Australian Government Solicitor Date of Hearing: 13 December 2001 Date of Judgment: 27 February 2002