Applicant in V 528 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1072

FEDERAL COURT OF AUSTRALIA

Applicant in V 528 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1072

APPLICANT IN V 528 OF 2000 -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 528 of 2000

RYAN J 29 AUGUST 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 528 of 2000

BETWEEN: APPLICANT IN V 528 OF 2000

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 29 AUGUST 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application, including any reserved costs. 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 528 of 2000

BETWEEN: APPLICANT IN V 528 OF 2000

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 29 AUGUST 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Background 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming the refusal of a delegate of the respondent Minister ("the Minister") to grant the applicant a protection visa. 2 The applicant is a Cambodian national now aged thirty-one who arrived in Australia on 31 October 1997. He applied for a protection visa on 16 February 1998 and, on that application being refused, applied on 26 March 1998 to the Tribunal to review that refusal. In its reasons for decision published on 16 June 2000 the Tribunal noted that the applicant had claimed to have been a member since 22 August 1992 of the royalist National United Front for a Neutral, Peaceful, Cooperative, and Independent Cambodia Party ("FUNCINPEC"). His claims of activity in that connection were summarised by the Tribunal in these terms; "He said that he assisted a government minister with office work and that he was also active in other ways such as distributing literature, preparing banners and recruiting new members. During the course of his application the applicant also stated that he was active in promoting human rights and that he observed acts of political violence. He claims that after the coup of July 1997 several enquiries were made about him. He said that he lived with friends, away from his own home, to avoid detection. He said that he was later able to depart Cambodia as a friend worked at the airport as an immigration inspector. He added that being in receipt of a student visa to study in Australia also facilitated his departure. The applicant claims that FUNCINPEC supporters continue to be victims of political violence and that some are still killed. In support of those claims he submitted three newspaper articles. He claims that Hun Sen is in complete control and that secret agents are used to repress political opposition. He added that news of political violence is suppressed and that much violence which occurs away from the main population centres is never reported." 3 The Tribunal accepted that the applicant had been a member of FUNCINPEC and had undertaken activities on behalf of a government minister and the party in general in the ways he had claimed. The Tribunal also accepted that the applicant had promoted human rights and observed some incidents of politically motivated violence. The Tribunal then made these findings of fact specifically related to the applicant; "No actual harm befell the applicant himself before or, indeed, following the coup in early July 1997. The applicant remained in Cambodia for almost a further four months. He retained his passport and was able to depart legally using that passport. The Tribunal does not accept that if the applicant had been of any interest to the authorities he would have been able to depart Cambodia legally. The Tribunal accepts that the applicant's departure might ultimately have been facilitated by being in possession of a student visa and by having a friend working as an immigration inspector at the airport. By the same token it is apparent that the applicant passed all security checks. He kept his passport and did not come to adverse official attention when making arrangements for his visa, leaving the country or at any other time. In assessing all the relevant material the Tribunal finds that the applicant was able to leave Cambodia legally because he was not of any official interest. Available information indicates that even if the applicant were to have been of official interest at the time of his departure that situation would no longer pertain. There was a violent coup in July 1997 coup [sic] and other related political violence extending into 1998. It also indicates that the violence gradually dissipated, especially following elections held in 1998. It is apparent from information cited below that FUNCINPEC members and supporters continue to operate openly and influentially as a national political force." 4 The Tribunal then reviewed a body of "country information" which traced the ebb and flow of political control of Cambodia from the overthrow by the Khmer Rouge of the Lon Nol republic in 1975 to the formation, in late 1998, of a coalition government by the Cambodian Peoples Party ("the CPP") led by Hun Sen and FUNCINPEC. 5 Part of the "country information" surveyed by the Tribunal included a report from the Australian Department of Foreign Affairs and Trade ("the DFAT") dated 15 July 1999 which included this passage; "There were a considerable number of reports of politically-motivated harassment and killing during the period surrounding the national election on 26 July 1998, and again in its aftermath when opposition protests were suppressed by the security forces. In essence, it was regarded that pre- election intimidation by CPP-aligned elements (both civilian and military) against opposition party supporters and activists at the local level was widespread. This extended to several reports of political killings of FUNCINPEC and Sam Rainsy party activists in various provinces, and some summary arrests of opposition activists. When the post-election pro-opposition demonstrations were suppressed by government security forces in September, many protesters were beaten and arrested, and at least four killed. The demonstrations subsequently ceased and CPP and FUNCINPEC finally agreed to form a new coalition government in November 1998. Since that time the political climate has returned to relative normality. By February 1999, the Royal Cambodian armed forces (RCAF) had also completed the process of reintegrating former royalist rebel forces (and also defecting Khmer Rouge soldiers) into the RCAF. Royalist commander Nhiek Bun Chhay has been amnestied and returned to a senior political position in Phnom Penh, and the military resistance has officially ended. As a consequence of these developments, COHCHR has indicated that at the present time (March 1999) it is not aware of any retaliation against returnees to Cambodia. People who were politically active at various levels during the election campaign have been able to return - both from overseas and from Phnom Penh to their villages and communes - without hindrance or harassment. This included FUNCINPEC-aligned members of the security forces. So far in 1999, COHCHR has not received any reports of harassment. It is fairly safe to assume that had such incidents occurred, they would have directly or indirectly come to the office's attention. The COHCHR did not rule out the continued existence of a "blacklist'' of persons said to be anti-government and targeted for harassment. Such a blacklist was rumoured to be in operation in 1998, containing the names of an undisclosed number of opposition figures targeted for persecution. Even if the list still existed, however, it was not in the government's interests to act against its political opponents now: the new government was seeking to maintain stability and improve its image domestically and internationally, and having won the election, the dominant party was in a position of strength and not feeling threatened. Looking to the future, it is the view of the COHCHR that FUNCINPEC members and supporters are unlikely to be targets for harassment or violence. FUNCINPEC is now part of the governing coalition and the CPP is genuinely keen to maintain cooperation with its junior partner. In addition, it is worth noting that commune-level elections are scheduled to take place, probably in the year 2000. The ministry of interior has stated that political parties will not be eligible to campaign in the elections (ie that all candidates must stand as independent individuals). It is our view, however, that it will be all but impossible to keep party politics out of any election process in Cambodia. In the event of a commune election campaign, it is very possible that the pattern of local-level harassment and violence against opposition candidates and activists which occurred during the 1998 campaign will be repeated, and possibly even intensified. In such a situation, as was the case in 1998, it would be mid-level activists rather than high-profile leaders or grassroots members who may have cause for concern. On past patterns of activity, they may be warned by authorities to desist from their political activities, and if they did not do so, the harassment may intensify, possibly into violence. I stress that this is a speculative analysis, and such harassment is not presently occurring. Again, on past indications, even such harassment would generally be unlikely to extend to non-active family members." 6 The formation in late 1998 of the CPP/FUNCINPEC coalition was also commented upon by the USA Department of State in a report published in March 2000, which concluded; "The coalition Government formed in late 1998 between the Cambodian People's Party and FUNCINPEC, the two parties that won the largest number of votes and National Assembly seats in the 1998 election, achieved renewed political stability. The coalition agreement provided for roughly equal power sharing between the parties, with Hun Sen of the CPP as Prime Minister and Prince Ranariddh of FUNCINPEC as President of the National Assembly. The coalition agreement also provided for the creation of a Senate, which was formed in March with Chea Sim of the CPP as President. The Senate's function is to review and provide advice on the laws passed by the National Assembly; the National Assembly retains final authority over whether to modify legislation based upon the Senate's recommendations. Although growing in influence, the legislature remained weak in comparison with the executive branch. The coalition Government appointed the provincial governors and their deputies, who generally are divided between the CPP and FUNCINPEC parties, as well as district officials." 7 After its review of such "country information" as it had collated, the Tribunal concluded; "Although it is apparent that there continue to be serious abuses of human rights in Cambodia it is also apparent that citizens do not generally face a prospect of harm by reason of their political opinions, although some political leaders such as "senior Army generals" might face occasional harassment. Significantly, a DFAT report, 233/99 of 15 July 1999, remarks that: '… By February 1999, the Royal Cambodian Armed Forces (RCAF) had also completed the process of reintegrating former Royalist rebel forces (and also defecting Khmer Rouge soldiers) into the RCAF. Royalist commander Nhiek Bun Chhay has been amnestied and returned to a senior political position in Phnom Penh, and the military resistance has officially ended.' In support of his claims of continuing political violence the applicant has submitted newspaper articles from the Phnom Penh Post of 9-22 June 2000 and The Cambodia Daily, 8 June 2000. One article refers to the killing of a farmer who was also the 'Funcinpec candidate for the commune elections'. His wife was also killed. The article contains speculation that the killings were politically motivated and alludes to an investigation into the matter authorized by the provincial governor. A second article refers to the intervention of Hun Sen in certain criminal cases in which the penalties were thought to be too light. A third article refers to the continuing existence of human rights abuses in Cambodia and to certain claims made by the director of the Office of the High Commissioner for Human Rights in Cambodia. The Tribunal accepts that there are continuing abuses of human rights in Cambodia and that criminality is rife. There is no material to indicate, however, that persons with the political profile of the applicant face a real chance of persecution. The investigation into the killing of a FUNCINPEC candidate for local election might ultimately reveal a political motivation in that case. Even if that were so, the evidence is overwhelming that, apart from possible rare and isolated incidents, active members and supporters of FUNCINPEC do not now face a real chance of persecution. Nothing in other material submitted by the applicant leads to a different conclusion. In assessing all the available material before it the Tribunal concludes that, notwithstanding the continuing existence of random and criminal violence in Cambodia, members of FUNCINPEC with a profile like that of the applicant do not face a real chance of persecution. It is clear that FUNCINPEC members and supporters have openly pursued their political aims and activities in Cambodia in recent years without encountering persecution, except perhaps in rare and isolated incidents. Although a small number of political leaders, including of FUNCINPEC, might encounter occasional harassment the available evidence indicates that members or supporters, even those who were active in the 1993 election campaign and since, do not face a real chance of persecution now or in the foreseeable future." 8 Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.