VGAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 884

FEDERAL COURT OF AUSTRALIA

VGAJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 884

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – Sri Lankan national – claims risk of persecution by members of opposition political party – adverse findings by Tribunal – claimed failure by Tribunal to refer to country information – no jurisdictional error – appeal dismissed Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 cited VGAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W68 OF 2003 FRENCH J 19 AUGUST 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W68 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: VGAJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 19 AUGUST 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to 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

WESTERN AUSTRALIA DISTRICT REGISTRY W68 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: VGAJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 19 AUGUST 2003

PLACE: PERTH

REASONS FOR JUDGMENT 1 The appellant is a national of Sri Lanka who arrived in Australia on 29 December 1999. She came to this country on a Sri Lankan passport which had been issued in Colombo on 18 November 1993. In February 2000, she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. Her only child, a son, was included in the application although it was her claims for a protection visa that underpinned it. On 25 February 2000, the application was refused by a delegate of the Minister for Immigration and Multicultural Affairs and on 17 March 2000 the appellant sought review of that decision in the Refugee Review Tribunal ('the Tribunal'). 2 The Tribunal, on 29 June 2001, affirmed the decision of the Minister's delegate that the appellant and her son were not entitled to protection visas but the Tribunal's decision was set aside and remitted to it for reconsideration by a decision of the Federal Court on 15 March 2002. The Tribunal, differently constituted, then undertook a review pursuant to the order of the Federal Court and on 2 July 2002 again affirmed the decision of the minister's delegate to refuse to grant protection visas to the appellant and her son. 3 The appellant then applied for review of the Tribunal's decision in the Federal Court. That application was remitted to the Federal Magistrates Court for hearing and decision. On 24 March 2003, Driver FM dismissed the application for review and ordered that the appellant pay the costs of the application which were fixed in the sum of $3,000. Subsequently the appellant filed a notice of appeal to this Court against the learned magistrate'sdecision and, pursuant to a direction of the Chief Justice, that appeal has been heard by me sitting as a single judge. 4 The Tribunal's reasons set out comprehensively the claims and evidence to which it had regard in making its decision. I will endeavour to summarise those claims and evidence. 5 The appellant is a Sri Lankan national, Sinhalese and a Buddhist, educated between 1953 and 1963. She also undertook courses in bookkeeping, stenography, motor mechanics and business management. She was employed in various fields from 1970 to 1999 although she was unemployed for two years from 1996 until 1998. Her occupation was described as that of a sales manager. She first applied for a job with the Peoples Bank of Sri Lanka in 1970 and was selected on merit. However, she claimed that because of the politics of her father she was denied the opportunity of employment. Her father was a member of the United National Party ('UNP'), being a chief organiser of the party at village level. The appellant later found employment with the Ceylon Fertiliser Corporation where she worked from 1970 until 1985. Her husband, whom she had married in 1980, was a member of the UNP and also a nephew of the first Prime Minister of Sri Lanka, Mr D.S. Senanayake. From that time she became involved in politics. Mr J.R. Jayawardene, who was the minister with oversight of the Fertiliser Corporation, later became President and she made the welcome speech to him. 6 The appellant told the Tribunal of her employment and study opportunities over a number of years. The appellant's husband died in 1989 and her father also died during that period. She regarded their deaths as mainly due to political harassment and said that that increased her involvement with the UNP. In 1994, she worked for Mr Gamini Dissanayate who was later assassinated by the LTTE, the Tamil Tigers. It was during that time that she resigned from her employment and set up a BMW dealership with a Mr Reuter, who had been an executive director in her previous workplace. She described how difficulties had developed between herself and another woman who was jealous of her association with Mr Reuter. Mr Reuter had helped her send her son to the International School in Colombo. The other woman was a staunch member of the People's Alliance Party ('PA') which was then in government and according to the appellant made trouble for her. Mr Reuter was anxious to get government business and so withdrew from his relationship with the appellant. 7 The appellant claimed that in October 1996 she was assaulted by political thugs whom she believed were in the pay of the other woman. She complained to police but they would not take down her complaint. Eventually she managed to identify her assailants and finally on her evidence the police had to charge them. While the case was awaiting trial she was pressured to withdraw it. She claimed to have received threats. She eventually agreed to reconciliation but the judge severely reprimanded her assailants and told them they would be sent to gaol if they came before the court again. She was awarded some compensation. 8 In October 1996, the appellant was also suspended from her job and since then she, her mother and her son have had serious difficulties in daily life. She filed an action for wrongful dismissal in 1997. She complained that in May 1997 she was again assaulted and this time taken to hospital. She complained to police about this assault and the assailants were taken into custody but, according to her, politicians interfered and secured the release of the accused. Her medical report was misplaced and she believed this was because of influential politicians. She obtained a police report by other means and sought to commence action in the courts but her lawyers dissuaded her from doing this for her own safety. She said that during the time that she was unemployed the UNP helped her financially. Eventually she was able to secure some employment in 1998, although she continued to work for the UNP full-time. In the 1998 Provincial Council elections, she campaigned for the UNP Chief Minister candidate, Karu Jayasuriya, who was President of the UNP. She claimed to have received numerous death threats by telephone against her and her son, and to have had her electricity and water disconnected. 9 The appellant's mother died on 14 June 1999. She was then able to apply for visas to enable her and her son to leave Sri Lanka. She applied to come to Australia as that visa came through first. She sold up her property and sent her son to Australia in October 1999. She said she had decided to work for a UNP candidate in the presidential elections. She was in charge of the telephone campaign in the Colombo district. Although she received death threats she continued because she believed the UNP candidate would win. Despite this, she remained fearful and decided to apply for a visa to go to Australia to visit her son. 10 From 21 December, the appellant began to receive threats and on the evening of that day a crowd threw stones at her house. She said the police came and chased them away. She went to the police station and laid a complaint but the police refused to accept her complaint. She named a person who was a provincial council member of her area as someone who had threatened her. He had been serving a prison term for murder when the PA government had granted him a pardon. 11 In a submission to the Tribunal the appellant said that she had undergone harassment, abuse and humiliation simply for being loyal to the UNP and for taking part in political campaigns. She elaborated on her submissions generally in an oral hearing before the Tribunal. She was asked questions by the Tribunal about her political activities. These had included making speeches, putting up posters and going from house to house seeking support. She said she had not done this by herself but she was very recognisable as she did all the talking. On this basis she claimed to be a target of PA violence. 12 The Tribunal, however, questioned her as to why she would be a target of politically motivated violence if she were returned to Sri Lanka now. The 2001 election had seen her own party, the UNP, come to power and she had been out of the country for a period of 18 months. Letters of support which had been sent to her were from the present Prime Minister and others who were now ministers in the government. However, she told the Tribunal she had enemies who would not forget and she claimed it was impossible for her to be safe by relocation. She had not told people she was coming to Australia and that was why, according to her, they were still looking for her. 13 She had sold land to provide for her son's fees and expenses in Australia but had not had time to arrange her life properly before she herself decided to flee from the country. She also told the Tribunal she would always remain a member and supporter of the UNP and that she had very close friends who were now in senior positions in government. However, according to her, they could not keep her safe; her enemies would not forget. That was what it was like in Sri Lanka. 14 In its findings and reasons, the Tribunal first addressed the general criteria for the grant of a protection visa under the Migration Act 1958 (Cth). It observed that, given the appellant and her son were from a country which has experienced serious political, economic and social problems and where there had been serious military conflict, it would be understandable that they had a subjective fear of returning to such a country, one which would be shared by many of their fellow citizens. However, the Tribunal noted that it was not the conflict between LTTE militants and others which led them to come to Australia and to seek to remain here as refugees. It was rather the threat of violence by reason of her association with the UNP. The Tribunal observed, having regard to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, both subjective and objective elements are involved in determining whether an applicant for a protection visa has a well‑founded fear of persecution for a Convention reason. The Tribunal accepted in this respect, on the subjective side, that the appellant was fearful at the time she left Sri Lanka and at the time that she made her application for refugee status. It noted that at the hearing before the Tribunal she had expressed a strong fear of returning to her country of nationality. The Tribunal accepting so much, needed to consider whether that fear remained objectively well-founded in the light of changed circumstances in Sri Lanka and it was in relation to those changed circumstances that the focus of its consideration thereafter lay. 15 The Tribunal observed that the major claims made by the appellant related to her membership and active support for the UNP. It accepted that she had had a close association with the party. It also accepted that party political violence has been an obvious element in Sri Lankan elections for some time. It noted that in the most recent election, which resulted in the UNP achieving a parliamentary majority and so forming government, there were some 60 persons killed in election-related violence. The Tribunal put to the appellant that, in choosing to become active in the way she had claimed, she was in effect choosing to be part of a potentially and actually violent system. However, she told the Tribunal she believed her party was less to blame although it was true there was violence on both sides. 16 The Tribunal accepted that she was and is loyal to the UNP. It had no evidence that she herself had acted violently or encouraged others to do so. However, it also considered that she chose over a long period of time to be closely connected with that part of the political process which is known to be violent, especially at election time. The point of that observation on the part of the Tribunal and its relevance to what it had to decide is not absolutely clear. The Tribunal accepted that this did not mean that the appellant had created her own problems; it accepted that freedom of political opinion means freedom to express that opinion. However, it observed that not every political activity is protected activity where others are harmed, as in Sri Lankan party politics. Some onus is put, it was said, on those who participate to support the peaceful expression of political views. As indicated above, the Tribunal accepted that the appellant herself had not directly participated in any politically associated violence. However, these comments, as I have said, seem to bear little relevance to what the Tribunal actually had to decide. 17 The Tribunal went on to consider what had happened, or had been alleged to have happened, to the appellant in the past as a result of her political activities and to determine what could happen to her in the future, and in particular whether it should lead to a finding that she faced a real chance of persecution if returned to Sri Lanka. It observed that her son's situation was fully dependent on hers as he had made no separate claims, so his situation was subsumed into hers. It referred to her account of her various employments and occasions when she was not in paid work and accepted that there were political elements in some of those matters but that these were at the level of influence in connections and not at the level of deprivation of work. 18 In respect of the BMW dealership it observed that her loss of a senior job also involved a political element, however, it was not the major or even the most significant element in the loss of that job. The woman who she saw as her enemy was motivated by personal jealousy although it was plausible that she was more easily used by her employer because she supported the government party and that her employer was motivated by a desire to make money. The Tribunal accepted that her employer's view was that it was no longer good for his business to have an opposition party person in a senior position in his company and that that was a business decision rather than a political one. 19 The Tribunal considered the alleged assaults and threats made on the appellant in their singular form and cumulatively. Although they were not significantly and essentially political they could have been part of a cumulative pattern of persecution. In relation to the alleged assault by thugs associated with the PA said to have been set on her by the woman who had a grudge against her, the Tribunal considered that the appellant was able to make a complaint to the police, to have that acted on, albeit reluctantly on the part of the police, and for her to have her day in court. It was satisfied that the State in its guise as the police and judicial system acted to protect the appellant. 20 A second assault was allegedly connected with her suspension from employment in October 1996 and her filing of an action for wrongful dismissal. It appeared to be more serious in that she needed hospitalisation. It also led to her being persuaded to drop the wrongful dismissal case. The Tribunal accepted it was a serious incident in which the appellant was the victim and in which state agencies did not immediately protect her or her rights. However, she was awarded damages and her attackers were officially warned about their conduct. 21 The Tribunal accepted the appellant had been through a very difficult time and that her employer used rough and ready methods which resulted in harm to her. It did not find that this faced her with a similar problem of a real chance of similar harm if she were to return to Sri Lanka. The Tribunal said: 'Ironically, with the change in government it is her form (sic) employer who might well be again looking for contacts within the new UNP-dominated government. This change of government is a major factor in addressing her claims that she fears harm amounting to persecution at the hands of the PA.' 22 The Tribunal then went on to refer to the appellant's claim that the fact she had worked for the election of the UNP candidate in the presidential elections led to her being threatened and her house being stoned. At her hearing it was clear she had been very frightened by the attack on her home. She had shown photographs of the high wall which surrounded the compound and protected her. The Tribunal accepted that the incident was frightening and that it happened in the context of the presidential election and was therefore a politically motivated attack. However, it noted her evidence that the police had come and chased the crowd away and found this to be an indicator that the appellant and her family were not unprotected and that this was a justifiable and acceptable response by the police. 23 In relation to her canvassing activities and her subjection to verbal abuse and harassment, the Tribunal accepted that this was uncomfortable and even distressing, however, it noted her evidence that no other person in the group canvassing with her was seriously harmed. There would have been threats, tearing down of party posters by rival party members and some exchange of physical violence, but these matters did not result in serious harm either to the appellant or, on her evidence, any member of her campaign group. 24 The Tribunal accepted that the attack on the appellant's home had frightened her and so she had made arrangements to come and see her son in Australia. It accepted that she feared that election violence would result in serious harm or even death to herself. It referred to country information that there had been some deaths associated with the presidential election in December 2000 and it could not be said therefore that her fear was baseless. In this context the Tribunal turned its attention to the question of the situation of the appellant in the foreseeable future should she return to Sri Lanka and it took into account the substantial change which had taken place since she had left her country; most obviously that there had been a change of government and that her own party now had a parliamentary majority. The Tribunal said: 'Many of the senior political figures whom she has supported and who have supported her in their letters to the Department and the Tribunal are now in political office. One of those she campaigned for is now Prime Minister of the country. This raises the question as to whether the Applicant now has access to a level of state protection which can be deemed to be sufficient and appropriate. In assessing this, it is relevant to look at the elections of December 2001 and the consequences of the change in government.' The Tribunal then referred to country information. A report from LankaWorld indicated that, by 15 December 2001, some 2,845 complaints of election related violence had been made. Many concerned the closing of checkpoints and the setting up of blockades effectively preventing some Tamils from voting. There were also the usual reports of PA and UNP initiated violence. The Tribunal said: 'The Election Commissioner commented that unless these two main political parties undertook steps to bring violence under control, people would lose confidence in the electoral process.' This appears from a report in The Lanka Academic of 7 December 2002. The Tribunal went on to note that reports indicate that many areas of the country voted in peace while a few others seemed infected with violence. It referred to a statement attributed to Mr K. Rodrigo in the Third Situation Report dated 5 December 2000 from the People's Action for Free and Fair Elections and the Movement for Free and Fair Elections where it was said: