VDAV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 239

FEDERAL COURT OF AUSTRALIA

VDAV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 239

MIGRATION – appeal from a decision of the Federal Magistrates Court – no ground of error established

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 - applied SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 – cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 - cited VDAV of 2002, MZKAR, MZKAS AND MZKAT v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V934 OF 2003 MERKEL J 15 MARCH 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 934 OF 2003

On appeal from the Federal Magistrates Court

BETWEEN: VDAV OF 2002

FIRST APPELLANT

MZKAR

SECOND APPELLANT

MZKAS

THIRD APPELLANT

MZKAT

FOURTH APPELLANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT JUDGE: MERKEL J

DATE OF ORDER: 15 MARCH 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT the appeal 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

VICTORIA DISTRICT REGISTRY V 934 OF 2003

On appeal from the Federal Magistrates Court

BETWEEN: VDAV OF 2002

FIRST APPELLANT

MZKAR

SECOND APPELLANT

MZKAS

THIRD APPELLANT

MZKAT

FOURTH APPELLANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MERKEL J

DATE: 15 MARCH 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellants have appealed against a decision of a Magistrate dismissing their application for review of a decision of the Refugee Review Tribunal ("the RRT"). By that decision the RRT affirmed a decision of a delegate of the Minister not to grant protection visas to the appellants. 2 The appellants, who are a married couple and their children, are of Sinhalese ethnicity and are citizens of Sri Lanka. They claim to have a well-founded fear of persecution by reason of the involvement of the appellant husband in the early 1970s with the Janatha Vimukthi Peramuna ("JVP") political group. The claim was stated by the RRT to be a claim that the appellant husband has a well-founded fear of political persecution if he returned to Sri Lanka because of his past association with the JVP. The claim was stated to be based upon the recent resurgence of the JVP as a political party; endeavours by certain persons, purportedly acting on behalf of the JVP, to threaten the appellant husband and his family with harm unless he rejoined the party; and the likely renewed suppression by the authorities of the JVP and its present or former members because of a fear of renewed militancy by the JVP. 3 After considering the appellants' claims and independent country information the RRT did not accept the version of events put forward on behalf of the appellants that they had been threatened with harm if they did not support, or become members of, the JVP or that there had been approaches and threats to them that such harm would follow upon their return to Sri Lanka. The RRT also concluded that the appellant husband's past involvement with the JVP in the early 1970s was not a matter that could give rise to a well-founded fear of persecution if the appellants were to return to Sri Lanka in the reasonably foreseeable future. The RRT reiterated that it did "not believe that the JVP were targeting the [appellant] parents for support and threatening them if they did not do so" and it did not accept that "there is any credible evidence that JVP people would seek to do so in the future". It added that it did not "accept that there is any evidence that the authorities would have any interest in the [appellant] husband's past involvement with the JVP". Finally, the RRT concluded that it regarded the appellant parents' fear that there could be a resurgence of JVP militancy, as understandable given the brutality of the movement in the past but it did not consider that the fear "is supported by the weight of the evidence which is that the JVP is now established in the political mainstream". 4 The Magistrate carefully considered the decision of the RRT and found that there was evidence upon which the RRT could base its conclusions and stated that, to some extent, the claims of the appellants of error on the part of the RRT is a disagreement with the RRT's decision and, in particular, with the weight to be given to particular aspects of the evidence before it. As was pointed out by the Magistrate, correctly in my view, that "does not establish a ground for review". 5 The appeal from the Magistrate's decision was directed by the Chief Justice to be heard by a single Judge. Before the Court the solicitor appearing for the appellants repeated the substance of the arguments that had been put to and rejected by the Magistrate. The difficulty confronting the solicitor for the appellants is that the RRT rejected the version of events put forward by the appellants. In my view it is clear that the RRT's credibility findings against the appellants were open to it on the material, were based on rational grounds and were arrived at after consideration of matters that were logically probative of the issue of credibility: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559. 6 I do not accept the contention of the solicitor for the appellants that there was no evidence before the RRT that would have permitted it to find, as it did, that the JVP has emerged as a participant in mainstream Sri Lankan politics. I agree with the Magistrate that the real thrust of the appellants' submission is that it seeks to challenge the RRT's decision on the merits and that submission has failed to identify any jurisdictional error on the part of the RRT. In the present case the RRT's findings that, in substance, rejected the appellants' version of events, was fatal to their claim that, on the basis of threats of harm if they did not join the JVP, they had a well-founded fear of persecution if they were to return to Sri Lanka. 7 Before the Court the appellants' solicitor relied upon the recent decision of the Full Court in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ("SFGB") in which the Full Court (at [18]-[19]) stated that if the RRT made a finding which was a critical step its conclusion and there was no evidence to support that finding that that might well constitute jurisdictional error: see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. That conclusion, however, is of no assistance to the appellants in the present case as I am not satisfied that there is no evidence to support the findings made by the RRT. 8 There is, however, a further fundamental difficulty confronting the appellants in the present case. Their claim was based, essentially, on unlawful threats of harm by individuals said to be associated with a non-governmental political party if they did not join that party. It did not form any part of their claim, nor was there evidence before the RRT, that the state or the authorities had a policy of tolerance or condonation of such threats or that the state or its agencies were unable or unwilling to provide the protection of the law to the appellants in respect of such threats. As was pointed out by the Full Court in SFGB at [27]-[28] a state policy of tolerance or condonation of the conduct constituting the alleged persecution, or an unwillingness or inability by the state to provide the protection of the law and its agencies in respect of the alleged persecution, will usually be prerequisites to the success of a claim of a well-founded fear of persecution for a Convention reason where the conduct feared is not conduct actually or purportedly engaged in by or on behalf of the State, the relevant authorities or their respective agencies. As I have concluded that the appellants have failed in their appeal in any event it is unnecessary for me to further pursue this aspect of the matter. 9 For the above reasons the appeal is to be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.