FEDERAL COURT OF AUSTRALIA VGAK OF 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 762 MIGRATION – judicial review of decision not to grant a protection visa –well-founded fear of persecution – whether the Refugee Review Tribunal misapplied the concept of effective protection in circumstances where it made a positive finding that there was a real chance of persecution – whether the tribunal wrongly held that if the state could provide recourse after a person had been persecuted this was capable at law of constituting effective protection VGAK 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 116 referred to Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 applied VGAK OF 2002 v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS NO. V997 OF 2003 HEEREY J 31 MAY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V997 OF 2003 BETWEEN: VGAK OF 2003 APPELLANT AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 31 MAY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed 2. The appellant pay the respondent's 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 V997 OF 2003 BETWEEN: VGAK OF 2003 APPELLANT AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 31 MAY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant appeals from a decision of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal: VGAK 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 116. 2 The appellant is a 40-year-old male citizen of Sri Lanka. He entered Australia on 17 June 2000 on a valid Sri Lankan passport as the holder of a business short stay visa. He is married with four children. All his family remain in Sri Lanka. He conducted a building business in that country. 3 The claims that are made in support of the appellant's application for a protection visa, revolve around his political activity in Sri Lanka. He had initially supported the SLFP which later joined with the PA, and then the rival UMP party, before shifting back to the PA. He was a member of his local municipal council representing the PA from 1997 until his departure for Australia. 4 The Tribunal accepted that the appellant was threatened when he stood for election in 1997 and that in 1999, during the provincial council election campaign, he was threatened and grenades were thrown into his house on two occasions. The Tribunal accepted that this harm was of sufficient severity such as to constitute persecution. However, the Tribunal did not accept that the Sri Lankan authorities refused to protect the appellant, or that they were unable to do so. In fact, he reported the attack on his house in April 1999. The police investigated the matter and arrested three people who were charged with having committed the crime, although they were subsequently released on bail. It does not appear from the Tribunal's reasons as to whether the case further proceeded against them. 5 After a second attack on his house, the police were unable to identify the offenders but the appellant was given a police guard on his house for three months. The Tribunal rejected the claim of the appellant that after this he went into hiding in Colombo. The Tribunal considered that his delay of nine months before leaving for Australia, gave it cause to doubt the genuineness of his claim to have left the country to escape persecution for reasons of his political opinion. 6 The Tribunal considered and rejected his claim that as well as fear of the UNP, he would be in danger from the PA because he "deserted" that party. However, the Tribunal accepted the appellant's claim that if he was to return to Sri Lanka, there was a real chance that because of his political background he may be subjected to threats and other harms by UNP supporters. But the Tribunal did not accept that such violence would be condoned by the government of Sri Lanka which is currently controlled by the UNP. It referred to evidence relied on for this, including a Reuters business briefing and DFAT cables discussing the present situation. 7 After citing a number of authorities in this Court which state that protection does not imply that the authorities must provide absolute guarantees against harm, the Tribunal found that if the appellant were to return to Sri Lanka the authorities would be able and willing to protect him from politically motivated violence and he would have recourse to the courts if he were to suffer harm. 8 The appellant was represented by counsel before the Federal Magistrates Court. The magistrate considered and dealt in considerable detail with legal argument advanced then on behalf of the appellant. In essence, that argument was that the Tribunal, having found there was a real chance of threats and other harm by UNP supporters and that he would therefore face persecution for a Convention reason, the Tribunal was wrong in going on to decide the application on the basis of effective protection. 9 Further, it was argued that the Tribunal misapplied the concept of effective protection in circumstances where it made a positive finding that there was a real chance of persecution and that the Tribunal wrongly held that if the state could provide recourse after a person had been persecuted this was capable at law of constituting effective protection. 10 The appellant has not had legal representation for the preparation of an appeal or the conduct of this hearing. He instituted the appeal by a notice which contained no grounds at all, and merely stated they would be submitted later. Recently, on 18 May 2004, the appellant filed a document headed "Submissions", which set out what are said to be grounds. In essence they repeat the case that he put before the Tribunal and also go into great detail as to the current political situation in Sri Lanka. 11 I am not satisfied that there has been any error disclosed in the decision of the Federal Magistrates Court. Subsequent to the decision of the Federal Magistrate and indeed, only last month, the High Court has looked again at issues of effective protection in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18. Gleeson CJ and Hayne and Heydon JJ said at [23]: "Even where the harm feared is harm not inflicted by the state or agents of the state but where the state is complicit in the sense that it encourages, condones or tolerates the harm, the same process of reasoning applies. The attitude of the state is relevant to a decision whether the fear of harm is well-founded. It is consistent with the possibility that there is persecution." Also McHugh J at [32] said: "When a person fears persecution for a Convention reason from the random and uncoordinated acts of private individuals, the ability of that person's country to eliminate or reduce the risk of persecution may be relevant in determining whether the person has a well-founded fear of persecution." See also his Honour's statements at [70] and the observations of Kirby J at [115]. 12 In conclusion, I think the Federal Magistrates Court correctly applied the law as to the role of the state of the asylum-seeker's nationality in determining whether effective protection can be given. No error having been disclosed, the appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 17 June 2004 Counsel for the Appellant: Appeared on his own behalf Counsel for the Respondent: Ms S E Moore Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 31 May 2004 Date of Judgment: 31 May 2004