FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495 MIGRATION – judicial review – protection visa – whether Tribunal correctly applied s 91R of the Migration Act 1958 (Cth) by finding that death threats were not prima facie instances of serious harm – appeal allowed Migration Act 1958 (Cth) s 91R Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487, referred to MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v VBAO OF 2002 V 680 OF 2004 MARSHALL J 19 NOVEMBER 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 680 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: VBAO OF 2002 RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 19 NOVEMBER 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Federal Magistrates Court of 14 May 2004 be set aside 3. The application for judicial review of the decision of the Refugee Review Tribunal of 29 January 2002 be dismissed. 4. Within 7 days of the date of this order the parties file and serve brief written submissions on the question of costs, including any application under s 6(2) of the Federal Proceedings (Costs) Act 1981 (Cth), which the respondent may make. 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 680 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: VBAO OF 2002 RESPONDENT JUDGE: MARSHALL J DATE: 19 NOVEMBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This matter is an appeal from a judgment of a Federal Magistrate, in which his Honour declared a decision of the Refugee Review Tribunal ("the RRT") to be invalid and ordered that a writ of certiorari issue to quash the decision and a writ of mandamus issue to require the RRT to determine the application before it according to law. 2 The question for determination in the appeal is whether the Federal Magistrate erred in concluding that the RRT had misapplied s 91R of the Migration Act 1958 (Cth) ("the Act") by incorrectly determining the meaning of "persecution" in the context of its findings concerning the respondent. Background 3 The respondent is a citizen of Sri Lanka. He is a musician who entered Australia on 5 November 2001. On 9 November 2001 he applied for a protection visa. A delegate of the appellant refused that application on 6 December 2001. On 13 December 2001 the respondent applied to the RRT for a review of the decision of the delegate. The RRT conducted a hearing on 22 January 2002 at which the respondent gave oral evidence. On 29 January 2002 the RRT affirmed the decision of the delegate not to grant the respondent a protection visa. 4 The respondent claimed before the RRT that he had a well-founded fear of persecution, if returned to Sri Lanka, by reason of his political opinion. He claimed, amongst other things, that he is a member of a political party and that members of a rival political party had threatened his life. He said that he had received threatening telephone calls and letters saying that he should not take part in political activities. He claimed that he was told that if he reported the incidents to police then his father would be killed. Accordingly he did not report the threats to the police. After being assaulted by members of a rival political party in December 2000, the respondent said he received ten telephone calls and letters telling him not to work for his party or take his band to political gatherings. The RRT's decision 5 The RRT accepted that the respondent was a supporter or member of the party known as the People's Alliance ("the PA"). However, it found that his involvement was limited to voting for the PA, assisting it with practical tasks during election campaigns, attending rallies and occasionally providing musical entertainment. 6 The RRT accepted that the respondent might have received intimidating and threatening telephone calls and letters and that thugs connected with an opposing political party assaulted him. 7 The RRT said that it considered the telephone calls and letters, "while no doubt troubling" not to involve serious harm to the respondent. It considered the assault on the respondent as an "isolated incident". It found that there was no serious intent to harm him. It also found that the chance of the respondent coming to serious harm upon return to Sri Lanka because of his past political involvement was remote, given the nature and extent of that involvement. 8 The RRT finally considered that there is a "measure of police action [which] further limits the chance that the [respondent] would face serious harm because of political activity in which he might take part upon his return." Legislative Context 9 Section 91R of the Act provides that: "Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol." The judgment under appeal 10 The Federal Magistrate said that the RRT accepted that the respondent "had received threats to his life" and that "(p)rima facie, such threats must comprise instances of serious harm within … section 91R of [the Act]." 11 His Honour described the reference in s 91R(2)(a) of the Act to "a threat to a person's life or liberty" as an instance of serious harm for the purposes of section 91R(1)(b). His Honour concluded that oral or written threats to a person's life constitute persecution under s 91R, provided that such threats were "real" ones, and not made idly or in jest. He said at [33] of his reasons for judgment that: "In my opinion, a threat falls within the meaning and contemplation of section 91R(2)(a) if the words spoken or written, or the action taken, could fairly engender in the mind of a reasonable person a reasonable apprehension that his life or liberty is genuinely at risk." 12 His Honour concluded that the RRT had failed to "properly or fairly address" the respondent's claims and "failed to properly apply s 91R…" and thereby made a jurisdictional error. 13 The essence of the judgment below appears to be that the RRT erred by considering that threats made to the respondent did not constitute persecution under s 91R. The appellant's submissions 14 Counsel for the appellant submitted that the controversy regarding the application of s 91R could be resolved by recourse to established principles of statutory construction. The respondent did not resile from this approach and before this Court, the argument was essentially reduced to a contest between disparate definitions of the word 'threat', as it appears in s 91R(2)(a). 15 Counsel for the appellant submitted that the word 'threat' must connote 'risk', in the sense of danger or hazard, so that considered in its entirety, s 91R(2)(a) contemplates persecution involving an instance of serious harm which manifests itself as danger to life or liberty, as distinct from a possibility of danger. In making this submission, counsel had regard to the ordinary meaning of the word 'threat' and its immediate statutory context. 16 Counsel for the appellant acknowledged that the word 'threat' could be defined in the manner contended for by the respondent, i.e. to mean 'a declaration of intention or determination [to inflict punishment, pain or loss]' but submitted that, when viewed in its proper statutory context, the only plausible meaning to be attributed to 'threat' was the one relied on by the appellant. 17 Counsel referred to the syntax of s 91R(2)(a) as indicative of the Legislature's intention to adopt the meaning of threat contended for by the appellant. Counsel submitted that the draftperson, faced with a discernible choice, employed language (a threat to life or liberty) that was compatible with the word 'threat' being synonymous with 'danger'. As a matter of syntax, 'threat' in that context, must be a risk or danger to something. Counsel submitted that the contrary meaning of threat, for which the respondent contends, would, as a matter of syntax, be followed by the preposition 'to' and a verb (eg. a declaration of intention to kill). 18 Counsel for the appellant also called in aid the common law presumption that a draftperson will have used a word consistently. Counsel submitted that the word 'threat', albeit appearing in a different grammatical form elsewhere in s 91R(2), consistently with s 91R(2)(a), bore the meaning in sections 91R(2)(d), (e) and (f) of a threat, in the sense of danger, to a person's capacity to subsist, consequent upon respectively, significant economic hardship, denial of access to basic services and denial of capacity to earn a livelihood of any kind. 19 It was further contended on behalf of the appellant, that elsewhere in the Act, the word 'threat' has the meaning 'risk,' 'peril' or 'danger'; see ss 500A(1)(d) and 202(1)(a). This, counsel submitted, was evidence of the consistent treatment the word 'threat' has received throughout the Act. 20 Finally, on the point of construction, counsel for the appellant submitted that the Court should have regard to certain extrinsic materials, including notably, the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001, which stated at [19] by way of introducing the new section 91R, that: "claims of persecution have been determined by Australian courts to fall within the scope of the Refugees Convention even though the harm feared fell well short of the level of harm accepted by the parties to the Convention to constitute persecution". It follows, counsel submitted, that the Legislature could not be taken to be endorsing the adoption of a lower level of harm than would amount to persecution under the Refugees Convention. In relation to the judgment of the Federal Magistrate, counsel submitted that the finding that a 'threat' in the sense advanced by the respondent, is prima facie an instance of serious harm within the meaning of s 91R is inconsistent with the Legislative intent as evidenced by the Explanatory Memorandum. 21 Counsel for the appellant submitted that even if s 91R(2)(a) does not have the meaning for which the appellant contends, then the appeal must succeed if the RRT is found to have made either of two findings of fact and that it was open to it to do so. The first of those findings of fact was that the oral and written threats received by the respondent did not, in all the circumstances, amount to 'serious harm' within s 91R of the Act. 22 Counsel referred to the RRT's finding that, contrary to his claim, the respondent had not escaped serious harm simply by hiding. Counsel noted the following passage in the RRT's reasons: "Had there been a serious intent to harm him, I consider that those determined to do so could have watched and waited and seized the moment." 23 It was contended that on a fair reading of the RRT's decision, the RRT considered that the threatening telephone calls and letters did not amount to serious harm in the circumstances. It was further contended that the Federal Magistrate should have held that that finding was open on the evidence before the RRT, given: · his Honour's acceptance that not all threats of death will necessarily constitute "serious harm" · his Honour's conclusion below that the respondent had conceded that the threat must be a real threat as distinct from an idle one or one made in jest · his Honour's view that the number of threats may mean that the degree of actual risk is either increasing or diminishing (in the latter sense showing that those making the threats could not carry them out) · his Honour's conclusion that the form of the threat and the capacity of the person making it to carry it out is a relevant factor in determining whether the threat is comprehended by s 91R(2)(a). 24 Counsel for the appellant submitted that whether the respondent was at risk of serious harm was a question dealt with by the RRT, which concluded that he was not at such risk. It was further submitted that that finding of fact was open on the evidence before the RRT and could not be overturned in judicial review proceedings. 25 Counsel also drew the Court's attention to the findings of the RRT (collectively, the second findings of fact) that: · the respondent had limited political involvement · the chance of the respondent being seriously harmed because of that involvement or a resumption of it was remote · police action would limit any chance of serious harm occurring on account of political activity. 26 Counsel submitted that the RRT did not fall into jurisdictional error but properly applied s 91R of the Act to the claims made by the respondent. Given the finding of the RRT that the police in Sri Lanka could protect the respondent from politically motivated attitudes, effective protection to the respondent, it was submitted, could be provided in his own country: see Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [21] to [25]. Accordingly, as the argument ran, the respondent could not be said to have a well-founded fear of persecution, even if the threats could constitute serious harm. The respondent's submissions 27 Counsel for the respondent submitted that under s 91R, a threat to life, of itself, is taken to be serious harm. Counsel referred to s 91R(2)(a), which describes "a threat to the person's life or liberty" as one of several instances of serious harm. 28 Counsel contended that s 91R defines serious harm but does not deal with whether the harm will eventuate, which is an assessment to be made as part of an objective consideration of the chance that the harm feared will occur. 29 Counsel submitted that the appellant is wrong in contending that a threat to life must be read as a risk or danger to life of such a degree so as to require the RRT to assess the likelihood of life being lost or endangered as part of its assessment of whether the harm is serious. Counsel contended that to do so would be to invite the RRT to engage in a meaningless process of evaluating the chance of a chance. 30 Counsel contended that the correct approach is for the RRT to: · acknowledge that, provided it has the capacity to instil fear, a threat to life is "serious harm" which would constitute persecution if carried out for a Convention reason · then decide whether the fear of that harm occurring is well founded, such that it is likely that the fear will eventuate if the person is returned to the country concerned. 31 Counsel submitted that the Federal Magistrate was correct to conclude that the making of a threat to life is serious harm for the purpose of s 91R(1)(b). Counsel contended that the apprehension attending a threat to life is the type of psychological injury to which the Refugees Convention is directed. It followed, counsel submitted, that his Honour was correct to find that the RRT erred by not properly applying s 91R. Counsel also said that the error identified by his Honour was material because it showed the RRT failed to determine the application in accordance with law. 32 Finally, counsel submitted that the RRT formed no view as to whether the respondent would face threats to his life in the future and, to the extent that state protection was considered, it was not done so in respect of the harm contemplated by s 91R(2)(a). Counsel contended that, in any event, any subsequent reasoning of the RRT could not cure its fundamental antecedent error of construction. Consideration 33 In the introductory portion of the RRT's reasons for decision, the RRT noted that there were "four key elements in the Convention definition" of refugee. The first was that the visa applicant must be outside the country of origin. The second was that the visa applicant must fear persecution as defined by s 91R. The third was that the visa applicant must fear persecution for a Convention reason. The fourth was that the fear of persecution for a Convention reason must be well founded. 34 The RRT was satisfied as to the first key element. The RRT was not satisfied as to the second key element. It considered that the death threats did not constitute serious harm. In my view, this finding was entirely open to the RRT. 35 The principles of statutory construction, applied to s 91R(2)(a), favour the definition of 'threat' advanced by the appellant. When regard is had to extrinsic material, in particular the Explanatory Memorandum referred to at [20], the position is put beyond doubt. 36 Section 91R is a relatively recent addition to the Act, designed to set the parameters and raise the threshold of what can properly amount to 'serious harm', within the spirit of the Refugees Convention. Against this backdrop, the word 'threat', in the context of s 91R(2)(a), cannot sensibly be construed to have the meaning contended for by the respondent. 37 It could not, in my view, have been the intention of Parliament that threats in the form of declarations of intent, could prima facie constitute serious harm. Even with the qualification to s 91R(2)(a), which the respondent submits must operate to exclude from its scope, threats which do not have the capacity to instil fear, it is clear that application of the respondent's definition would be productive of anomalous consequences. 38 For example, a threat to kill, inadvertently directed to an individual in a case of 'mistaken identity', may well engender fear in the unsuspecting recipient not appraised of the circumstances in which the threat has been made. However, this could not be serious harm of the type contemplated by either Parliament or the Refugees Convention. 39 Conversely, instances of what may well have been contemplated as constituting serious harm, may avoid this classification if they take the form of actions which in fact threaten a person's life or liberty but are not accompanied by any declaration of intent. An example which comes to mind is a failed assassination attempt. 40 As counsel for the respondent, in his written submissions, contended, 'whether adverse treatment constitutes persecution, involves a consideration of whether the harm is sufficiently serious'. In my view, Parliament did not intend that threats in the form of declarations of intent, can prima facie on their own constitute serious harm. 41 Counsel for the respondent contended in written submissions that 'if an applicant fears he or she will lose their life there is no doubt the harm feared would constitute persecution…' That is to elevate the element of fear to an impermissible level. All instances of alleged serious harm have the potential to agitate their victim but this is not the hallmark of their categorisation as instances of serious harm. Rather, serious harm contemplates that a person's livelihood or well-being will be jeopardised in a material way. This is not to deny that threats of the kind directed at the respondent can never constitute serious harm, but they do not, of themselves, automatically qualify for that description. 42 The question of whether something may constitute serious harm is determined at the time at which the RRT considers an application. The process involves an assessment as to whether the conduct or action relied on as constituting an instance of serious harm, in the case of s 91R(2)(a), endangers or puts in jeopardy the applicant's life or liberty and, whether the fear which attends this conduct or action and the chance of its reprisal, is well-founded. Whilst the assessment does involve postulating two different questions, there is an air of unreality accompanying an insistence that the questions be answered independently. 43 Steps two and four, referred to above at [33], are to be considered contemporaneously by looking at the circumstances which prevailed at the time of the alleged instance of serious harm and the factors which are operable at the time of the decision. 44 Whilst the RRT answered step 2 adversely to the respondent, it went on to consider whether there was a well-founded fear that the respondent would suffer persecution if returned to Sri Lanka. The RRT did not accept that death threats, in the circumstances in which they had been made, were instances of serious harm. However, it did not conclude its assessment at that point. The RRT proceeded to assess the chance of the respondent coming to serious harm upon return to Sri Lanka on account of his political opinion. It did so, having regard to the past treatment of the respondent and the then current political climate. It considered that effective protection could be afforded to the respondent by Sri Lankan police and that the respondent had a low political profile. That was a question of fact for it to determine. In arriving at this conclusion, the RRT correctly applied s 91R. In my respectful opinion, the Federal Magistrate erred in finding otherwise. 45 For the foregoing reasons, the appeal should be allowed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 19 November 2004 Counsel for the Appellant: Ms J Macdonnell Solicitor for the Appellant: Clayton Utz Counsel for the Respondent: Mr R Niall (pro bono) Date of Hearing: 10 November 2004 Date of Judgment: 19 November 2004