VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965

FEDERAL COURT OF AUSTRALIA

VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 VBAP OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 619 OF 2004 NORTH J 27 JUNE 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 619 OF 2004

BETWEEN: VBAP OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J DATE OF ORDER: 27 JUNE 2005 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal, other than the costs of the hearing of 19 May 2005. 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 VID 619 OF 2004

BETWEEN: VBAP OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J DATE: 27 JUNE 2005 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an appeal from a decision of Phipps FM delivered on 23 April 2004. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) of 25 January 2002, affirming the decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant a protection visa to the appellant. The Chief Justice determined on 12 May 2005 that this appeal should be heard by a single judge pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 2 The appellant is a citizen of Sri Lanka who arrived in Australia on 5 November 2001 as the holder of an entertainment visa. That visa was cancelled when the sponsor withdrew support, and the appellant was taken into migration detention. On 9 November 2001 he applied for a protection visa. This application was refused by the delegate on 6 December 2001. 3 The appellant claimed that if he were returned to Sri Lanka he would be persecuted on the basis of his political views. These stemmed from his being an active supporter of the People's Alliance (PA). He became a member of the PA in 1998 and was on the election committee of his local branch for the elections held in 2000. He supported the Chief Minister of the Western Province, Mr Reginald Cooray, a popular federal PA politician. The appellant, however, lived in another electorate. The sitting member in that electorate, Mr Rathnasiri Wickramanayake, became Prime Minister in late 2000. The appellant claimed that he and his family were threatened by the Prime Minister because he supported Mr Cooray. The support involved distributing leaflets, recruiting local supporters and attending meetings and rallies. 4 The appellant claimed that he withdrew from active participation in the PA after the October 2000 elections because of the threats, but that he continued to support Mr Cooray and accompany him at some functions. He said that he continued to receive further threats, particularly before the December 2001 elections. The appellant said that he went into hiding from October 2001 and that he stayed with Mr Cooray and some friends but did not report these threats to the police because he was fearful of them. The appellant said that he resided at the same address in Sri Lanka until he left for Australia, because that was the only address he had, and that he secretly visited his parents about once a week. He claimed that his enemies still visited his parents about once a week to make threats. 5 In support of his case he provided a copy of a facsimile message from Mr Cooray dated 2 January 2001 addressed to the 'Australian High Commissioner in Australia'. The facsimile stated that the appellant was an 'ardent supporter' of the PA but, due to the recent change of government, supporters of the former government were encountering harassment, including threats to their lives. It stated that the appellant left Sri Lanka 'on account of this unfortunate problem'. 6 The appellant also claimed that supporters of the opposition United National Party (UNP) threatened him and his family, and that he feared he would be under added threats as the December 2001 elections approached. Those elections were ultimately won by the UNP. He said that in October 2000 the windows in the family house were damaged and the matter was reported to police, but nobody was arrested. 7 The Tribunal accepted that the appellant was a national of Sri Lanka, that he was ethnically Sinhalese, that he was a follower of the Buddhist religion and that he was born and lived near Colombo until he left for Australia. It also accepted that he actively supported the PA, including during the 2000 elections. 8 The Tribunal rested its decision on four bases. First, it analysed the situation concerning political violence in Sri Lanka around election times. It referred to an Australian Department of Foreign Affairs and Trade cable, CL439 of 30 December 1996 (CX20894), which described the violence that occurred around the 1994 and subsequent elections. The cable was to the general effect that this violence was generalised and undertaken by all sides. The cable also indicated that in relation to the August 1994 parliamentary elections and the November 1994 presidential elections, the leader of the PA spoke out against some criminal elements which had been responsible for election violence. The cable also reported that the President had spoken against political violence on a number of occasions. In relation to claims of political harassment generally, the cable concluded: There may be individual cases of political rivalries leading to violence, but all parties have equal access to the law and to police protection. Following reference to the cable, the Tribunal concluded that it was plausible that the appellant had received threats from the Prime Minister's camp, even though he was serving the same political party. The Tribunal also accepted that it was plausible that the appellant had been threatened by UNP supporters, and the windows of the family home smashed during the lead up to the October 2000 elections. The Tribunal found that, nonetheless, the appellant's family continued to live at the same address. 9 The Tribunal further concluded that the threats against the appellant were not implemented, notwithstanding that the appellant continued to openly support Mr Cooray and was able to remain in Sri Lanka for almost a year after the 2000 elections without being harmed. The Tribunal did not accept that the appellant had been in hiding as he had claimed. Rather, it was satisfied that he remained living at his usual address. Importantly, the Tribunal concluded that the threats made were idle threats made in the context of an election campaign. The Tribunal concluded: The fact that they were never implemented and the Applicant was not otherwise harmed, contributes to a conclusion that there is not a real chance he faces a real chance of persecution in the reasonably foreseeable future, notwithstanding the UNP won the last election. While that is the case, the Tribunal notes that the country is still led by Mrs Kumaratunge, the PA leader, and also notes that it has not been referred to, nor has it otherwise noted, that the UNP has taken action against PA supporters since the election campaign. 10 At this point the Tribunal referred to the facsimile from Mr Cooray as follows: In drawing these conclusions, the Tribunal has considered the facsimile that is purportedly sent by Mr Cooray. It is sent to the Australian High Commissioner in Australia. It is not credible that a former federal MP in Sri Lanka would expect Australia has a High Commissioner in Australia, as such people are overseas representatives. It also states that the Applicant is the 'bearer of the letter' although there is no letter to be borne, and it states he was forced to leave Sri Lanka because the UNP had been elected, although the Applicant left before such elections. It was sent to his parents' place, although the Applicant is in Australia and is the 'bearer' of the letter. It has other errors, such as spelling 'Minister' 'Misnister' and being dated 2001, although they might be typographical errors. Overall, the Tribunal is not satisfied that the letter is genuine and concludes it has been fabricated in an attempt to strengthen the Applicant's claims for protection. It does not alter the conclusion that the Applicant is not a person to whom Australia has protection obligations. 11 Following reference to the facsimile from Mr Cooray, the Tribunal again summarised its conclusion concerning the threats directed to the appellant as follows: The Tribunal is satisfied that the Applicant was one of numerous ordinary members and supporters of the PA who encountered some unsavoury threats in the context of election campaigning, from both another faction of the PA and the UNP. Such threats were idle and the Applicant was not a refugee when he left Sri Lanka because there was not a real chance he faced persecution. Nor is there a real chance the threats might be implemented if he returns to his country of nationality or that he will otherwise be persecuted for reason of his political opinions. 12 Thus, the first basis upon which the Tribunal rejected the appellants claims was that the harm which the Tribunal accepted the appellant had suffered was not properly characterised as persecution. 13 The Tribunal then moved to a second basis for its decision. It commenced this discussion with the following: Further, his fears of harm in the context of the generalised electoral violence that accompanies political campaigning in Sri Lanka, are not Convention-related. 14 The Tribunal then noted the following statement made by Hely J in Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73 at [9]-[10]: Despite finding that violence was a pervasive part of the culture of political life in Bangladesh, RRT was of the view, based on independent evidence, that members or supporters of the Jatiya Party were not subjected to treatment which could be characterised as persecution by members or supporters of other political parties. Although RRT accepted that if the applicant returned to political activities upon returning to Bangladesh he could be harmed by members of other political parties, if that occurred, it would be in the context of acts of violence committed by members of all Bangladeshi political parties, and not as a result of persecution. The fact that all political parties are from time to time involved in armed clashes with the police and with each other, as part of the political milieu of Bangladesh, does not mean there is persecution within the meaning of the Convention, because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution, and because it lacks the requisite 'official' quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of Bangladesh. 15 Applying this approach, the Tribunal concluded: In the circumstances of the immediate matter, the Tribunal finds that the Applicant was merely threatened in the context of general violence committed by members of all political parties campaigning for elections in Sri Lanka and not as a result of persecution. 16 The Tribunal then discussed a third basis upon which its decision rested. In view of the arguments raised on appeal it is necessary to set out a more lengthy passage concerning this issue. The following passage represents the entirety of the Tribunal's reasoning on the question of the availability of state protection to the appellant, and it states: In any event, the Tribunal is satisfied that the Applicant could have obtained state protection when he was in Sri Lanka and can reasonably expect such protection would be extended to him if he returns. His evidence is that he did not report the threats he received to the police or to any other state authority. In the case of Minister for Immigration & Multicultural Affairs v Yasouie [2001] FCA 1133 [since reported at (2001) 116 FCR 7], Hill J canvassed the authorities on the issue of state protection. At 15 he states: "… Tribunal was of the view that the respondents would only succeed if they showed, as the Tribunal thought they did show, that protection from serious harm was not guaranteed to them. The true question for the Tribunal was not that. It was whether the German State was willing and able to protect them." Given that the Applicant did not even seek state protection, it is hardly open to him to claim that the state was unwilling or unable to protect him. He did say that the police are politicised and would not assist him. The delegate has referred to some information that supports a view that there is a degree of politicization, which is exemplified by the ruling party influencing police action or inaction (see para 4.3.10 of the delegate's decision). The Applicant, however, was working for a member of the ruling party and the Chief Minister of Western Province. In those circumstances, it is odd that he did not report the threats against him to the police in anticipation of being extended the protected measures available to the authorities. Katz J has summarised a relevant aspect of state protection in the matter of Ordeniza v Minister for Immigration & Multicultural Affairs [2001] FCA 35: "22 In Minister for Immigration & Multicultural Affairs v Kandasamy [2000] FCA 67 (Hill, Whitlam and Carr JJ, 10 February 2000, unreported) Whitlam and Carr JJ (with whom Hill J relevantly agreed (see at [31])) pointed out (at [51]) that a finding by the Tribunal of the availability of effective protection in a refugee claimant's country of nationality had two consequences. 23 One was that any fear of the refugee claimant's part of being persecuted for a Convention reason could not be treated as being well-founded. That in turn meant (among other things) that any unwillingness on the part of the refugee claimant to avail himself or herself of the protection of his or her country of nationality could not be said to be owing to a well-founded fear on the refugee claimant's part of being persecuted for a Convention reason. 24 Another consequence was that the refugee claimant could not be said to be unable to avail himself or herself of the protection of his or her country of nationality. The refugee claimant would have a realistic choice of availing himself or herself of the protection his or her country of nationality and reliance on that country would be of practical utility." While there is some information that police can sometimes be influenced, the delegate has also referred to recent information that indicates the authorities have sought to provide protection to all parties during the violence of election campaigns (see para. 4.3.11 of the delegate's decision). That is consistent with the information discussed in CX20894 [the Department of Foreign Affairs and Trade cable of 30 December 1996], above. In assessing the available information, the Tribunal is satisfied that the Applicant can avail himself of state protection in anticipation that it will be practically extended to him as it would to any other citizen. 17 The Tribunal then considered the fourth basis upon which it rejected the appellant's claims. It determined that it would be reasonable for the appellant to relocate to another part of Sri Lanka. On this subject the Tribunal said: Finally, the Tribunal is satisfied that, whatever else, it would be reasonable for the Applicant to relocate to another part of Sri Lanka, in the sense established through the principles enunciated by Black CJ in the matter of Randhawa v Minister for Immigration Local Government and Ethnic Affairs 1994 52 FCR 437 at 440-1. The Applicant is willing to remain in Australia to avoid such difficulties and there appears to be no reason why he could not avoid such problems in Sri Lanka by avoiding the violence that accompanies election campaigning while still exercising his rights to participate in the political process by working in the background and voting for his preferred candidates. He told the Tribunal that it was only local UNP supporters who know him and the Tribunal is satisfied that it would be reasonable for him to relocate to Colombo, 40 kilometres from his home village, if he remains anxious about being persecuted. He has experience as a clerk and would still be able to keep in contact with his family, while avoiding the local political thugs. 18 The appellant then applied to the Federal Magistrates Court for review of the Tribunal's decision. Some of the arguments which have been pursued on appeal to this Court were argued before the Federal Magistrate, namely, that the Tribunal fell into jurisdictional error by denying natural justice to the appellant and failing to comply with the requirements of s 424A of the Migration Act 1958 (Cth) (the Act) in relation to both the treatment of the facsimile from Mr Cooray and the conclusion that the appellant could relocate to Colombo. It was also argued that the Tribunal had fallen into jurisdictional error in its conclusion that the appellant could avail himself of state protection. The Federal Magistrate rejected each of the appellant's arguments. 19 The arguments now raised on appeal have been somewhat refined, and in one instance attempted to be expanded, from those which were argued before the Federal Magistrate. I will first deal with the appellant's argument concerning the Tribunal's reasoning on the state protection issue. 20 The appellant focused upon the following sentence in the Tribunal's decision: Given that the applicant did not even seek state protection, it is hardly open to him to complain that the state was unwilling or unable to protect him. In his written submissions the appellant said in relation to that sentence that: 42 … the Tribunal shews that the Tribunal here fell into jurisdictional error in misunderstanding the law. The statement of principle was clearly wrong and cannot be regarded as negatived by the later references of the Tribunal (CB 101.4) to information before the respondent's delegate of attempts by the authorities to provide protection to all parties. The Tribunal here has applied the wrong test, and thus acted without jurisdiction. 43 An appellant need not have sought State protection in order to have well founded fear of persecution. The issue is only whether, as a matter of fact, the State cannot, or will not, protect an applicant. The learned Magistrate therefore erred in not finding that the Tribunal erred in relation to whether the appellant could claim to be without state protection and thus a refugee if he had not sought state protection (Judgement below [23]-[24]). 21 The appellant is correct in his submissions that it is not necessary for an applicant to have sought state protection in order to complain that the State is unwilling or unable to protect him. The issue is only whether as a matter of fact the State cannot or will not protect an applicant. 22 However, in this case, the Tribunal did not confine itself to a consideration of whether the appellant claimed state protection. Rather, it canvassed the facts generally to come to its conclusion that the State would extend protection to the appellant. The section of the Tribunal decision reproduced in the reasons at [17] shows that the Tribunal considered various factual sources both in favour of and against the proposition that protection was available, and came to a conclusion that the appellant was able to avail himself of that protection, and that it would be practically extended to him as it would to any other citizen. 23 The hearing of this appeal was adjourned after the first day in order to allow the parties, and in particular the appellant, to refer to the transcript of the proceedings before the Tribunal in order to develop some of the procedural fairness and s 424A arguments. As a result of that reference to the transcript, and pursuant to orders of the Court, both parties filed further submissions. In a very belated attempt to succeed on the appeal, the appellant raised a further argument in relation to state protection. He contended that the Tribunal did not properly consider whether 'effective' protection would be extended to him. The Tribunal, it was contended, focused merely on whether 'the authorities have sought to provide protection to all parties' and whether protection 'will be practically extended to him as it would to any other citizen'. 24 This argument is an attempt to examine in microscopic detail every word used by the Tribunal in order to uncover some error. It is not an appropriate or proper approach for a fair evaluation of a Tribunal decision for the purposes of judicial review (see Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). In my view, the Tribunal gave consideration to the question of whether effective protection was available to the appellant upon his return to Sri Lanka, and after an analysis of the evidence available to it, determined that such protection would be available. 25 The Tribunal relied upon the availability of state protection as a separate and independent basis for its decision on the appellant's application. This being so, the appellant needs to succeed on this argument in order succeed on the appeal. As he fails on this argument, the appeal must be dismissed. 26 Nonetheless, it is appropriate that I give brief attention to a number of the other arguments raised. In relation to the Tribunal's consideration of the possibility of relocation within Sri Lanka, the appellant argues that he was denied procedural fairness, and that the Tribunal acted in breach of s 424A of the Act. It was contended that the Tribunal did not give the appellant an opportunity to respond to the argument that the appellant could relocate to Colombo. 27 However, reference to the transcript of the Tribunal hearing on 24 January 2002 shows that there is no basis to this argument. The issue of relocation was raised with the appellant in the course of the proceedings. When the Tribunal asked the appellant why he did not move to Colombo away from the local UNP supporters who knew that he was active in the local PA branch, the appellant replied that Colombo was about 41 kilometres from where he lived, that Sri Lanka is a small country, and that most of the people in the area where he lived worked in Colombo. He said that even if he lived in Colombo, a person from his village could see him in Colombo. The following exchange then occurred: [Tribunal Member]: The chances are pretty slim, aren't they? [Applicant, through interpreter]: Because of the fear I had, I didn't want to take chances. 28 There was, in my view, no unfairness about the Tribunal's dealing with the issue of relocation. The facts on which it found that relocation was available were sought from the appellant and he responded. Neither did the Tribunal's conduct disclose a breach of s 424A. The information on which the conclusion was based was provided by the appellant for the purpose of the application, and thus fell within the exception in s 424A(3)(b) of the Act. 29 Finally, the appellant argued that the Tribunal failed to accord procedural fairness and acted in breach of s 424A of the Act in the way in which it dealt with the facsimile from Mr Cooray. It is unnecessary for me to come to a final conclusion on this issue. The Tribunal may have been in breach of s 424A in the way in which it dealt with this matter. The Tribunal did suggest to the appellant, that the facsimile may be 'a bit made up', and asked him: [Tribunal Member]: … Are you sure you haven't had this fabricated? In this way the general question of the genuineness of the facsimile was raised with the appellant. However, the Tribunal did not expressly put to the appellant that a reason for regarding the facsimile as fabricated was that it was addressed to an Australian High Commissioner within Australia, an official who does not exist. 30 It may well be that the fact that there is no Australian High Commissioner in Australia is information for the purposes of s 424A of the Act. Section 424A only applies to information which is the reason, or a part of the reason, for affirming the decision under review. In the context of this case the Tribunal used its view that the facsimile was not genuine as bolstering its already arrived at conclusion that the appellant was not a person to whom Australia owed protection obligations. That would seem to render the question of the existence of an Australian High Commissioner within Australia a part of the reason for affirming the decision under review. In this analysis, the information would not fall within the exemption in s 424A(3)(a). 31 It is difficult sometimes to draw the line between what amounts to information and what amounts to part of the reasoning process of the Tribunal. I am inclined to think that the existence of an Australian High Commissioner in Australia amounts to information. Consequently, it may be that the failure to give the appellant written notice of this basis upon which the facsimile was to be rejected may have amounted to a breach of s 424A of the Act. 32 It was argued on behalf of the appellant that if a breach of s 424A of the Act in this respect had been shown, then as a result of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 15; (2005) 215 ALR 162 (SAAP), the decision of the Tribunal must be set aside. I cannot accept this submission. 33 As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal's decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported. 34 Finally, I should say that the appellant was most ably represented by Mr Krohn of counsel, who acted pro bono. One cannot imagine more thorough advocacy than has been undertaken for the appellant on this appeal. Every possible argument and more have been raised. The appellant should feel that he has had a very generous opportunity to contest the Tribunal's decision, albeit unsuccessfully. 35 The order of the Court is that the appeal is dismissed, and that the appellant should pay the respondent's costs of the appeal, other than the costs of the hearing of 19 May 2005. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.