Effective Protection
34 To qualify for refugee status under Article 1 of the Refugee Convention it must be shown that a person, owing to well founded fear of persecution for a Convention reason "…is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". In the case of a person with more than one nationality, as Article 1A(2) provides, that principle applies to each of the countries of which the person is a national. So such a person will not be treated as lacking the protection of the country of his nationality if without any valid reason based on well founded fear he has not availed himself of the protection of one of the countries of which he is a national.
35 In the present case the Tribunal had accepted that A faced a real chance of violence being inflicted on her by fundamentalist colleagues or friends of her husband and that the government of X could not provide her with the requisite level of protection. There was no issue as to the want of protection for A and her children in X. The primary issue in this case concerned the question whether A and her children were unable to avail themselves of the protection of Y or were unwilling, because of their fear of persecution in that country, to do so.
36 The application of the obligations imposed on States by the Refugee Convention is conditioned upon the need for protection which is an element of the definition of a refugee in Article 1A. It is limited by the proposition that a person:
"…cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin. Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be at one's own state." Hathaway - The Law of Refugee Status (Torronto: Butterworths, 1991) at p 135.
37 By virtue of Article 1A(2) this so called "internal protection" or "relocation" principle applies to any country of which the person claiming refugee status is a national. It is connected not so much with the protection that the country of nationality might be able to provide in some particular region but upon a more general notion of protection by that country - Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 441 (Black CJ). In his discussion of the principle in that case the Chief Justice accepted that:
"…a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered." (at 442)
Assessment of those practical realities involves determination of questions of "fact, albeit secondary fact, involving a degree of judgment" - Randhawa at 452 (Beaumont J).
38 It can be accepted, as was submitted for the appellants, that the language of Article 1A focuses upon the well-founded fear of persons claiming Convention protection and their inability or unwillingness, owing to such fear, to avail themselves of the protection of the country of nationality. In that sense the willingness or ability of the country of nationality to provide protection is not the ultimate question. But it is a question which must be considered in the assessment of refugee status. The availability of protection in the country of origin or nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for Convention protection rests.
39 The level of protection that may be available will vary from State to State and perhaps also according to the class of persons claiming refugee status and their circumstances. There is no golden rule which says that a person may never be given refugee protection if they come to Australia from a democratic country governed by the rule of law and with generally effective judicial and law enforcement institutions.
40 It has been suggested that a person claiming refugee status is not ordinarily entitled to rely upon the supposed inadequacy of reasonable state protection available to him or her if it is not inferior to that available to a fellow citizen at risk of serious criminal harm for non-convention reasons - Prathapan v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 41 at 48 (Madgwick J). That however is a proposition which may need to be treated with caution. Convention protection is available for a particular category of harm and outside that category is not available for protection from "other serious harm". The considerations adverted to by Madgwick J would undoubtedly be of relevance and indeed of considerable weight in deciding whether the person in question was unable or unwilling, owing to a well-founded fear of persecution, to avail himself or herself of the protection of the country of nationality. There is always a risk however in elevating classes of relevant factors in evaluative or discretionary judgments to quasi legislative rules or principles. Thus is Thus is evaluation blinkered and discretion fettered.
41 The fact finding and evaluation to be undertaken by decision-makers in relation to applications for protection visas and by the Refugee Review Tribunal on review of their decisions is administrative in character. In consequence it is not appropriate for those decision-makers to draw too closely upon the rules of evidence applied in civil proceedings: see Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 282 where the High Court drew attention to the confusion likely to occur if the Refugee Review Tribunal was to decide questions of fact by adopting the civil standard of proof. It is equally inappropriate for the Tribunal to apply curial devices such as presumptions of law or fact. In Canada (Attorney-General) v Ward (1993) 103 DLR 1 at 23 it was said, in relation to an application for convention protection that: "Nations should be presumed capable of protecting their citizens." But such a presumption, that is a presumption without a basic fact, is a rule of law relating to the existence of a burden of proof and such a rule has no part to play in administrative proceedings which are inquisitorial in their nature. Accordingly, Nicholson J's conclusion the trial judge's conclusion that "there is no foundation in authority or principle which should lead this Court to accept the [Minister's] submission for the existence of a presumption in terms of Ward" is plainly correct. Cases such as Jong Kim Koe v Minister for Immigration and Multicultural Affairs (supra), Prathapan (supra) and Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685, are not authorities for the existence of any presumption.
42 On the other hand it is necessary that the decision-maker form a conclusion about the effectiveness of the relevant state protection and do so on some material whether presented by the claimant, otherwise available to the decision-maker or following additional inquiries by the decision-maker. A ministerial delegate or specialist tribunal dealing with a significant volume of refugee cases in which issues of national protection arise may well become familiar with material relating to particular countries. Thus the delegate may well have the view that a particular country is one which has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort said to be feared by the claimants. In such a case and in the absence of evidence advanced by the claimant, the delegate will be entitled to reject the contention that the claimant is unable or unwilling because of a well-founded fear of persecution for a convention reason, to avail himself or herself of the protection of that country. So in dealing with the case of a Sri Lankan national claiming to have suffered persecution in New Zealand, where he had permanent resident status, a Full Court held that it was not impermissible for a trial judge to advert to the responsibility New Zealand had as a signatory to the convention and to assume that it would honour its obligations thereunder - Rajendran v Minister for Immigration and Multicultural Affairs (unrep, Fed Court, Full Court No. 1085 of 1998; 4 October 1998). In other cases a delegate or the Tribunal might be apprised of information indicating that for persons of particular classes or circumstances the relevant protection was ordinarily not forthcoming from their state of nationality.
43 These can all fall under the broad proposition that there must be information or material available to the decision-maker from some source or sources on the issue of effective protection. In some cases the claimant may have to do little more than to show that it he or she falls within a particular class of person or possesses particular attributes to make out want of effective protection as a basis for a well-founded fear of persecution and inability or unwillingness to avail itself of the relevant protection. In other cases the claimant may face a very difficult task indeed.
44 In assessing the approach taken by the Tribunal to dealing with the issue of protection in the second state of nationality it is necessary to bear in mind what the Full Court said in relation to appeals against Administrative Appeals Tribunal decisions in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287:
"The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts…The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error….".
45 In this case his Honour observed that the Tribunal had held that in the case of country X, the country of A's first nationality "the government cannot provide her with the requisite level of protection". There was no such finding in the case of country Y. It was held to be unreasonable for A to relocate in Y and that she faced a real chance of persecution there. His Honour held that what was missing in the reasoning of the Tribunal was any finding of A's inability or unwillingness to avail herself of the protection of country Y.
46 As to this it is submitted for the appellants that there was no need for an express finding because the question of effectiveness of protection was nothing more than an aspect of the determination whether the appellant's fear of persecution was well-founded. The Tribunal had made this determination when, in summarising its findings at the end of its reasons for decision, it said:
"74. She faces a real chance of persecution in [Y]. For the reasons set out above it would not be reasonable for her to relocate in [Y]."
47 If contrary to those submissions the Tribunal ought to have made a finding about effectiveness of protection offered to the appellants by Y such a finding was said to be implicit in the Tribunal's reasons. And an implicit finding would be sufficient in the context of principles to be applied to administrative decision making. It was submitted for the appellants that the substantive determination of the Tribunal was clear from its reasons;, it took the view that A's fear of persecution in Y was well-founded because her husband had demonstrated a propensity to violence in order to convert her to his religion and that he and his associates who pursued her for the same reason had demonstrated an ability to track her down throughout Y and to continue to make threats of violence and harassment against her.
48 So it was said the Minister's contention concerning effective protection in Y in truth amounted to an attempt to revisit the merits of the case and to ask the Court to decide that the Tribunal should not have found Y to be a country that did not offer effective protection to one of its nationals. The determination whether nationality offered effective protection was a matter of fact for the Tribunal.
49 It was submitted for the Minister that the Tribunal was required but failed to make a finding in relation to whether A's nationality of Y provided her with effective protection for the purposes of Article 1A. In the absence of such a finding and in the absence of evidence to the contrary, the Tribunal erred in determining that she was a refugee.
50 The evidence before the Tribunal, which it accepted, involved A's attempted murder by her husband, his charging, trial, conviction and imprisonment for assault, the presence of his militant co-religionists in court during the trial, his threats directed at her from prison and threats to her neighbours who had to move. In addition, A was told by a government attorney that she could not be offered adequate protection. Her husband and his associates proved themselves able to trace her movements in Y.
51 In addressing the issue of A's well-founded fear of persecution in Y the Tribunal posed two questions for itself:
"2. Are the applicant's fears "well-founded" in [Y], or could they move to another area of region of [Y]?
3. Are these fears, even if well-founded are [sic] based on a Convention ground?"
52 The Tribunal noted that these issues, although conceptually separate, are in fact intertwined.
53 The Tribunal accepted that as a system Y did provide protection. It identified the issue for itself however as not whether the "system" as a generalisation provided such protection but whether for A the protection was adequate. In terms of relocation, the Tribunal referred to the limited and identifiable number of religious communities of the same denomination as A within Y and said that:
"Given the limited number of …communities, and the importance the applicant places on maintaining strong ties to that community, there seems to be a real chance that the husband or his associates would be able to track down the applicant within a fairly short time. Even were she to use a false identity, the community is not so large that the arrival of a single woman with two small boys, going to the local…school but unwilling or unable to account for her background would go unnoticed."
54 These findings of fact in relation to Y do not themselves form the basis for review of the Tribunal's decision. The question is whether the Tribunal has failed to address the issue whether the government of Y can provide her with the requisite level of protection. Reading the reasons as a totality, the factual conclusion that it cannot provide the requisite level of protection is implicit in them. It does not require explicit formulation. However surprising that finding of fact may be, and the Court acknowledges that the case presents unusual circumstances, that is not an issue into which the Court, within the scope of this review, which does not allow for retrial of the issues on the merits, can inquire.