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[1999] FCA 1085
Federal Court of Australia
1999-08-12
Moore J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for judicial review by Premendra Kandasamy ("the applicant") of a decision of the Refugee Review Tribunal of 29 March 1999. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs of 11 April 1998 refusing to grant the applicant (and members of his family) a protection visa under the Migration Act 1958 (Cth)("the Act"). The applicant and his family arrived in Australia in December 1997. The applicant is of Tamil ethnicity. He was born in Sri Lanka, was educated there and worked there for a period, though he is now a citizen of Denmark. While the precise circumstances in which he became a Danish citizen are not apparent from the Tribunal's reasons it is not a contentious factual issue. 2 The Tribunal proceeded on the basis that it could accept most of what the applicant had said concerning his experiences in Denmark. I will outline those experiences shortly. The principal issue before the Tribunal was whether the applicant was a person to whom Australia had protection obligations having regard to his experiences in Denmark and whether Denmark was able and willing to afford the applicant protection sufficient to establish that the applicant did not have a well-founded fear of persecution were he to return to that country. 3 The applicant's case before the Tribunal, as outlined in his counsel's submissions in these proceedings, was as follows. In 1986, following years of problems with the Liberation Tigers of Tamils Eelam ("LTTE") and the Sri Lankan authorities, the applicant travelled to Denmark where he was granted refugee status and ultimately Danish citizenship. He found there were LTTE militants and supporters in Denmark who extorted money from Tamils who lived there. Those who refused to pay were severely beaten and their relatives in Jaffna were threatened with abduction or death. The LTTE militants threatened to hurt or kill anyone who acted against their interests. The applicant paid money to the LTTE every month. After one of the applicant's Tamil flatmates lost his job, he refused to pay money to the LTTE. In response to threats from a LTTE militant, the flatmate threatened to report the militant to Danish authorities. The militant lost his temper, stabbed the flatmate in the stomach and told him that he would be murdered if he attempted to inform the authorities. The militant told the applicant that his family would suffer the same consequences if he ever testified against him. The flatmate obtained medical treatment but concealed how he had sustained the injuries. The day after the stabbing the applicant and his other Tamil flatmates were summoned to a meeting with senior LTTE leaders. They were told they would be killed if they attempted to let the LTTE down. After the meeting, the applicant was told his family members would be killed if he attempted to act against the LTTE's orders. The militant who stabbed the flatmate warned the applicant frequently to stay away from the authorities and not to have private discussions about the stabbing with anyone. 4 After the applicant lost his job he was forced by the militant to be his driver when he went to Tamil houses to collect money. The applicant was encouraged to join the LTTE. In July 1992, the applicant married in order not be dragged into LTTE activities. The militant seldom visited the applicant following the marriage. In 1993 the applicant completed a fork lift certificate course and obtained a heavy vehicle license. In 1995 the applicant started to drive buses and vans for private Tamil occasions. Knowing he had a heavy duty license, the LTTE militants forced him to transport people on the LTTE's "heroes day". Initially he refused but they assaulted and harassed him and he agreed to drive for them because he feared for his family. 5 Whenever the applicant refused to oblige the LTTE he received phone calls or letters from his parents stating that the LTTE militants were coming to their home and threatening them. He advised his parents to leave Sri Lanka permanently. They went to Canada where the LTTE extracted money from them. 6 In May 1997 LTTE militants ordered the applicant to transport Tamil youths from Germany to Denmark. When he refused he was assaulted in front of his wife and children. He was given time to reconsider his decision. He then told the militants he had lost his passport and could not travel. On 14 September 1997 four militants came and ransacked his home looking for his passport. The passport was with a friend. The applicant and his family were assaulted and the militants took the applicant's eldest child with him into their car. The applicant pleaded with them and his wife screamed. The militants said they would take the child forever, if the applicant refused to help them transport refugees from Germany. The applicant asked for time to apply for a new passport. He then arranged to come to Australia. He feared he would suffer the same treatment as his flatmate and was worried for his family. The LTTE had opened an office in Denmark with government approval and the applicant said that this was used as an excuse by them to do whatever they wanted. 7 In its decision the Tribunal indicated it was, in substance, prepared to accept what the applicant said. The Tribunal said: I am prepared to accept, for the purposes of this decision, that the applicant's essential claims in relation to Denmark are true in that he was asked for and paid monthly 'donations' to the LTTE of about fifty Australian dollars, and that he was harassed by and on occasion [sic] assaulted by members of the LTTE. I also accept his statement that he never complained to the authorities. I do not accept that this was because he didn't know how to complain or did not know what his rights were. I am prepared to accept that he did not complain because he was scared, and did not, as he told the Tribunal, want to be involved in any court cases. 8 Counsel for the applicant relied on two grounds of review identified in s 476 of the Act. First it was submitted that the reasons of the Tribunal disclosed an error of law of the type identified in s 476(1)(e). This submission was founded on the following passage in the Tribunal's decision. After indicating that Denmark was the relevant country for the purposes of considering the status of the applicant, the Tribunal said: … the essential issue is whether State protection is available. It is only if such is not available and effective that the issue of whether or not the applicant has a well-founded fear in relation to Denmark need be considered.
The ultimate conclusion of the Tribunal was in these terms: I find that the applicant's failure to seek state protection is not reasonable in all the circumstances. I find that there has been no failure of state protection in Denmark, and that if the state was asked for protection that such would be available and effective. I accept that the "essential issue" as postulated by the Tribunal separates, in a way that is not warranted, the issue of available and effective protection from the issue of whether there exists a well-founded fear of persecution. However counsel for the applicant accepted that if a conclusion was properly reached by the Tribunal that there was protection afforded by Denmark that was both available and effective then a conclusion was not open that there existed a well-founded fear of persecution in that country. What counsel for the applicant did submit, however, was that in reaching the ultimate conclusion in the second passage just quoted, the Tribunal did not, in substance, consider whether protection would be available and effective. I do not accept this submission. Not only did the Tribunal say there was available and effective protection, but it said so shortly after noting that it had put to the applicant independent evidence concerning whether effective state protection would be available in Denmark. At an earlier point in its reasons it summarised this material in the following passage: The Tribunal put to the applicant independent evidence relating to Denmark. In particular that no information could be found which indicates that the Danish government has failed to protect its citizens. The US State Department country report on Human Rights Practices for 1997, published 1998, states 'the government generally respects the rights human rights [sic] of its citizens, and the law and judiciary provide effective means of dealing with instances of individual abuse. The government effectively investigates and deals with cases of racially motivated violence'. While the Tribunal's consideration of the nature and extent of the protection likely to be afforded to the applicant were he to return to Denmark is brief, it does not manifest, in my opinion, any failure on the Tribunal's part to appreciate what is comprehended by the definition of refugee in the Convention. Its effective conclusion was that the applicant could not have a well-founded fear of persecution were he to return to Denmark having regard to the likely existence of available and effective protection.
The second ground of review relied upon by counsel for the applicant arises from the combined operation of s 476(1)(a) and s 430. Section 430 provided at the relevant time: (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence on any other material on which the findings of fact were based. The criticisms of counsel for the applicant of the Tribunal's reasons were threefold. First, the decision did not deal with the asserted fact of the applicant that his flatmate had been stabbed; secondly, it did not deal with the evidence concerning the LTTE's operations in Denmark generally (and elsewhere) and its modus operandi; and thirdly, it did not deal with the specific contention of the applicant concerning threats that had earlier been made to the applicant's parents and the applicant's apprehension that threats would be made to siblings of the applicant's wife. 9 I do not accept that the Tribunal did not deal with the concerns the applicant had about the earlier threats made to his parents and the possibility of threats being made to siblings of his wife. While it did so in a summary form the Tribunal indicated it accepted the applicant had been harassed by the LTTE and the threats to his parents were plainly a part of that process of harassment. 10 I do accept that the Tribunal did not expressly deal with the stabbing of the flatmate. The task it quite properly set itself was ascertaining whether, in the future, Denmark would provide protection to the applicant of a character that would deny the existence of a fear of persecution which was well-founded. The stabbing of the flatmate was never reported to the authorities nor, it appears, was the harassment of the flatmate that preceded it. It was not, for that reason, evidence of a past event from which the nature and effectiveness of the protection that might be afforded in the future could be measured in some comprehensive sense. However had the Tribunal expressly addressed this issue it may have found, as a matter of fact, that the flatmate had been stabbed. If so it was an incident of some significance in that it illustrated the type of serious harm to which a Tamil male in Denmark may be exposed if he did not co-operate fully with the LTTE. It may, of course, be that had the flatmate reported the harassment preceding the stabbing the Danish authorities may have been able to intervene and provide effective protection and prevented the stabbing by, for example, arresting the militant Tamil. Moreover even if the preferable view is that the Danish authorities could not have prevented the stabbing, it would not follow that the nature and extent of the protection provided by the Danish authorities was inadequate for Convention purposes: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 and Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672. The effectiveness of state protection was not addressed by the Tribunal in the context of a finding having been made of whether the stabbing had occurred. Whether it occurred was a material factual issue raised by the applicant that the Tribunal did not address. By not doing so it failed to comply with s 430(1)(c): see Voitenko v Minister for Immigration and Multicultural Affairs [1999] FCA 428. 11 As to the modus operandi of the LTTE more generally, I am satisfied that the Tribunal dealt with that sufficiently. Its only relevance was how it might impact upon the risk the applicant might be exposed to in Denmark and what protection the Danish authorities might provide having regard to that risk. The Tribunal's conclusion that the protection likely to be provided will be effective necessarily assumes an acceptance on the Tribunal's part that there was a risk. There is nothing in its reasons to suggest that it was not mindful of the material before it concerning the modus operandi of the LTTE and indeed refers to it in its decision. 12 The applicant has made out a ground of review and, accordingly, I set aside the decision of the Tribunal and remit the matter to the Tribunal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Solicitor for the Respondent: Australian Government Solicitor
Kandasamy
Minister for Immigration & Multicultural Affairs