Minister for Immigration & Multicultural Affairs v Tas

THE TRIBUNAL'S REASONS 6 The Tribunal stated its reasons relevantly to the following effect: 7 The respondent, a Turkish citizen, arrived in Australia on 1 April 1998. In July 1998, he applied for a protection (class AZ) visa, which application was refused by the Minister's delegate. The Tribunal was asked to review that decision. 8 In the course of explaining the Convention definition of "refugee", the Tribunal, referring to the reasons of McHugh J in Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379, said of "persecution" that it "must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality". 9 The Tribunal noted the respondent's claims and evidence to the following effect: 10 The respondent, who is thirty-six years old, was born in Turkey. His ethnic group is Alevi Kurdish. Before arriving in Australia, his country of residence was Germany, which had accepted him as a refugee. His current travel document is German, issued on 28 August 1992 and expressed to be valid until 27 August 1998. 11 The Tribunal noted that in his original statement in support of his application for a protection visa, the respondent stated: · He was afraid of being persecuted in Turkey because of his political opinion, race and religion. He gave details of his detention and torture by Turkish police on a number of occasions between 1987 and 1990. · Fearing arrest, he left Turkey for Greece in December 1990. He went from Greece to Germany, then to Sweden, where he was stopped on arrival and returned to Germany in March 1991, where he was granted refugee status. · Whilst in Germany, the applicant started (Turkish) political activities again "at a minimum level". He was "active with a range of groups: anti-fascists, green left, socialist, communist". · In 1994, he was harassed by fascists, receiving threatening phone calls. This continued. In 1997, the respondent was attacked by a group of men in a car park. 12 The Tribunal's reasons then proceeded (relevantly) as follows: · Reference is made to a letter dated 16 May 2000 from the German Consulate, Sydney, stating that the extension of the respondent's German Travel Document "is not possible" since it expired on 27 August 1998 and the respondent had left his "legal residency in Germany more than three months ago". · In answer to questions from the Tribunal, the respondent gave further details of the threats he had received in Germany and of the attack in 1997. · The Tribunal noted a body of "independent evidence" of racist attacks in Germany in the 1990s, including attacks by "skinheads" on Turks. · The Tribunal noted that according to the NGO named European Consultation on Refugees and Exile (ECRE), refugees in Germany "have nearly the same status as German citizens"; and that, under the German Aliens Act, persons granted political asylum cannot be refouled to their country of origin. · The Tribunal noted information from the U.S. State Department, and from Amnesty giving details of the arrest and torture of Kurds in Turkey. 13 The Tribunal went on to express its findings and reasons as follows: · The Tribunal found that the respondent was a Turkish national, and proceeded to assess his claims as against Turkey as his country of nationality. · The Tribunal then turned to the question whether the respondent had "effective protection" in Germany, and said: "Broadly speaking, Australia does not have protection obligations to a person who has been accorded effective protection in a third country: Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543. Effective protection in this context is protection which will effectively ensure there is not a breach of Article 33 of the Convention which prohibits the return of a refugee to the frontiers of territories where his or her life or freedom would be threatened for one of the five Convention reasons. For protection to be 'effective' it must be genuine protection: Al Anezi v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 283. If the return of an applicant to a third country would not expose Australia to a breach of Article 33 then Australia does not owe protection obligations to the applicant: Karthigesu Raajendran v Minister for Immigration & Multicultural Affairs (unreported, Federal Court, Mansfield J, 4 May 1998) at 14. In determining whether an applicant has effective protection in a third country relevant considerations will usually be: whether the applicant has the right to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to his or her country of nationality; and whether the applicant has a well-founded fear of persecution in the third country itself. The applicant has claimed that he faces serious harm or death in Germany at the hands of right-wing extremists, from which the German authorities cannot or will not protect him. If this is so, his right to freedom from arbitrary deprivation of life (ICCPR, Article 6) and protection against cruel, inhuman or degrading punishment or treatment (ICCPR, Article 7) may be jeopardised." 14 15 The Tribunal then said that, before considering the respondent's claims of a fear of persecution in Germany further, it would address the credibility of those claims. For the reasons it then gave, the Tribunal concluded that the respondent's claims of his experiences, both in Turkey and in Germany, were credible. The Tribunal went on to say: "The Tribunal also finds that the applicant is a Kurd, an Alevi and a left-wing activist from Turkey, who were ethnic, religious and political minorities who have been persecuted there for many years, on the strength of the above-cited independent evidence. The evidence from other sources cited above is consistent with his claims, with regard to the treatment of Kurds, Alevis and left-wing activists in Turkey. The Tribunal also accepts the applicant's claim that he experienced racial attacks, harassment and discrimination in Germany as they were plausible and sufficiently-detailed to be believable. His claims in this regard are moreover entirely consistent with the independent evidence cited above." · The Tribunal then returned to the issue of "effective protection in Germany" and said: "The Tribunal is satisfied that the applicant had the right to reside in, enter and re-enter Germany, on the strength of the above-cited evidence at pages 20 to 21, up until 27 August 1998, when his German Travel Document expired. He had the right to return and reside there, and was protected from refoulement to Turkey. However, the Tribunal accepts the above-cited letter form the German Consulate in Sydney dated 16 May 2000, since it is authoritative and there is no evidence to doubt its authenticity, which confirms that this Travel Document cannot be renewed. Therefore, the applicant does not have the right to return and reside in Germany and to be protected from refoulement. However, even if the Tribunal has arrived at the wrong conclusion as to the applicant's right to return to Germany, and the applicant does indeed have the right to return to and reside in Germany, it finds that a combination of factors leave him vulnerable to serious harm in Germany, at the hands of racist extremists. The evidence cited above suggests that state protection of foreigners in Germany has improved since the early 1990s. However, this protection from racial harassment is limited in nature, and there are still serious and violent racist acts in Germany directed against foreigners, refugees and asylum-seekers. The fact that such racist attacks have continued even during the past year suggests that, despite the willingness of the states in which they reside to give them some protection, such protection as is available has failed on certain occasions. Because of the applicant's Turkish nationality, his Kurdish ethnicity and his left-wing political opinions, and the particular threat this might pose for him, the Tribunal is not satisfied that he could be protected from serious harm in Germany. Therefore, the Tribunal finds that any return of the applicant to Germany would result in a breach of Article 33. With regard to the applicant's claims with regard to racial harassment and discrimination in Germany, the Tribunal finds that this treatment was sufficient intimidating and distressing to constitute persecution. The applicant's claims which have been accepted by this Tribunal and the independent evidence cited at pages 14 to 20 of this decision indicate that there is a real chance he will suffer persecution in Germany at the hands of extremists and racists, by reason of his Turkish and Kurdish ethnicity. There is evidence that the German state may be unable to protect him from this persecution. Therefore, the Tribunal finds that the applicant does not have effective protection in Germany. Therefore, the totality of the material before the Tribunal, including the applicant's evidence and the independent evidence referred to in this decision, leads the Tribunal to the conclusion that the harm the applicant fears in Germany is persecution for reasons of his race and political opinion. The Tribunal therefore finds that the applicant has a well-founded fear of persecution for a Convention reason." 16 The Tribunal next assessed the respondent's claims in relation to Turkey concluding that his fears of persecution for a Convention reason were well-founded. (There is no challenge in this proceeding to this aspect of the Tribunal's findings.)

CONCLUSIONS ON THE APPLICATION 17 It will be convenient to consider the issues arising on the several grounds of appeal in turn.

(a) Did the Tribunal give consideration to the issues involved in the "return to Germany" question in accordance with legal principle? 18 On behalf of the Minister, reliance is placed upon the decisions of Weinberg J in Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 and of Lehane J in Minister for Immigration and Multicultural Affairs v Ramalingam [1999] FCA 451, in support of a contention that in both those cases the Tribunal had stronger evidence about the consequences of an expired travel document, yet the Tribunal's decision was set aside because of a failure to address the correct question, and because findings were made that were not open. 19 In Gnanapiragasam, Weinberg J said (at 18): "While the material before the RRT demonstrates that the respondents have lost their rights to permanent residence in Germany, and are unlikely to regain those rights without being able to establish that, at the very least, there is suitable employment available to the first respondent, it does not follow that the 'effective protection' to which reference was made in Thiyagarajah including a right to reside in, enter and re-enter Germany is unavailable to them. Those who are admitted as temporary residents may also have rights which provide them with "effective protection" in a 'safe third country'. Some classes of temporary resident are permitted to find employment. Their rights to leave and re-enter Germany will be adjudged by European law: see D Jackson, at p 253. If upon further enquiry it emerges that the respondents are not eligible to re-enter Germany, albeit on a temporary basis, the RRT would no doubt proceed to consider their claims to refugee status under Art 1a(2). There seems little doubt that in such circumstances Art 1e would not exclude any finding which might be made as to refugee status. It cannot be assumed, however, that merely because the respondents are unlikely now to be accorded permanent resident status in Germany, they cannot therefore re-enter that country at all. They have a long established connection with that country and the fifth respondent was born there. Temporary residence status may not, in fact, be precluded, notwithstanding the somewhat uncertain terms in which the letters provided by the Consulate General in Melbourne are couched. Nor should it be assumed that the respondents would be denied the 'effective protection' of that country were they to be permitted to re-enter as temporary residents while their claim to refugee status was considered. It should not be assumed that Germany would do other than comply fully with its obligations under the Convention in this regard. The failure by the RRT to consider the possible application of Art 33 of the Convention as rendering it unnecessary for the delegate to have determined the respondents' claim to refugee status constitutes an error of law on its part. That makes it necessary to set aside its decision. The RRT is required to ascertain as clearly as it can whether or not the respondents would be permitted to re-enter Germany, at least on a temporary basis, thereby enabling their claim to refugee status to be considered by that country. Neither Thiyagarajah nor Rajendran should be taken as stipulating as a minimal basis for the applicability of Art 33 that a person who has been resident in a third country before coming to Australia must be shown to have a continuing right to reside there permanently in order for the third country to be able to accord that person 'effective protection'." 20 In Ramalingam, Lehane J said (at par 14): "In my view the Minister's submission must be accepted. The only apparent basis for the finding that the respondent had no right to return to Germany is the statement by a representative of the Consulate (in a letter on the Tribunal's file) that 'a German residence permit expires if its holder leaves the country on a permanent basis or leaves the country and does not return within six months'. It is true that the letter adds: 'In such a case there would be no eligibility to return to Germany'. But if the material before the Tribunal in Gnanapiragasam was 'uncertain', that before the Tribunal in this case was no less so. In any case, as Gnanapiragasam makes clear, the relevant question is not 'does the asylum seeker presently hold a visa permitting re-entry to a safe third country'? It is, rather, 'whether or not the [respondent] would be permitted to re-enter Germany, at least on a temporary basis …' (Gnanapiragasam at 22) and, if so, what protection will Germany accord him? The Tribunal did not consider those questions. Indeed, the terms of its findings strongly suggest that it was directing itself to Art 1E of the Convention, not Art 33." 21 (Art 1e of the Convention provides as follows: "E. This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.") 22 On behalf of the Minister, it is submitted that, in the present connection, the Tribunal did not ask itself the right question. It purported to make a finding that the respondent could not return to Germany without considering what, according to law, ought to have been considered, and thus there was legal error for the purposes of s 476(1)(e). 23 In order to consider the Minister's submission, it will be necessary to explain more fully the context in which the present question arises. As was pointed out for the respondent, the following material was before the Tribunal: (a) A copy of the respondent's German travel document No. 0566107 dated 28 August 1992. (b) A copy of a letter dated 8 July 1998 written to the German Consulate in Sydney by the respondent's solicitors as follows: "I act for Mr Tas in his application for permanent residence in Australia. Mr Tas was originally a citizen of Turkey: his status as a refugee under the Convention Relating to the Status of Refugees has been formally recognised by Germany. I enclose a copy of the marked pages only of Mr Tas's German Travel Document. I seek to know Mr Tas's status in German law. I understand that the conditions attached to such a German Visa issued in Germany may vary from case to case. In particular, would you please advise: 1. Whether Mr Tas has the rights and obligations which are attached to the possession of the nationality of the Federal Republic of Germany; 2. Whether Mr Tas's right to reside in Germany is limited in time, and if so, what that limit is; 3. Whether Mr Tas's right to re-enter Germany is different from the right of a German national to re-enter Germany, and if so, what that difference is. Thank you for your kind assistance. If you have any query please contact me." (c) A letter to the Tribunal from the respondent's solicitors dated 30 May 2000 stating - "I enclose a copy of a letter, the original of which will be available at the hearing, from the German consulate-general. This is in response to Mr Tas's recent inquiry on my advice concerning the validity of his German travel document." (d) A copy of the enclosed letter, being a letter to the respondent from the German Vice-Consul in Sydney dated 16 May 2000 as follows: "Re: Your German Travel Document No. 0566107 I have to inform you that the extension of validity of the a.m. German Travel Document is not possible. As the validity of your German Travel Document expired on 27 August 1998 and as you have left your legal residency in Germany more than three months ago, the issuance of a new Travel Document will be the responsibility of the Australian authorities. A certified copy of the relevant pages of the Travel Document is attached to this letter. The original will be returned to the German authority that issued them." (e) The following "country information": · An extract from a Handbook for Agencies Assisting Refugees entitled "Asylum in Europe" (1983) stating, in respect of the German Federal Republic - "V STATUS OF ASYLEES AND REFUGEES General description Recognized refugees are entitled to all of the benefits provided for by the 1951 Convention; in fact, they enjoy more rights than the minimum standards set by the Convention and have nearly the same status as German citizens. Residence rights, identity and travel documents During the first two years after recognition, the refugee is obliged to reside in the Land to which he has been assigned. The local Ausländerbehörde issue an Aufenthaltserlaubnis (residence permit) of unlimited validity. However, quota refugees receive an Aufenthaltserlaubnis with a validity of limited duration which is extended regularly. Recognized refugees are given a Convention Travel Document by the local Ausländerbehörde. Protection of residence rights Only in exceptional cases can recognized refugees be expelled from Germany, in particular if there are serious reasons to believe that they constitute a danger to public order and national security. Refugees whose status has been recognized in another country before moving to Germany, may be expelled and will normally be deported to their country of first asylum." · A report dated 16 February 1994 from the Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa, Canada, entitled Germany: Information on whether a person with refugee status in Germany would lose the right to return to Germany by making a claim in Canada (RD 298). The report notes: "A representative of the Canadian Embassy in Bonn corroborated the information on the right of a recognized refugee to return to Germany if his travel documents are still valid …. The representative further indicated that in cases where the travel documents have expired, the individual wishing to return to Germany would have to approach the German authorities for an extention [sic] …. She further states that: if a person is outside Germany and either the residency visa or the travel document expires during that time, then the person no longer has the right to return to Germany as it is assumed that they have taken up residency elsewhere and effectively loses their refugee status in Germany." 24 On behalf of the respondent, it is submitted that Gnanapiragasam is distinguishable here because the failure of the Tribunal there was its failure to consider the "logically anterior" question of whether the applicants had already obtained the effective protection of Germany and were therefore precluded from applying for asylum in Australia under Art 33; that is, the argument runs, the Tribunal there failed to ascertain (as Weinberg J held (at 18 cited above) whether or not those applicants would be permitted to re-enter Germany, at least on a temporary basis, thereby enabling their refugee claim to be considered by Germany. 25 It is then submitted for the respondent that the Tribunal addressed the relevant issue in the correct manner. It commenced with an accurate statement of the law relating to the "logically anterior" issue of effective protection and, after upholding the respondent's claims as credible, passed on to decide whether there was effective protection. The Tribunal's finding, the argument runs, that the respondent did not have the right to return and reside in Germany and to be protected from refoulement was a finding of fact open to the Tribunal on the above evidence. When the Tribunal said, in the passage cited above, that the respondent "does not have the right to return and reside in Germany", the Tribunal did not, the respondent submits, mean to refer only to permanent residence. 26 I have difficulty accepting the respondent's argument here. 27 In Gnanapiragasam, after the passage (at 18) set out above, Weinberg J went on to say (at 18 - 19): "It seems to me that a right to re-enter, albeit temporarily, the country in which the claimant has previously lived, together with the right, while proper consideration is given to any claim for refugee status, to leave and re-enter that country thereafter, renders Art 33 potentially applicable. Australia can then require the claimant to return to that 'safe third country' without the need first to consider his possible refugee status under Art 1A(2). The right to reside temporarily is capable, in any given case, of meeting the "effective protection" criterion no less than the right to resume permanent residence. That is not to say that a right to return to temporary residence will, of itself, be sufficient in any given case. Article 33 requires that there be 'effective protection' in the third country. Australia must be satisfied that the third country will consider any claim to refugee status in accordance with the Convention, and will not simply refuse entry and, without giving the claim any such consideration, return the claimant to the country from which he came originally. These are all matters which must be addressed with care. They cannot be ignored, or passed over, on the basis of such uncertain material as was before the RRT in this case." 28 I respectfully agree. 29 Moreover, in my opinion, these observations and those of Lehane J (see above) in Ramalingam are directly in point in the present case. As has been seen, the Tribunal limited the scope of its inquiry to the narrow question of interpretation of the Vice-Consul's letter, which, in substance, dealt only with the currency of the expired 1992 travel document. Yet, as a matter of legal principle, a broader inquiry, of the kind indicated in Gnanapiragasam and in Ramalingam was called for. In short, the relevant inquiry was the current status of the respondent in Germany, as a refugee, not merely as a traveller seeking entry for any purpose. 30 The Tribunal erred in law accordingly. 31 However, I turn next to the second issue. (b) Did the Tribunal consider the "level of protection offered by Germany" question in accordance with legal principle? 32 On behalf of the Minister, it is submitted that the level of protection contemplated by the Convention is not in the nature of a guarantee; so that, the argument goes, it was not enough for the respondent to show that the system might have "failed on certain occasions"; rather the question was whether real efforts are made to enforce the criminal law to punish and deter like crimes in the future. 33 In Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95, a Tamil refugee from Sri Lanka was granted refugee status in France, and lived there becoming a French national. He later entered Australia on a visitor's visa and sought refugee status here on the basis of his claim that France was incapable of protecting him. In support of his claim, he gave evidence of an assault on him by members of a rival Tamil group and of his fear that police action would cause a reprisal from the rival group. 34 Lindgren J (with the agreement of Burchett and Whitlam JJ) said (at 106): "The Tribunal did have before it evidence which it was entitled to accept and did accept as to the protection available to Mr Prathapan in France. I referred to some of that evidence earlier. It included evidence that in France '[t]he law enforcement and internal security apparatus … are under effective civilian control', that the French Government 'fully respected the human rights of its citizens, and the law and the judiciary provide effective means of dealing with individual instances of abuse', and that '[French] [s]tatutes ban discrimination based on race, religion, sex, ethnic background, or political opinion, and the Government effectively enforces them'. It is not countervailing evidence to show that the authorities cannot guarantee immunity from persecution and reprisals. The material on which Mr Prathapan relied did not even begin to suggest that level of ineffectuality of state protection that would allow or give rise to a real chance that he would be persecuted by the LTTE regardless of his resorting to the French authorities. Accordingly, the Tribunal was entitled to reach the conclusion which it did reach on this issue." 35 Earlier, Lindgren J had said (at 104 - 105): "We should follow the Full Court in Thiyagarajah for what it decided on the present issue, unless we thought it plainly wrong: cf Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Qantas Airways Limited v Cornwall (1998) 84 FCR 483 at 489 - 490; and other authorities referred to in Bank of Western Australia v Commissioner of Taxation (1994) 55 FCR 233 at 255. First, the Full Court implicitly decided that the test under the Convention definition was not whether there was a well-founded fear that the country of nationality was unable to 'guarantee' protection against persecution. Secondly, it also held that the Tribunal had been entitled to make the factual finding that a fear by Mr Thiyagarajah that there was a real chance that the French authorities would not extend to him 'the degree of protection which would be extended to French nationals and would not provide a level of protection sufficient to remove a real chance of persecution in France by the LTTE' was not well-founded. Thirdly, it referred, with apparent approval, to the passage from Ward set out in the passage from the judgment of von Doussa J appearing above. For my part, far from being of the opinion that the Full Court was plainly wrong in the first of these respects, with respect I think that it correctly stated the law. Moreover, in the second and third respects, what was said is persuasive as to the general approach this Court should take in the present case. Contrary to the submission of counsel for Mr Prathapan, I do not think the approach of the Full Court in Thivagarajah irrelevant, on the basis that, unlike Mr Prathapan, Mr Thivagarajah had not been granted French nationality. The reasoning of von Doussa J does not depend in any way on the distinction and his Honour's reasoning applies to Mr Prathapan as a French national a fortiori." 36 The passage from Ward is the following (per L A Forest J delivering the judgment of the Supreme Court of Canada in Re Attorney-General (Canada) & Ward (1993) 103 DLR 1 (4th) at 23): "The issue that arises, then, is how, in a practical sense, a claimant makes proof of a State's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the State authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a State's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the State protection arrangement or the claimant's testimony of past personal incidents in which State protection did not materialise. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus, such as that recognised in Lebanon in Zalzali [Zalzali v Canada (Minister of Employment and Immigration) [1991] 3 FC 605], it should be assumed that the State is capable of protecting a claimant." 37 As counsel for the Minister noted, the requisite standard of protection in the Convention context has recently been considered by the House of Lords in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379. There, a Roma citizen of Slovakia claimed asylum in the United Kingdom on the ground that he feared persecution in Slovakia by "skinheads", claiming that the Slovak police failed to provide adequate protection for Roma. The Immigration Appeal Tribunal found that there was an increasing level of police intervention and prosecutions in respect of attacks on Court in Slovakia, so that the oppressive behaviour which the applicant feared could not be said to amount to "persecution" within the Convention. In dismissing an appeal by the applicant, the House held that, when determining whether there is sufficient protection against persecution in the person's country of origin, it is sufficient that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies. 38 Lord Hope (with the agreement of Lords Browne-Wilkinson and Hobhouse said (at 384): "Fortunately the situation in Slovakia is not such as to give rise to the problems which may arise in other jurisdictions where there is no effective state authority or the state authority is unable to provide protection. The present case is relatively straightforward. The institutions of government are effective and operating in the Republic of Slovakia. The state provides protection to its nationals by respecting the rule of law and it enforces its authority through the provision of a police force. But, as the Immigration Appeal Tribunal said in its judgment, there is racial violence against the Roma perpetrated by skinheads. The police do not conduct proper investigation in all cases and there have been cases where their investigation has been very slow. But there was also evidence that the police have intervened to provide protection when they have been asked to do so and that stiff sentences are imposed at times for crimes that are racially motivated. The tribunal's conclusion was that the violent attacks on Roma are isolated and random attacks by thugs." 39 Lord Hope had earlier said (at 382): "The following issues arise in the determination of the question raised by the problem that the parties have identified in regard to the allegation of persecution by non-state agents: (1) does the word 'persecution' denote merely sufficiently severe ill-treatment, or does it denote sufficiently severe ill-treatment against which the state fails to afford protection? (2) is a person 'unwilling to avail himself of the protection' of the country of his nationality where is he unwilling to do so because of his fear of persecution by non-state agents despite the state's protection against those agents' activities, or must his fear be a fear of being persecuted there for availing himself of the state's protection? (3) what is the test for determining whether there is sufficient protection against persecution in the person's country of origin - is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear?" 40 In addressing the third issue, Lord Hope said (at 388): "… the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward L.J. said [2000] I.N.L.R. 15, 44g, under reference to Professor Hathaway's observation in his book, at p. 105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. I consider that the Immigration Appeal Tribunal in this case applied the right standard when they were considering the evidence." 41 Lord Lloyd said (at 394): "On the findings of the Immigration Appeal Tribunal, we can infer that the authorities in Slovakia are able and willing to provide protection to the required standard, and that gypsies, as a class, are not exempt from that protection. This finding is not, of course, in any way inconsistent with the finding that the applicants had a well-founded fear of persecution. As Stuart-Smith L.J. pointed out, there are parts of London or New York where one may indeed have a well-founded fear of being attacked in the street. But that does not mean that there is not an efficient police force and an impartial judiciary." 42 Lord Clyde said (at 398): "It seems to me that the formulation presented by Stuart-Smith L.J. in the Court of Appeal may well serve as a useful description of what is intended, where he said [2000] I.N.L.R. 15, 26, para. 22: 'In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders.' And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. 'It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy.' The formulation does not claim to be exhaustive or comprehensive, but it seems to me to give helpful guidance." 43 The question here is whether the Tribunal applied the right standard when considering the evidence. In order to consider this question, it will be necessary to refer to the Tribunal's approach in this area. 44 The Tribunal first referred to the following statements by the respondent in his original application: "71. In Germany, we made contact with people from the TKP-13, and started our political activities again at a minimal level. We didn't have a party branch there but one of the first things we did there, was to contact the other anti-fascist people in the environment, and continue the struggle. And so one becomes known in one's environment. 72. Over the years, I together with political colleagues, got in political activities in the communist party in Germany. I was sympathetic and active with a range of groups: anti-fascists, green left, socialist, communist. My main activism was in writing and publicity campaigns involving social, cultural political activities: marches, protests, meetings, seminars. 73. I have written many articles which were published in Turkish language publications; and some of them in translation in German language publications. 74. I have also written two books of poetry, both of them on a social justice, human rights, humanitarian kind of theme. 75. The reason I left Germany is that I was facing all sorts of harassment from fascists. 76. For example, in 1994, things on the balcony of our flat were getting broken and disappearing. Then we started to keep it empty. Then one day we found a pamphlet there, from a fascist party; and they started to leave threatening notes. 77. We took the notes to the police, but they were no help. They said the wind probably blew them: that was their help. 78. Then we started to receive threatening phone calls. 'Oh you're still alive? Don't forget what happened to those who acted against us previously'. Or when I was out, and they contacted my wife, they would tell her not to expect me back today. 79. We went to the police, but they said we need to give them names. Of course we couldn't give them names, they were anonymous threatening phone calls. 80. We started avoiding our home, and staying for four or five days at a time with friends." 45 The Tribunal noted that after mentioning a visit to Australia in 1994, the respondent's statement continued: "82. We decided to go back to Germany, because we had made a start there, and we were sick of starting from the beginning again, learning a new language, and going through the anxiety of the process again, having to tell all about the torture and remember it again. 83. But when we went back, it got worse not better, and the neo-Nazis burnt a family to death, which made us fearful and angry. When that happened, I organised a protest against it. From being active in organising the protest, I came to the notice of the fascists again, and the telephone and posted threats started again. The cycle started again, and we went staying with friends again. 84. In about January 1997 I was coming from shopping, in the evening. I parked my car in the carpark and went into my flat. On the way, five or six men attacked me, and they were telling me that today they will finish me. And I am sure they would have, but I was lucky there was a group of Russian men trying to fix a car, and when they heard the disturbance, they shouted and came over, threatening the fascists. Thanks to them I am still here today. 85. We called the police, but they always ask for names, and won't take action without it; and I don't know names because obviously they weren't going to introduce themselves: they were trying to kill me, so the police made no sense or difference. 86. I decided to cut down on my political activities, and just kept up my cultural activities, most of which still involved the left wing. 87. But even that didn't stop them. In February 1998, I was out with a group of friends of mine, all leftists, at a cafe celebrating my birthday, when a group of Bozkurts, or Grey Wolves, came in and started attacking us. The Grey Wolves are Turkish fascists: their motto is if you are born in Turkey, you are a Turk and a Muslim': nationalist and religious chauvinists. They hit us with chairs, sticks, anything handy, and bashed us all up. 88. When the police came, it was the same old story: what were their names? We said we didn't know, and their protection came to nothing. 89. Then I started to feel psychologically bad. At least when I had been active in the party, there were people I could go to and share the burden with; but now I had cut these relationships, there was no-one; because you don't feel secure, you fear for your life. These incidents are just examples, but every day you experience verbal and non-verbal threats." 46 The Tribunal went on to describe the respondent's oral evidence to it at the Tribunal hearing as follows: "When asked when the harassment from the fascists started in Germany, he [the respondent] stated: 'They have a party called FAP, and we started getting some threats from them in 1994. I think it was middle of summer.' When asked to describe the content of the threatening notes he received, he stated: 'You have no right to live in Germany. Leave our country.' The applicant stated that the threatening telephone calls began at the end of 1994. When asked how many such calls he received, he stated: 'I think it was more than 10.' The incident involving the family who were burned to death by neo-Nazis occurred in Solingen in 1995, according to the applicant, and their nationality was Turkish. When asked when the telephone and postal threats started again, he stated: 'In 1997, I was physically attacked.' When asked how many such postal threats he received, he stated: 'Two, three times, which had a FAP stamp on it.' When asked, he confirmed that this was the fascist party he had previously referred to. When asked who were the five or six men who attacked him around January 1997, the applicant stated: 'Germans. People I didn't know.' When asked why they attacked him, he stated: 'They were saying things like: 'You went overboard. This is our country. You can't control us.'' He stated that the incident occurred at night when he was alone, after he parked his car after returning to his residence. A group of Russians intervened, in default of which the applicant would have sustained much more serious injuries. When asked if his wife had encountered any problems in Germany since April 1998, when he left for Australia, he replied: 'In the last year there hasn't been any incident, that she told me about.'" 47 As mentioned above, the Tribunal then explained the "independent evidence" before it dealing with "Racist Attacks Against Foreigners, Refugees and Asylum-Seekers in Germany". The Tribunal said: "In 1991 there was a dramatic increase in racial violence in the newly unified Germany, from 270 in 1990 to 1,483 right-wing offences in 1991. Attacks took place all over the country, unabated and uncontrolled. The attackers acted almost with impunity. In western Germany the residences of foreign workers of long standing also faced attack. The high number of attacks carried out by right-wing extremists in Germany during 1991 rose during 1992, from a total of 1,483 to a new high of 2,584, an increase of 74 per cent. Foreigners were killed, mosques set ablaze, attacks were carried out against foreigners and houses firebombed. Turks were particular targets of these attacks. Although the police did intervene in some of these situations, there have been strongly supported claims that the local police and fire brigades did not act effectively enough. All of this took place in the context of the re-emergence of nationalism and xenophobia as the dominant ideologies in Germany (Panikos, Panayi, Racial Violence in the New Germany 1990-93 (1994) 3/3 Contemporary European History pp. 265-287; see also Nora Rathzel, Germany: one race, one nation?, (1991) 32/3 Race & Class pp. 31-48). Indeed, although the German Criminal Code prohibits incitement to violence, there are no laws in Germany prohibiting acts of discrimination in public places or in the fields of employment or housing (Mel Read and Alan Simpson, Against a Rising Tide [:] Racism, Europe and 1992 (1991), Spokesman for Nottingham Racial Equality Council and European Labour Forum, Nottingham UK), a situation which has fostered this nationalism and xenophobia. In 1993 a fire-bomb attack in Solingen killed five Turks, and came shortly after the Bundestag abolished the automatic right of refugees to asylum in Germany. (Roger Eatwell, Why are Fascism and Racism Reviving in Western Europe? (1994) 65/3 The Political Quarterly pp. 313-325, at p. 322)." 48 The Tribunal noted that: "With regard to the availability of protection in practice to the victims of racist violence, some previously mentioned documents cite instances where police failed to protect individuals from attacks or where police support was inadequate. In three instances in 1992 police were criticised for their conduct in dealing with violence against refugees. One incident occurred in Rostock in August 1992 where a refugee hostel was burned down. It was reported that the police 'withdrew from the scene at a crucial moment during which time, the refugee hostel was burned down' (Documentation, Information and Research Branch (DIRB), Immigration and Refugee Board of Canada response DEU17088.E 15 April 1994). DIRB cites a 1993 report from the Lawyers Committee for Human Rights which refers to 'overall hesitance in the government's response to racially motivated crimes, and insufficient police protection of known targets of racist violence' (DIRB response DEU16454.E 3 February 1993). The same report noted that, in a move to counter right-wing extremists' activities, the government reinforced police forces in eastern Germany, banned a number of neo-Nazi groups and prosecuted extremists involved in attacks against foreigners. As a result of one arson attack in 1993 and subsequent 'copy-cat' attacks on refugee and refugee centres, additional security measures to protect them were put in place. The authorities augmented police protection in refugee homes and developed after-school programs for troubled youths (U.S. State Department Country Reports on Human Rights Practices for 1993)." 49 After referring to several instances of xenophobic crimes between 1990 and 1995, the Tribunal noted evidence from a report by the U.S. Department of State that - "The number of antiforeigner crimes continued to decline, decreasing 25.6 percent in the first 10 months of the year, compared with the same period in 1998. However, skinhead attacks on foreigners increased in the eastern part of the country during the year. Also, in March the Government announced that rightwing extremism was on the rise and reaching more persons through the use of the Internet and skinhead rock groups whose songs have racist lyrics. There were a total of 1,193 xenophobic crimes reported in the first 10 months of the year, compared with 1,498 such crimes during the same period in 1998. Of these, 256 were violent attacks, including 231 cases of attacks on persons and 25 cases of arson. Among the total number of xenophobic crimes reported were 278 cases of the distribution of materials or the display of symbols of banned organizations. The percentage of such crimes was significantly higher in the eastern states. As in previous years, most of these offences were directed against foreign residents. Perpetrators of antiforeigner violence were predominantly young, male, and low in socioeconomic status; they often committed such acts spontaneously and while inebriated. Some offenders were rightwing extremists, such as neo-Nazis and 'skinheads'. However, many could best be described as rightwing-oriented, having loose, if any, practical or ideological ties to extremist groups. Other perpetrators were apolitical." 50 The Tribunal said: "Clearly then, the high point of racist attacks in Germany was in the early 1990s. Since that time the German authorities have reacted to a certain extent to the violence and taken some measures to combat it (The European Commission Against Racism and Intolerance (ECRI), 1998, Report on Germany, http://www.ecri.coe.int/en 02/02/01/e02020101.htm). Nevertheless, racist attacks still occur in Germany, as have been abundantly documented in this section of the decision. Over the past year there have been a number of violent racist attacks directed against foreigners, refugees and asylum-seekers in Germany, accompanied by a growing resurgence of neo-fascist organisations." 51 The Tribunal then gave details. 52 It will be recalled that, in expressing its findings and reasons, the Tribunal stated - (a) that the evidence suggests that protection "has improved since the early 1990s"; (b) that this protection is "limited in nature, and there are still serious and violent racist acts in Germany directed against foreigners, refugees and asylum-seekers"; (c) that this "suggests that, despite the willingness of the [German] states … to give some protection, such protection as is available has failed on certain occasions"; (d) that the Tribunal was "not satisfied that [the applicant] could be protected from serious harm in Germany". 53 It will further be recalled that the Tribunal went on to find that "[t]here is evidence that the German state may be unable [emphasis added] to protect [the applicant] from … persecution [in the form of the 'racial harassment and discrimination' found by the Tribunal]". 54 On behalf of the Minister, it is submitted that there was evidence before the Tribunal of real efforts made on behalf of the German authorities to address the level of crime; and that whilst those efforts may not have eradicated the problem, so that the respondent could not be guaranteed protection, this standard is not required by the Convention. There was, the submission goes, no inquiry by the Tribunal into the question whether there had been a sustained or systemic failure of state protection; nor into the question whether the claimed lack of protection was such as to indicate that the State (Germany) was unable or unwilling to discharge its duty to establish and operate a system for protection against persecution. 55 In my opinion, there is considerable force in the submission. When the Tribunal's reasons in this area are read as a whole, it appears that the Tribunal did adopt too high a standard in its approach; and that, in truth, the Tribunal was addressing the question whether the German authorities could guarantee an adequate level of protection. Yet, as Lord Clyde observed in Horvath, the real question is whether there is a reasonable willingness on the part of the law enforcement agencies and the courts to detect, prosecute and punish offenders. 56 The Tribunal erred in law in this respect. 57 I propose to grant the relief sought by the Minister. I make the following orders.

ORDERS

1. That the Tribunal's decision be set aside.
2. That the matter be remitted to the Tribunal to be determined according to law.
3. Costs reserved.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Counsel for the Applicant: A Robertson SC, S Lloyd

Solicitor for the Applicant: Australian Government Solicitor