SRL v Minister for Immigration & Multicultural Affairs

Background 5 The applicant is a citizen of Sri Lanka, of Singhalese ethnicity, who arrived in Australia in 1997. The facts as set out below are based on the oral and written evidence given by the applicant before the Tribunal. The applicant was born and educated in Sri Lanka and earned his living in the business world. He and his wife and their families have always been strong supporters of the United National Party (UNP). At various stages the applicant was actively involved in campaigning for this party, specifically during the presidential elections in 1983 and 1994. Because of his work for the UNP in a number of electorates, the applicant became known as a supporter of that party. In the period leading up to the 1994 election the applicant began receiving threatening phone calls. In August 1994, he was assaulted in circumstances that suggested that the assault was related to his connection with the UNP. The applicant recognised one of his assailants as a prominent member of the People's Alliance (PA), a rival political party to the UNP. The applicant complained to the police about this assault but was told that they could not record his statement, as there was no evidence. 6 The applicant continued to receive threatening phone calls after the 1994 election. The phone calls generally contained threats that the applicant should not be involved in political activities and should be more careful in the future. In 1997, the applicant and other prominent supporters of the UNP were attacked and abused by four men while they were putting up political posters. The applicant was slapped and punched on the face and began bleeding from the lips and nose. He again recognised his attackers as associates of the PA and reported the incident to the local police station. The duty officer initially did not accept his statement saying that he was reluctant to accept a complaint against members of the government. Eventually the police took the statement and gave him a note requesting the hospital to treat his injuries. 7 After this incident the applicant and his family stayed in his parent's house for a few weeks and returned home in the first week of April. He then began to receive more anonymous and threatening phone calls and was told that he should leave his house as soon as possible. The UNP politician for whom he had worked advised him that he should leave the country. For this reason he applied for an Australian visa for himself and his family. The visa was issued on 15 April 1997. The family's departure from the country was delayed because the applicant's wife and two children contracted chicken pox. On the evening of 23 April 1997, five people, two of whom were recognised by the applicant, came to the applicant's apartment and told him to leave as soon as possible. On 27 April 1997, four people again came to the apartment, and warned the applicant saying that he should vacate the apartment before 30 April 1997. One of the intruders pointed a pistol at his forehead. The applicant's wife, in her statutory declaration, confirmed this account and added that one of the men had started to drag her to towards the bedroom and that she feared that he intended to rape her. In order to convince the men to leave, she promised that she would get her husband to give up his political activities and that they would find somewhere else to live. The intruders threatened that if she did not do what she had promised, they would return and carry out their threats to rape her and kill her and the children. During the next few weeks the applicant and his mother were subjected to abusive and violent telephone calls and threats that he and his family would be killed. He obtained tickets for a flight to Australia and left the country on 10 May 1997.

The TRIBUNAL's decision 8 The applicant and his wife gave oral evidence to the Tribunal on 14 September and 30 November 1999. The applicant claimed that he feared that, he would be threatened by both sides of politics if he returned to Sri Lanka. He believed that members of the PA would persecute him even if he were politically inactive and that his former colleagues in the UNP would not allow him to remain inactive. The Tribunal also considered written submissions made by the applicant's legal representative both before and after the hearings, the material in the department's file, including the application for a protection visa and written submissions made in support of that application, and independent evidence concerning the political situation in Sri Lanka.

Independent evidence 9 The Tribunal considered independent evidence about the political situation in Sri Lanka from a number of different sources including a report from the US Department of State and advice from the Australian Department of Foreign Affairs and Trade. This evidence was to the effect that: · Sri Lanka is a democratic republic with a popularly elected president and 225 member parliament who were elected in free and fair elections in 1994; · the UNP and the Sri Lanka Freedom Party (SLFP) have alternated in power since Sri Lanka won independence in 1948. The 1994 election was won by the PA which comprised of the SLFP and a number of smaller parties. Outbreaks of political violence were feared in the aftermath of the 1994, election but almost no such incidents occurred; · President Chandrika Kumaratunga, the leader of the PA, has campaigned strongly against links with organised crime and against political violence; · since 1994, political violence has decreased. There has been no cases of the PA government or its local officials framing UNP supporters on criminal charges, security breaches or thuggery; · in the early stages after the 1994 election, the police force was widely perceived to be pro-UNP; · politics in Sri Lanka particularly at the local government level can be very vigorous and political violence crosses political boundaries. Political violence typically occurs around election time mainly in the lead up to voting. Supporters of both the PA and the UNP have been detained and questioned about acts of violence; · in local government and provincial council elections since 1994, occasional incidents of violence continue to occur, usually taking place between groups putting up posters, banners and other political paraphernalia and at large political rallies. However, claims of political harassment of UNP members and supporters should be viewed with scepticism; and · the expectation that the police force should support the government of the day appears to be part of political culture in Sri Lanka. It is arguable that police are sometimes reluctant to act a way that may upset the government of the day, because they are afraid that they may be punished by being transferred to serve in a conflict area.

Applicant's credibility 10 The Tribunal found the applicant to be "on the whole" credible although it commented that the applicant may have exaggerated the extent of the harm that he suffered in Sri Lanka in some instances. The Tribunal also found the claims and evidence of the applicant's wife to be credible. The Tribunal accepted "that the applicant was subjected to threatening telephone calls, two assaults and some intimidation at his home and against his family by particular individuals in the PA". However, the Tribunal found that the applicant's claim that individuals from the PA were "always after him" was exaggerated given that his involvement with the UNP had been sporadic, relatively minor and in a voluntary capacity. 11 The Tribunal stated that it gave no weight whatsoever to the claim that the applicant feared harm from members of his own political party. According to the Tribunal, this claim was first made in a submission to the Tribunal by the applicant's legal representative on 10 September 1999. The Tribunal did not attach any weight to this claim because it was raised so late in the refugee determination process and because it was contrary to the applicant's claim that he had been treated in a benign and positive way by the UNP.

State Protection 12 The applicant claimed that, were he to return to Sri Lanka, the authorities would be unable or unwilling to provide him with effective protection against persecution. In considering this claim, the Tribunal recognised that the "availability of protection in the country of 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". The Tribunal cited A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 in support of this proposition. 13 The Tribunal attached some importance to the fact that, in its words: "…although the applicant took some initial steps to seek the protection of the police against the claimed harm, he did not pursue those complaints he file [sic], and in other occasions although he faced harmful treatment did not approach the authorities for protection at all - such [as] in the threatening telephone calls in 1994 or the threats against him and his wife in April 1997." 14 The Tribunal clearly did not attach much weight to the applicant's explanation, which was that he did not believe that the police would help him. The Tribunal referred to the independent evidence: "which suggests that none of the reports of political violence allege that the Government itself is supportive of, or even turning a blind eye to, violent actions by PA members or supporters against UNP members and that all parties had equal access to the law and to police protection" [emphasis in original] 15 The Tribunal noted that the PA did not hinder the applicant in conducting his business or from travelling in and out of Sri Lanka. This suggested to the Tribunal that there was no official disapprobation of the applicant by the PA government as an entity. In support of its conclusion the Tribunal pointed out that the applicant's own claims which were to the effect that he fears particular individuals from within the PA as opposed to the PA as the governing party. 16 Although the Tribunal accepted that the applicant may have undergone harmful treatment in Sri Lanka in the past, it concluded that he would have access to effective state protection were he to return to Sri Lanka. On the basis of the independent evidence referred to above, the Tribunal was satisfied that the applicant could seek police protection and that the necessary protection would be forthcoming.

Consideration 17 At the hearing, Mr Karp, counsel for the applicant, stated that he was not pressing any of the grounds in the applicant's amended application other than that the contention that the Tribunal erred in law in reaching the conclusion that the applicant would have effective state protection in Sri Lanka. Mr Karp submitted that, in considering whether the applicant had access to effective state protection, the Tribunal incorrectly applied of the law to the facts as it found them to exist and that this was an error of law under s 476(1)(e) of the Act. 18 Mr Karp submitted that determining whether effective State protection is available requires consideration of the individual circumstances of the applicant and requires the Tribunal to address three questions: (a) What level of protection is sufficient? (b) What should the applicant have to do to access that protection? (c) In what circumstances should the applicant be required to seek the assistance of the authorities? 19 According to Mr Karp, the Tribunal's failure to address these questions amounted to an error of law. He referred the Court to a number of cases where the issues raised by one or other of the above questions were discussed. These cases included A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at 556-557; Re Attorney-General of Canada and Ward (1993) 103 DLR (4th) 1 and Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95. These cases variously dealt with the issue of effective State protection and the question of whether there was a "real chance" of the relevant State being able or willing to provide effective protection. In doing so they discussed aspects of the issues raised by Mr Karp's three questions. Ultimately, however, the test is whether the applicant is unable or, because of his well-founded fear, is unwilling to avail himself of the protection of the Sri Lankan authorities. Although breaking the test down into 3 separate questions may assist in the analysis, one must not replace the Convention definition of "refugee"; see Guo v Minister for Immigration and Multicultural Affairs (1997) 191 CLR 559 at 572 where the High Court made a similar point concerning the definition requirement that a fear of persecution must be "well-founded". As long as the Tribunal addresses itself to the elements of the Convention definition and applies the principles of law which the Courts have developed in relation to those elements, there can be no error of law in not adopting a particular analytic tool even if it would have been helpful to do so. 20 Mr Karp referred to the evidence concerning the various incidents in which the applicant had been harassed. He claimed that the Tribunal, rather than accept that these incidents evidenced a failure of State protection found that the applicant should have sought to take the matter further by himself. In my opinion, this is not a correct reading of the Tribunal's decision. It is true that the Tribunal commented on the fact that the applicant did not pursue the complaints that he had filed and that he did not complain about the intrusions into his home and the threats against him in April 1997. However, these comments were made in the context of the Tribunal weighing all the relevant evidence (including the independent evidence) to assist it in deciding whether effective State protection would be available to the applicant if he returned to Sri Lanka. The Tribunal, as it was entitled to do, regarded the independent evidence as outweighing the applicant's evidence. 21 Mr Jordan, counsel for the respondent, submitted that there was no error of law in the Tribunal's decision. He dismissed the three questions posed by Mr Karp as seeking to re-agitate issues of fact. In Mr Jordan's submission, the Tribunal identified the correct legal principles and applied those principles to findings of fact that were open to it on the evidence. He also submitted that the position here is the same as that considered by von Doussa J in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 567, quoted with approval by Lindgren J in Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 at 103: "The respondent's complaint is, in essence, that even if he had sought protection from the French authorities, they could not have 'guaranteed' his safety. It was submitted that the RRT failed to consider whether there was a real chance that such protection as the authorities could provide might not prevent harm to the respondent and his family and this failure resulted in a mis-application of the test whether there was a well-founded fear of persecution based on a real chance of failure of State protection. The submissions raised on the notice of contention in substance seek to re-agitate questions of fact. The RRT dealt with the evidence before it which the respondent argued should lead to a finding that there was a real chance that the authorities in France would not extend to the respondent 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. Even accepting that the respondent held a genuine fear in that respect, the fear had to be a well-founded one. It was clearly open to the RRT to find, as it did, that there was no real chance, as a matter of objective fact, upon which the respondent's genuine belief could be 'well-founded'". 22 I agree with Mr Jordan's submission. The Tribunal had a great deal of independent evidence on which it could base a conclusion that effective State protection was available. There was no error involved in the Tribunal choosing to give more weight to the independent evidence than to the claims of the applicant. 23 Mr Karp also submitted that the Tribunal had fallen into the error described in s 476(1)(g) in that there was "no evidence or other material to justify the making of the decision", the relevant decision being that the applicant is not a refugee within the meaning of the Convention definition. Mr Karp recognised that this ground cannot be made out unless one of the subparagraphs of s 476(4) is satisfied, in this case s 476(4)(b). In his submission, the Tribunal based its decision on the existence of a particular fact which did not exist, namely the fact that the applicant would have access to effective State protection if he returned to Sri Lanka. 24 There is no doubt that the fact that the applicant would have access to effective State protection was critical to the making of the Tribunal's decision and therefore that the decision was based on that fact; Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220. However in order for the challenge under s 476(1)(g) to succeed, it would also be necessary to establish both the negative proposition that there was no evidence to justify this finding of fact and also the positive proposition that the fact does not exist. These requirements make the ground of review in s 476(1)(g) very difficult to make out. In Pat Tai Choi v Minister for Immigration and Multicultural Affairs (Lindgren J, 2 December 1998, unreported) Lindgren J referred to the subsection as "a 'gateway' through which an applicant must pass before it is permissible for the Court to proceed to hold that ground (g) of subs 476 (1) is established". In Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 224 Black CJ commented that: "… the requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in court, where of course any ground must be made out, and that the evidence on the issue is not limited to material that was before the decision-maker" 25 In my opinion the evidence before the Court in this case is nowhere near sufficient to establish that the fact to which Mr Karp has referred does not exist nor could it be said that there was no evidence to justify the making of the decision. The independent evidence on which the Tribunal relied, which I have discussed above, is sufficient to deal with this objection 26 For the above reasons, the orders of the Court are that the application be dismissed and the applicant pay the respondent's costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Solicitor for the Applicant: McDonells Solicitors

Solicitor for the Respondent: Australian Government Solicitor