SZDWR v Minister For Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellants are husband and wife and citizens of Sri Lanka. The first appellant is of Tamil ethnicity. Their application for a protection visa was refused by the Minister's delegate and affirmed by the Refugee Review Tribunal ('the Tribunal') (No 3/47380). A Federal Magistrate dismissed an application to set that decision aside: SZDWR & Anor v Minister for Immigration & Anor [2005] FMCA 860.

the tribunal's decision 2 The first appellant claimed that he feared persecution from the Liberation Tigers of Tamil Eelam ('the LTTE'). He recounted a history of harassment, assaults and threats of death by the LTTE directed to him and his wife. This course of action appears to have commenced after the appellants assisted the police in investigating the murder of their son. He was placed in a difficult situation when the police and security forces used him to assist in identifying LTTE militants and this led to further assaults and threats by the members of the organisation and neighbours who supported it. On another occasion he was arrested and interrogated by the police about his support for the LTTE. The LTTE repeatedly demanded money from him and threatened to kill him and his wife if they did not pay. As a result they moved out of their house, leaving the keys of the house with a relative. The relative later contacted him and advised that members of the LTTE had demanded the keys to his house. 3 The first appellant told the Tribunal that he reported this matter to the police and the army. The police interrogated him about his involvement with the LTTE and accused him of collecting money for it. A police officer said he had information about his involvement from the army and that he should hand over the keys to the appellant's house together with a written note saying that he had given the house to the police to use. The police also demanded a bribe whilst threatening the first appellant with prison. At the same time the appellants received letters from the LTTE demanding that the first appellant present himself at their office. They decided to flee from Sri Lanka at this time. They feared persecution from the LTTE should they return to Sir Lanka. 4 The first appellant had sought other assistance and protection from the actions of the LTTE. He wrote to the President of Sri Lanka, whose Secretary forwarded the letter on to the Ministry of Defence. The Tribunal asked the first appellant whether he had reported the extortion by the police and he said that it was very difficult to take action against the police. The Tribunal also identified a number of avenues of protection which were available to the appellants, including an approach to the Human Rights Commission. He said that he was told to take his letter to a particular officer. That person was not there when the appellant attended at the Commission and he did not take the matter any further. 5 The Tribunal understood the first appellant to claim a fear of persecution by both the LTTE and the Sri Lankan police. The LTTE was alleged to have persecuted him because he is Tamil and because its members imputed to him a political opinion of opposition to the LTTE. The police had attempted to extort money from him and persecuted him because he was a Tamil and a supporter of the LTTE, he claimed. The Tribunal did not consider it likely that the police held any particular belief about the first appellant's political opinions or ethnicity, but rather that he was a convenient target for extortion. It did not go on to make findings about this because it was satisfied that the appellants were able to access effective State protection for the illegal activities of the police and of the LTTE. In this regard it had referred to a body of Country Information. That information showed that there were various avenues open to citizens to obtain protection from extortion by the LTTE and by corrupt police and to challenge the failure of the police to perform their duty to investigate his complaint against the LTTE. Access to justice in Sri Lanka is effective, albeit slow and inefficient, it found. There were other non-Court avenues of protection, such as the Human Rights Commission. The information about the Commission, which the Tribunal had referred to earlier in its reasons, was that it had power to investigate infringement of fundamental rights and to recommend protection. The information had also identified a Committee which enquires into harassment by the police. 6 The Tribunal was not satisfied that had the first appellant sought redress and protection from the harm inflicted by the LTTE and the corrupt police, that the government was unable to provide such protection or that it would have refused or declined to provide protection. The police officer had acted illegally, but nothing in the independent evidence suggested that the Sri Lankan government encourages, condones or is unable to prevent the commission of crimes by police officers against Sri Lankan citizens. There are a number of avenues of redress for illegal acts of police officers, but the first appellant had not availed himself of them. The Tribunal was not satisfied that the first appellant would have been refused the protection available to any other Sri Lankan citizen had he sought that protection. It said that the Full Federal Court, in Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67 ("Kandasamy"), had held that there cannot be a failure of State protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming. It was not satisfied that "the protection available to Sir Lankan citizens is so ineffectual as to give rise to a real chance that the applicant would be persecuted". It considered that it was reasonable to expect a mature and educated person such as the first appellant to access the available protection. To be effective protection did not require an absolute guarantee against harm.