SZDWR v Minister For Immigration & Multicultural & Indigenous Affairs

the decision of the Federal magistrate 7 His Honour did not accept that the decision in Kandasamy stood for the proposition as stated by the Tribunal. In any event the question was not whether there had been a failure of State protection in the present case, given the Tribunal's position, finding that effective protection was available to the appellants, his Honour held. 8 The focus of the appellants' case before his Honour was that the Tribunal had applied the wrong test in considering whether there was adequate State protection from the police. It was submitted, in reliance upon the reasoning in VRAW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133 ("VRAW"), that the Tribunal had failed to appreciate that a different standard or test of effective protection should be applied in the case of rogue state agents, such as the police in the present case. Finkelstein J had held in VRAW that, in the case of rogue state agents, there would only be adequate protection if the State was taking action to curb their illegal and unauthorised actions (at [19]), referring to Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891 at 1897 ("Svazas"). The second error Finkelstein J had found in the Tribunal's approach in VRAW was that it failed to appreciate that human rights organisations and the like do not offer practical protection from persecution. The appellants in this case conceded before the Federal Magistrate that the Tribunal did not make this error. 9 His Honour the Federal Magistrate expressed a preference for a single test to be applied to the question of State protection from rogue state agents rather than a "different standard" as referred to in Svazas' case. A single test would focus upon the particular circumstances of the feared persecution and the measures of protection available in the country of nationality. His Honour did not consider it necessary or helpful to apply different standards as to the effectiveness of State protection depending upon a particular classification of the "agent of persecution". In his Honour's view, however, a "universal test" operated in the same way as the "different standard" approach in the assessment of the adequacy of protection measures in the present case. This was because both approaches required the Tribunal to appreciate the different risks attaching to persecution by State agents and of the need to find available and effective protective measures to deal with "this type of persecution" before finding that fear is not well-founded. It was therefore not necessary for his Honour to consider whether VRAW should be followed. 10 His Honour was not persuaded that the Tribunal failed to address the issue as to whether the normal criminal processes and special complaints mechanisms would be available and would provide sufficient and effective protection against extortion attempts by corrupt police in Sri Lanka. It had made findings on that matter and as to whether protection was available from the LTTE. In the process its reasons showed that it was aware that the actions of the police required special consideration. The requirements of VRAW were therefore satisfied. No jurisdictional error was shown.

the appeal 11 The appellants sought leave to amend their Notice of Appeal at the hearing in the following terms: "2. The Court erred in failing to hold that the Refugee Review Tribunalhad itself erred in failing to consider whether the attempt by a police officer to extort money from the appellant (when he sought the protection of the police from the Liberation Tigers of Tamil Eelam (the LTTE)) itself entailed a failure of state protection. 3. The Court erred in failing to hold that the Tribunal had itself erred in failing to consider whether the appellant had, (a) made a sufficient attempt at accessing state protection from police corruption and, (b) if so whether such protection that may have been available from the Sir Lankan authorities was inaccessible. 4. The Court erred in finding that the Tribunal has applied the correct test in considering whether the appellant had adequate state protection from the police available to him. Particulars a. The information relied on by the Tribunal in finding that adequate state protection from police corruption was available indicates that it failed to consider whether the state "…not only possesses mechanisms for controlling its officials but operates them to real effect" (Svazas v Secretary of State for the Home Dept (2002) 1 WLR 1891). b. The Tribunal failed to consider, in accordance with VRAW v Minister for Immigration [2004] FCA 1133 that the Sri Lankan Human Rights Commission, to which it said that the appellant should have complained against the attempt by police at extortion, was able to provide the applicant with immediate protection. 5. The Court erred in holding that the Tribunal reached its decision with an awareness of the special considerations to be applied when deciding whether state protection is available from the conduct of 'rogue state agents'." 12 The proposed grounds 4(a) and 5 fall within the compass of the issues determined by the Federal Magistrate. That is to say they concern the application of the cases of Svazas and VRAW. Ground 4(b) was further explained on the basis of the second error identified in VRAW - that the Tribunal had not understood that human rights organisations do not offer practical protection. This ground was however expressly disclaimed by counsel appearing for the appellants before his Honour. They should not be permitted to raise it now. Grounds 2 and 3 are entirely new issues which were not agitated below and no explanation has been offered as to why they were not argued before his Honour. The appellants submitted that because they raise matters of law leave should be granted. Their counsel however acknowledged that a party is bound by the conduct of their case and the broader public interest in efficient judicial administration is not served by appellate Courts considering matters which ought to have been raised before the primary judge: H v Minister for Immigration [2000] FCA 1348. Moreover grounds 2 and 3 do not arise from the judgment in VRAW. Leave to amend should therefore be limited to the matters argued below, which is to say grounds 4(a) and 5. 13 The first respondent also seeks to rely upon a notice of contention, filed out of time, which challenges the correctness of VRAW and the Federal Magistrate's acceptance of it. We do not consider that his Honour did accept the decision to be correct. His Honour's view was that whether one applied a single test of the efficacy of state protection or considered the particular problems thrown up by rogue agents of the State, the Tribunal's reasoning covered both approaches. Nevertheless the correctness of VRAW can be raised in response to the appellants' argument.

DISPOSITION OF THE APPEAL 14 In VRAW Finkelstein J held that when a Tribunal has to determine whether a person has adequate State protection, the authorities establish that there is a different standard in the case of persecution by non-state agents on the one hand and rogue state agents on the other. With respect to his Honour, we do not understand that to be the case and the question, in cases where the State does not itself actively condone or tolerate persecution, is whether the protection it offers is sufficient by international standards. 15 In Svazas the alleged persecutors were the police force. The evidence accepted by the fact-finding Tribunals was of a police force which "systematically or endemically abuses its power", Sedley LJ observed (at [15]) and this was so "despite the law and the will of the government to stop it". His Lordship accepted that there may be another form of persecution other than that emanating from the State, as described by JC Hathaway, The Law of Refugee Status, Butterworths Ltd, Canada, 2 January 1991 pp 125-126, namely "non-conforming behaviour by official agents which is not subject to a timely and effective rectification by the State". In his Lordship's view a State is responsible for what its own agents do unless it acts promptly and effectively to stop them. 16 The views of Sedley LJ were not shared by the other members of the Court of Appeal in Svazas. Whilst Sir Murray Stewart-Smith thought that a distinction needed to be drawn between action by the State's officials and non-state agents, which was because it was necessary to determine whether the standard of protection offered by the State was sufficient where the police were involved. He did not suggest that their acts were to be taken as those of the State, as Sedley LJ's approach implies. Moreover Sir Murray did not consider it correct to require the State to immediately rectify such behaviour. No State can guarantee protection and what has to be attained is a practical standard: "… which takes proper account of the duty the State owes to all its nationals' (per Lord Hogue of Craighead the Horvath case [Horvath v Secretary of State for the Home Department] [2001] 1 AC 689, 500) - a "system of domestic protection and machinery for the detection, protection and punishment of [persecution]" … More importantly there must be an ability and a readiness to operate that machinery. (per Lord Clyde at p 510)." (Svazas [47])." 17 Simon Brown LJ (at [54]-[55]) considered that the relevant question was whether the asylum seeker could establish a need for protection by the international community for want of sufficient protection in the person's home State. In that regard, if the State itself through its agents is actively persecuting the refugee it is plainly not protecting that person. In cases where the State was not wholly complicit, the question to be addressed is whether or not the State can be said to be providing sufficient in the way of protection. 18 The Australian jurisprudence on the issues of persecution and State protection do not support the notion of a third category of persecution. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 (referred to with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] 205 ALR 487; HCA 18 at [19] ("S152/2003"), Brennan CJ said that the definition of refugee must be speaking of a fear of "persecution that is official, or officially tolerated or uncontrollable by the authorities or the Courts of the Refugee's nationality". It follows that where the conduct of police, not acting as agents of the State, is said to amount to persecution, the question which arises is whether the State and its agencies are able and willing to deal with it. The standard of protection referred to in the cases is that of a reasonably effective police force and a reasonably impartial system of justice: see S152/2003 at [28]. It is not complete efficacy and it does not require the State to act immediately. We respectfully agree with Sir Murray Stewart-Smith's view that these requirements would raise the standard to one of a guarantee of safety. S152/2003 confirms that no country can be taken to offer such a guarantee (at [26]). 19 In S152/2003 the majority pointed out that the context of a putative refugee is that of a person who is outside their country of nationality. That person's unwillingness to avail themselves of the protection of their country must be owed to their fear of persecution. That unwillingness must however be justified, not merely asserted (at [19]). Their Honours referred with approval to the views of Hale LJ in the Court of Appeal in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 497 ("Horvath"), that if the willingness and ability of the State to offer protection against the acts of non-state agents is sufficient, a person's fear of persecution will not be "well founded"; if it is insufficient it may turn the acts of others into persecution for a Convention reason; if it is insufficient it may be the reason why the applicant is unable or, if it amounts to persecution, unwilling, to avail himself or herself of the protection of their home State. 20 In the view of the majority in S152/2003 the fact that the authorities may not be able to provide an assurance of safety, does not justify an unwillingness to seek their protection. Once the Tribunal in that case rejected the allegations that the State was complicit or encouraged harm, and that attacks were random and uncoordinated, its finding that the government had the ability to protect meant that the information before the Tribunal did not justify the conclusion that the government could not provide protection to international standards. That being so, the applicant in that case was not a victim of persecution and he could not justify his unwillingness to seek the protection of his country (at [28]- [29]). 21 Similar reasoning applies in this case (see also NAWN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 328). The Tribunal found that the government of Sri Lanka did not condone the commission of crimes by police officers against citizens. Even if the conduct of the officers towards the first appellant on the one occasion amounted to persecution, a finding not made by the Tribunal, (one must not lose sight of the necessity that the alleged persecutory conduct was for a Convention reason) there were a number of avenues of redress open to the first appellant, but he had not taken them. The Tribunal was not satisfied that if the appellants had sought protection from the LTTE and from the police officers it would have been denied. It follows that the Tribunal was not satisfied that the appellants had justified their unwillingness to seek that protection. 22 The appellants, during the latter stages of argument, sought to rely upon the Tribunal's finding that justice was slow. It was submitted that this meant that if the first appellant had complained about the police conduct there would have been delays. As we have said, the requirement of a system of protection is one of reasonable, but not perfect, efficiency. Moreover, as the first respondent points out, the reference to delay was to the Court system and not the other organisations and committees which could conduct investigations into the actions of police officers. 23 His Honour below was correct in dismissing the application for review. The Tribunal addressed the correct questions. The relevant enquiry for it concerning State protection did not require consideration of a subset of persecution not that of the State, but attributable to it. The standard of protection required was not that preferred by Sedley LJ and applied in VRAW. In our respectful view the reasoning in VRAW is not supported by authority and should not be followed. 24 The appeal should be dismissed with costs including costs of the Notice of Contention. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Kiefel and Bennett.

Counsel for the First and Second Appellants: LF Karp

Counsel for the First and Second Respondents: R Beech-Jones

Solicitors for the first and Second Respondents: Clayton Utz

Date of Hearing: 3 March 2006

Date of Judgment: 21 March 2006