Abeysinghe v Minister for Immigration & Multicultural Affairs [2001] FCA 137 (9 February 2001)

Last Updated: 30 March 2001

FEDERAL COURT OF AUSTRALIA

Abeysinghe v Minister for Immigration & Multicultural Affairs [2001] FCA 137

Migration Act 1958 (Cth) s 65 and s 476(1)(e)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 applied

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 applied

Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 175 ALR 585 applied

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1996-1997) 191 CLR 559 applied

STEVE JAGATH ABEYSINGHE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 97 OF 2000

MANSFIELD J

9 FEBRUARY 2001

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 97 OF 2000

BETWEEN:	STEVE JAGATH ABEYSINGHE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	9 FEBRUARY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay to the respondent costs of the application to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 97 OF 2000

BETWEEN:	STEVE JAGATH ABEYSINGHE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	9 FEBRUARY 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 25 July 2000.

2 The Tribunal affirmed a decision of a delegate of the respondent made on 9 October 1998, refusing to grant to the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). The applicant claimed that he was a person to whom Australia owed protection obligations under the Act, so as to be entitled to the visa. In practical terms that meant that he claimed to be a refugee within the meaning of that term as defined in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act). He failed to satisfy the delegate of the respondent and, on review the Tribunal, that he did have that status.

3 The applicant is a thirty-one year old male from Sri Lanka. He arrived in Australia on 8 August 1998. He was accompanied by his wife. She is a party to the application for the protection visa, but does not separately claim grounds upon which she is or could be found to be a refugee under the Convention. Her status stands or falls with that of the applicant.

4 The applicant asserted a number of events which he had experienced in the past, and which gave rise to his claim to have a well-founded fear of persecution for a Convention reason, namely his political beliefs or activities. The Tribunal dealt with those claims in chronological sequence. It is convenient to note the Tribunal's findings and conclusions in relation to those claims.

5 By way of background, the applicant first claimed that in 1989 he was recruited as a supporter of the Janatha Virmurthi Peramuna Party ("JVP"), but was then abducted and tortured because of his involvement with the JVP. He did not claim any further adverse consequence as a result of his involvement with the JVP and, as the Tribunal noted, that party has now rejoined mainstream politics as a member of the ruling coalition.

6 The applicant's claimed fear of persecution was in various ways related to his membership of, or activities on behalf of the United National Party ("UNP") of which he became a member after his involvement with the JVP.

7 Prior to the August 1994 national elections, the applicant was an active supporter of the UNP and spoke publicly and critically of a candidate of the opposition People's Alliance party ("PA"). He claimed that as a result of that public speaking, he was beaten by supporters of that opposition candidate and warned to quit the UNP. He claimed that he nevertheless continued to campaign in the election and, on one occasion, had to run away from supporters of that candidate and of the PA party, who started smashing his house. The PA won that election. He further claimed that he had to hide on a later occasion, when some people came to his house to attack him, and he fled to Kandy for a time until things eased up.

8 The Tribunal accepted that he had engaged in those activities and that he had encountered some violence at the time and that he had run away for a period of time as a result. However, because he had then returned to his previous residence, maintained his work and had not suffered subsequent incidents of attack by persons apparently acting at the behest of that candidate of the PA, or at the behest of the PA, the Tribunal did not accept that that politician had subsequently used his influence to damage the applicant, or to seek to damage the applicant either at his home or at his work. It concluded that there was therefore no real chance, if the applicant were to return to Sri Lanka now, that he would run any risk of persecution in the future by such conduct instituted by that candidate, or by the PA.

9 The applicant claimed also that in 1994, in the course of his employment, he was detained by police for two days after a strike and was then released. He was, at the time, a union secretary. The Tribunal accepted that he had been detained as a result of strike activities at that employer but found, as the applicant said himself, that he was soon released and that he returned to work. The Tribunal was not satisfied that that incident was related to his activities on behalf of the UNP which, at the time, was still in power. It was also of the view that, even if that incident occurred because of the applicant's position as a union secretary (which the Tribunal regarded as plausible), the applicant had nevertheless kept his job and had maintained his employment thereafter for a considerable period of time without further adverse consequences. It did not think that there was any real risk that he would suffer adverse consequences in the future because of his union activities, or in relation to his involvement in that strike.

10 The applicant then claimed that in March 1995 he had been attacked while walking home by people who warned him to stop his political activities. He was concerned about that attack and went abroad to work. He returned to Sri Lanka in January 1997, he said because his father was ill and because he was to marry. In fact, he did marry in Sri Lanka in the course of that return from working overseas. He told the Tribunal that that was a quiet wedding and there was no reception because he wanted to keep his presence in the country quiet. He claimed that he feared further repercussions because of his UNP association if his presence became well known. He was then absent from Sri Lanka again on work for a time.

11 The applicant next returned to Sri Lanka in about April 1997. He said that he had been informed that his wife, who had remained in Sri Lanka, had experienced threatening behaviour. Upon his return, the applicant and his wife moved to a new area in Colombo and he took up a new job. He claimed that, in November 1997, he was detained by police and mistreated after a bomb explosion in a hotel in which he had previously been employed. The Tribunal accepted that it was plausible that he had been detained and questioned on that occasion because a bomb had exploded in a hotel in which he had previously been employed. He was, however, released after a few days and he remained in Sri Lanka for some eleven months after that time without further trouble (subject to one further claim of the applicant). The Tribunal found that that occasion represented a routine investigation of the applicant, and others, in the course of investigating the cause of the bombing which was suspected to have been done by the LTTE, but that the applicant was cleared of suspicion. The Tribunal concluded that there was no reason to think that that particular incident carried any risk of any further consequence to the applicant, or that it was prompted by any involvement he then had with the UNP.

12 The applicant then claimed that, early in 1998, he saw people with swords and poles trying to force open his door. He and his wife tried to escape, but they were unsuccessful. He was beaten up and warned not to be involved in the forthcoming 1999 provincial elections for which he had been nominated as a candidate for the UNP. He said he was hospitalised, and his wife suffered a miscarriage as a consequence of the shock of that attack. They decided then to escape from Sri Lanka. In June 1998, they received a visa to enter Australia. However, due to illness of his wife, their departure from Sri Lanka was delayed for some months.

13 The applicant in general claimed, as the Tribunal noted, that the politician about whom during the 1994 election he had spoken adversely was still bent on gaining revenge against him for that personal criticism. He claimed that he would be detained, threatened and possibly killed because he is a well-known UNP member and because of that criticism. He further claimed that the police would not protect him if he were to return to Sri Lanka.

14 The Tribunal was not persuaded that the applicant had been politically active since 1994. Nor did it accept that he was a candidate for the 1999 regional election. Nor did it accept that, in 1998, he had been beaten and warned not to participate in that election. The Tribunal was satisfied that the applicant had not been involved in public political processes since 1994. There were a number of reasons why the Tribunal reached that conclusion. They included the fact that the applicant was ignorant of any details of the December 1999 presidential election, including the fact that the president had been the victim of a terrorist attack. The applicant was unable to name any PA candidates in the election in which he said he was a candidate, including being unable to name his direct opponent. The applicant presented a letter from a UNP member to confirm his candidacy but the letter did not do so and in significant respects did not confirm the applicant's claims in circumstances where it might have been expected to do so. Moreover, the applicant (as the Tribunal found on material which was available to it) had lived in the same houses for the lengthy periods he was in Sri Lanka with his wife, as he had reported to the Tribunal, and he had had jobs which were or were likely to be readily known to those who may have wished to assail him. The fact that he had not suffered any adverse consequences by way of threats or attacks, since the incidents which the Tribunal had accepted he had experienced up to and in 1994, indicated to the Tribunal that he was not a target for the sort of political violence which he feared.

15 The Tribunal considered independent country information in arriving at its conclusion. It noted that there is still some pervasive violence in Sri Lanka, including human rights abuses and police mistreatment. It noted further that that general information indicated that political violence is not perpetrated only by the PA, but also by other parties including the UNP. It occurs around the time of elections or other significant campaigns. It is directed at groups of people rather than individuals, except in the case of high-profile members, such as politicians or other public leaders.

16 The Tribunal was aware of, and accepted, that the applicant, if he had a significant political profile in Sri Lanka, might face a real chance of persecution for a Convention reason and be unable to rely on effective state protection if he were to return to Sri Lanka. However, for the reasons to which I have referred, the Tribunal found that the applicant had not been involved in public political processes since 1994, and that he ceased his active participation in politics at that time. He did not therefore have the sort of profile which, on the country information available to the Tribunal and which it accepted, might expose him to a risk of persecution for a Convention reason if he were to return to Sri Lanka.

17 The Tribunal also addressed the question of whether the Sri Lankan authorities would respond to any particular complaint by the applicant of violence or a threat of violence if he reported any such conduct to the authorities. Again, in the light of the general country information, the Tribunal was satisfied that the applicant could obtain adequate protection from violence or threats of violence by reporting perpetrators to the relevant authorities. In reaching that conclusion, the Tribunal had regard to the independent country information as to the nature of state protection provided by the Sri Lankan authorities.

18 The Tribunal's conclusion was as follows:

"Taken in the context of the widespread participation in politics of many Sri Lankans, the sporadic nature of political violence and the relatively low profile of the Applicant, the chances that he might be persecuted on account of his political opinions are very remote. He can obtain adequate protection from State authorities and, if he remains anxious about being persecuted, he can avoid such violent confrontations by staying out of the public political process, particularly around election time, or moving to another area. If he determines that he should exercise the right to participate in the political process as he did up until 1994, the Tribunal reiterates that there is only a very remote chance he faces persecution for reason of his political opinion. It also concludes he does not face a real chance of persecution for any other Convention reason."

19 The applicant raised one ground of review only, namely that the Tribunal had erred in law in incorrectly applying the law to the facts as found by the Tribunal, so as to invoke the ground of review available under s 476(1)(e) of the Act. There were two aspects to that claim.

20 The first was that the Tribunal had misconceived the definition of persecution in the Convention. It was contended that the Tribunal as a matter of law regarded the absence of an attempt to attack the applicant subsequent to 1994 as requiring a finding that he had not been mistreated so as to have experienced persecution in the past, and so leading to the conclusion that there was no risk or no real risk of him experiencing persecution in the future. In support of that claim the Court was referred to a number of passages in the Tribunal's reasons in that section headed `Discussion and Findings'. I have carefully considered those passages. It is put, as I understand the submissions, that the Tribunal placed considerable weight upon the fact that subsequent to 1994 there had been no attack upon the applicant either at his home or at his work, and no attempt to attack the applicant either at his home or at his work in circumstances where there had been ample opportunity by the particular PA politician, whom the applicant has criticised, or by those acting on behalf of the PA, to have done so. It is contended that the emphasis of the Tribunal upon looking to see whether there had been any such attack in the past involved the Tribunal proceeding on the basis that for the applicant to have suffered persecution in the past, he must have sustained significant physical attack. It is then contended that the Tribunal erred in law in requiring there to have been a significant physical attack upon the applicant before persecution could have been found.

21 The respondent acknowledges that the existence of a well-founded fear of persecution for a Convention reason does not require that the applicant fear physical attack involving significant physical injury nor that the applicant had experienced physical attacks involving significant physical injury in the past. So much is clear. Reference may be made to the decisions of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 particularly per McHugh J at 430-431, and to his Honour's remarks in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 258-259, and most recently to his Honour's remarks in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 175 ALR 585 at 599-600 [61-62] and [65].

22 However, in my view the Tribunal did not fall into the error which the applicant contends. As I read its reasons, it was simply addressing the nature of the claims which the applicant asserted. That is, his particular claim was that if he were to return to Sri Lanka he would be subject to attacks involving the risk of significant physical violence, if not death, from his political opponents. Given the nature of that claim, in my judgment, the Tribunal did not err in addressing his claims of having experienced such attacks in the past. Nor did it err, having found that he had encountered some violence in 1994, in considering whether he had suffered any such violence between 1994 and August 1998 when he arrived in Australia, other than the periods he had been working overseas. Those sorts of considerations are relevant to determine whether the applicant was or might be at risk of the sort of event which he said he feared, that is to determine whether the fear which he now expressed was well-founded.

23 The Tribunal made the observation on a number of occasions that the politician concerned, or PA supporters, had had the opportunity to cause the applicant to be attacked in the years subsequent to 1994 and had not taken that opportunity, as indicating that there is no longer a real risk that they might do so in the future. In my judgment the Tribunal was simply responding to the applicant's expressed claims. I am not satisfied that the Tribunal misdirected itself in law as to the meaning of the expression "persecution" or as to the application of that concept in its consideration of the facts.

24 The other aspect of the claimed error of law, it is submitted, is that the Tribunal erred in applying the test of whether there was a well-founded fear of persecution for a Convention reason by wrongly imposing upon the applicant an "evidentiary onus of proof" which was improper to impose. In my judgment, the Tribunal did not err in that way. It was incumbent upon the Tribunal to consider the applicant's claims to have a well-founded fear of persecution if he were now to return to Sri Lanka. To do that, it was appropriate for the Tribunal to address his claims as to the experiences which he had incurred in the past, and to make findings about them.

25 It was also appropriate for the Tribunal, in the light of the findings it made about those experiences, to look at the other things which the applicant had done, the places where he had lived, the places where he had worked and his other activities, as relevant to the question whether the violence which he had been found to have suffered in 1994 might occur in the future. In my judgment, it is relevant to that question to determine whether the applicant had been in the situation where, between 1994 and 1998, the sort of violence which he had been found to have experienced in 1994 might have been visited upon him without difficulty in the period to 1998. I regard the Tribunal's reasons as doing no more than applying the sort of process of reasoning referred to by the High Court in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1996-1997) 191 CLR 559. In the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574, their Honours said:

"The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence."

26 The Tribunal is required by s 65 of the Act to grant the protection visa if it is satisfied that the criteria for the grant of that visa have been established. If it is not satisfied of the existence of those criteria it is directed by that section to refuse to grant the visa. In my judgment the Tribunal's process of reasoning simply involved making findings of fact as to what had occurred in the past, and applying and using those findings of fact, as well as other findings relevant to the applicant's circumstances between 1994 and 1998, to determine whether it was satisfied that the criteria for the grant of the visa did or did not exist. For those reasons in my judgment this application must fail and I dismiss it. I order the applicant to pay to the respondent costs of the application to be taxed.

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

Associate:

Dated: 2 March 2001

Counsel for the Applicant:	Mr M Clisby
Solicitors for the Applicant:	Mark Clisby
Counsel for the Respondent:	Ms S Maharaj with her Ms E Reed
Solicitors for the Respondent:	Spark Helmore
Date of Hearing:	9 February 2001
Date of Judgment:	9 February 2001