Bartholomeusz v Minister for Immigration & Multicultural Affairs [2001] FCA 184 (5 March 2001)

Last Updated: 5 March 2001

FEDERAL COURT OF AUSTRALIA

Bartholomeusz v Minister for Immigration & Multicultural Affairs

[2001] FCA 184

MIGRATION - protection visa - political refugee - whether the RRT complied with s 430(1)

Migration Act 1958 (Cth) Pt 8 s 430(1)(c)

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; [2000] 98 FCR 469 - cited

Mehmood v Minister for Immigration and Multicultural Affairs [2000] FCA 1799 - cited

DILSHAN SENAKA BARTHOLOMEUSZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 703 of 2000

JUDGE: MERKEL J

DATE: 5 MARCH 2001

PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 703 OF 2000

BETWEEN:	DILSHAN SENAKA BARTHOLOMEUSZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	5 MARCH 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 703 OF 2000

BETWEEN:	DILSHAN SENAKA BARTHOLOMEUSZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	5 MARCH 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant, who is a citizen of Sri Lanka, arrived in Australia on 13 June 1996. He lodged an application for a protection visa on the ground that he was a political refugee. He claims that, owing to a well-founded fear of being persecuted for reasons of political opinion he is outside of the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country and is unwilling to return to it: see Art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Refugees Convention").

2 A delegate of the Minister refused the application and, on review by the Refugee Review Tribunal ("the RRT"), the RRT by its decision made on 27 July 2000 affirmed the delegate's decision not to grant a protection visa. The applicant has now applied to the Court under Pt 8 of the Migration Act 1958 (Cth) to review the decision of the RRT on the ground of error of law.

3 The applicant lived in the Colombo district of Sri Lanka. His claims, in so far as they are relevant to the review, may be summarised as follows. In 1994, as a supporter of the United National Party ("the UNP"), he participated in a number of political meetings and activities which were violently disrupted by opponents of the UNP. As a result of the violence the applicant received four injuries, including a stab injury in his stomach. He believes that the injuries were caused by the UNP's political opponents. The applicant fears reprisals and revenge by those opponents if he returns to Sri Lanka. The basis of the fear was that there was to be a further election in Sri Lanka in September/October 2000 and he feared a repetition of the events he experienced in 1994. On the basis of the foregoing matters the applicant claims to be a political refugee.

4 The RRT accepted that because of the continuing political and social instability in Sri Lanka it was feasible that the applicant had a continuing subjective fear of living there. The RRT stated that the question for it was whether that fear is objectively well founded within the criteria of the Refugee's Convention.

5 The RRT did not accept that the applicant's claims were well founded. While it accepted that there had been incidents of violence against UNP supporters from time to time (which included actions by thugs and vigilantes sponsored by politicians) and that the incidents were continuing, the RRT stated that the country information revealed that those incidents had not occurred in areas from which the applicant came. The RRT stated that the evidence did not suggest that there is a widespread or generalised campaign of violence against UNP supporters. The RRT observed that although the applicant had been a supporter of the UNP he had not at any time held any position in the party and had not played any active political role in it. Further, the applicant was able to remain in Sri Lanka for two years after 1994 without being harmed after the 1994 elections.

6 The RRT concluded that the country information and the applicant's own history do not support the view that the applicant would be at risk of persecution as a UNP supporter from political opponents should he return to Sri Lanka.

7 The RRT then considered the applicant's claim that he also feared reprisals from the Janatha Vinukthi Paramuna ("the JVP") and from the security forces as a result of his past political activities. The RRT concluded the JVP no longer presents a risk to the applicant and the chance of the applicant facing persecution from the JVP was "less than remote". The RRT also found that there was no real chance of "the applicant being persecuted by the security forces or any other political group in the event that he returns to Sri Lanka". The RRT concluded that, having considered the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Accordingly, the RRT affirmed the decision of the delegate of the Minister not to grant a protection visa.

8 The main ground upon which the RRT's decision was challenged was that it had failed to comply with s 430(1)(c) of the Act by failing to set out findings on material issues of fact. The applicant claimed that the RRT failed to deal with his claimed fear of political persecution in the election context in which it arose. It was contended that the RRT had not made findings in respect of the applicant's evidence that his fear arose because:

* of the forthcoming election in September 2000;

* the violence he had suffered in the 1994 election was likely to be repeated; and

* the government could not offer him any effective protection from the risk that presented to him.

9 The fact upon which the case of the applicant turned related essentially to whether he had a political profile by reason of his past activities (in 1994) that put him at risk in the present political climate of a repetition of the violence he experienced in 1994. The RRT, after reviewing the evidence relied upon, was satisfied that the applicant did not have any real political profile as a result of his past activities. Indeed, the RRT's view was not only amply supported by its reasons but was also supported by the applicant's evidence that after 1994 he desisted from engaging in political activities and the absence of evidence by him that, if he returned to Sri Lanka, he would play an active role in the forthcoming elections.

10 In my view there is no basis upon which the RRT's decision can properly be criticised as a decision which has failed to comply with s 430: see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; [2000] 98 FCR 469. The RRT did not find that there was no risk of the applicant being caught up in politically inspired violence at the forthcoming election. Rather, it found that there was no real risk of the applicant being sought out or targeted for violence by any political opponents or political groups by reason of any of his past activities. Plainly, the finding was made in a context that included the forthcoming elections in Sri Lanka which were put forward by the applicant as the basis for his claim. In substance the RRT accepted that there may be a real risk of violence during the elections but that there was no real risk of the applicant being sought out as a target for that violence.

11 It was also contended that the question of whether the government was able to provide effective protection was not dealt with by the RRT and the failure to do so demonstrated that it had failed to address a critical issue raised by the applicant's claims. The ability of the government to offer effective protection from persecution, whether the persecution be private or by authorities of the State, may be a significant issue in many cases. As was observed recently by von Doussa J in Mehmood v Minister for Immigration and Multicultural Affairs [2000] FCA 1799 at [15] what is required is that the State offer effective protection from persecution sufficient to remove any real chance that it will occur. However, his Honour also observed that however good the level of protection offered by the State might be, random acts of thuggery or other criminal behaviour cannot always be prevented and hence absolute guarantees against harm are impossible in fact, and are not required in law, to negative a real chance of persecution.

12 In the present case the RRT did not consider the issue of effective protection but, in my view, in the absence of a finding that there was a political profile that put the applicant at risk of political persecution should he return to Sri Lanka, the question of whether the government was able to provide effective protection in respect of that risk did not arise for decision. Accordingly, there was no error of law on the part of the RRT in failing to address that issue in the present case.

13 Finally, it was contended that the RRT had dealt with the applicant's claims on the basis that the risk feared was State sanctioned or authorised, rather than private, political persecution. In my view there is no proper basis for the submission. The RRT dealt with the applicant's case of fear of persecution as a UNP supporter on the basis of a fear of persecution by "political opponents" who on some occasions sponsored "actions by thugs and vigilantes". It is clear that the issue of the fear of persecution by the State was dealt with subsequently by the RRT as a separate issue.

14 For the above reasons the grounds upon which the applicant relied to review the decision of the RRT have not been made out. The application is to be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 5 March 2001

Counsel for the Applicant:	Mr J Gibson
Solicitor for the Applicant:	Eriskine Rodan & Associates
Counsel for the Respondent:	Mr P Gray
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 March 2001
Date of Judgment:	5 March 2001