Devege v Minister for Immigration & Multicultural Affairs (includes corrigendum of 24 March 2000) [2000] FCA 184 (1 March 2000)

Last Updated: 30 March 2000

FEDERAL COURT OF AUSTRALIA

Devege v Minister for Immigration & Multicultural Affairs [2000] FCA 184

DEVEGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1303 of 1999

JUDGES: BEAUMONT, FRENCH AND MERKEL JJ

PLACE: SYDNEY

DATE: 1 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1303 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RANJITH WIJESINGHE ILANDRI DEVEGE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, FRENCH AND MERKEL JJ
DATE:	1 MARCH 2000
PLACE:	SYDNEY

CORRIGENDUM

In the reasons for judgment handed down by the Court on 1 March 2000 the following amendment should be made:

Page 2, par 4, line 3 - "... the learned primary Judge, Mathews J ...".

Associate:

Date: 24 March 2000

FEDERAL COURT OF AUSTRALIA

Devege v Minister for Immigration & Multicultural Affairs [2000] FCA 184

MIGRATION - whether the Tribunal erred in law in applying the "real chance" test and the relocation principle

Migration Act 1958 (Cth) s 476(1)(e)

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

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 - cited

DEVEGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1303 of 1999

JUDGES: BEAUMONT, FRENCH AND MERKEL JJ

PLACE: SYDNEY

DATE: 1 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1303 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RANJITH WIJESINGHE ILANDRI DEVEGE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, FRENCH AND MERKEL JJ
DATE OF ORDER:	1 MARCH 2000
WHERE MADE:	SYDNEY

The Court orders that the appeal 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1303 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RANJITH WIJESINGHE ILANDRI DEVEGE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, FRENCH AND MERKEL JJ
DATE:	1 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The appellant, who is a citizen of Sri Lanka, lodged an application in Australia for a protection visa on 23 October 1997. He claimed that he was entitled to the visa on the ground that he was a refugee as defined in Art 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1960 Protocol Relating to the Status of Refugees ("the Convention").

2 The appellant claimed he was entitled to refugee status because he held a well founded fear of being persecuted for reasons of political opinion if he returned to Sri Lanka. The fear of persecution arose as a result of a series of five incidents which involved harassment, threats and beatings of the appellant by Sri Lankan army personnel by reason of his role as a human rights lawyer. The appellant, a person of Sinhalese descent, had acted in a number of controversial cases for persons of Tamil descent, who were perceived by the army personnel to be associated with the Liberation Tigers of Tamil Ealam.

3 On 7 May 1999 the Refugee Review Tribunal ("the Tribunal") affirmed the earlier decision of a delegate of the Minister not to grant a protection visa to the appellant. In substance, the Tribunal accepted that the appellant had been persecuted for reasons of imputed political opinion by members of Sri Lankan army units stationed in or around particular localities, outside Colombo, where he had recently practised as a human rights lawyer. However, the Tribunal concluded that the appellant was not at risk from persecution he had previously experienced if he were to return to Sri Lanka and continue his practice as a human rights lawyer in Colombo.

4 The appellant applied under Pt 8 of the Migration Act 1958 (Cth) ("the Act") to the Court for judicial review of the decision of the Tribunal. The appellant's application for review was dismissed by the learned primary Judge, Matthews J, who concluded that none of the grounds for review had been made out. The appellant has now appealed to the Full Court.

5 Before the Full Court the appellant relied on two grounds. The first ground was that the Tribunal erred in law in failing to apply the "real chance" test enunciated in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. The second ground was that the Tribunal also failed to properly apply the internal relocation principle enunciated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. The appellant contended that, as a result of those failures, the Tribunal erred in law by incorrectly interpreting the applicable law and incorrectly applying the law to the facts found by it: see s 476(1)(e) of the Act.

6 The Minister disputed that any error of law was made by the Tribunal and contended that, in substance, the appellant is seeking to challenge the facts found by the Tribunal which is a course not open to him on a review under Pt 8 of the Act.

7 It is necessary to make some observations in relation to the decision of the Tribunal. When its reasons are read as a whole it is clear that the Tribunal accepted that, but for the issue of relocation, it was likely that it would have found in the appellant's favour on his claim for refugee status. In that regard the Tribunal:

* found the appellant's evidence to be consistent and accepted him as a generally reliable and credible witness;

* accepted that the pattern of incidents, of which the appellant complained, was likely to have been carried out by members of the Sri Lankan army;

* found that the incidents amounted to persecution of the appellant for a Convention reason, being the political opinion imputed to him as a consequence of his activities as a human rights lawyer.

8 Having made those findings the Tribunal turned to consider whether there was a real chance of persecution if the appellant returned to Colombo, rather than to the areas where he had previously practised, being Awissawella (58km from Colombo), Mawanella (90km from Colombo) and Kegalle (77km from Colombo).

9 The framework within which the Tribunal addressed the issue of relocation was stated by it as follows:

"The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1."

10 In relation to whether there was a real chance of the appellant being persecuted for a Convention reason if he lived and continued to practise as a human rights lawyer in Colombo acting in controversial matters, the Tribunal made the following findings:

* there was no evidence that the incidents that it had found to amount to persecution of the appellant involved the Police, were authorised by any of the national authorities, or arose as part of a policy directed, condoned or permitted by any of the national authorities;

* whilst the appellant may be at risk from a particular group of army personnel in the locations where the incidents had occurred, he was not at risk from any of the national authorities, as such;

* the Tribunal was not satisfied there was evidence which indicated that human rights lawyers were at risk of persecution in Colombo;

* it was reasonably open to the appellant to live and practise as a human rights lawyer in Colombo where he was able to undertake human rights work without encountering official or unofficial harassment or threats;

* as the appellant was not at risk if he lived and practised as a human rights lawyer in Colombo, the Tribunal was not satisfied that the appellant faced a real chance of persecution for a Convention reason if he returned to Sri Lanka.

11 Counsel for the appellant contended that some of the findings of the Tribunal were internally inconsistent and that the inconsistency demonstrated that it failed to understand the legal issues it was required to address. For example, it was contended that the Tribunal was satisfied that the incidents originated from members of an army unit, but concluded that the appellant was not at risk from the Sri Lankan authorities "as distinct from a particular group of Army personnel in a particular place acting independently". It was said that that passage demonstrates that the Tribunal was not properly applying the Chan test, in that it was requiring that the conduct be authorised by the authorities, whereas the Chan test accepted that persecution can occur where the authorities had failed or were unable to protect the appellant from persecution: see Chan at 430 per McHugh J.

12 There is some justification in the criticism of the Tribunal's description of the conduct of Sri Lankan army personnel as conduct where the personnel acted "independently". However, despite some looseness of language, the Tribunal was not stating that persecutory conduct by Sri Lankan army personnel acting "independently" would not constitute persecution under the Convention. Rather, the point the Tribunal appeared to be trying to make was that the persecution that it found had occurred for a Convention reason was carried out by a particular group of army personnel, acting on their own initiative, at particular locations. That finding was a stepping stone which, together with other findings, led the Tribunal to conclude that the risk of persecution was local, rather than general, with the consequence that it did not extend to the appellant practising as a human rights lawyer in Colombo.

13 Counsel for the appellant also criticised as artificial the acceptance by the Tribunal that the appellant was at risk at locations that were 58-90km from Colombo but not in Colombo. The criticism endeavours to re-argue an issue of fact decided by the Tribunal against the appellant. It was open to the Tribunal to make the relevant findings on the material before it and we are not satisfied that it erred in law in doing so.

14 It was also contended by counsel for the appellant that the Tribunal erred in that it approached the appellant's claim on the basis that he would only be in jeopardy if he practised as a human rights lawyer and that, as other forms of practice were open to him, he did not have a well founded fear of persecution: cf Chan at 431 per McHugh J. We do not accept that the Tribunal approached the appellant's claim on that basis. Reading the reasons as a whole, the Tribunal appeared to have assumed in the appellant's favour, or accepted, that in the event that the appellant faced a real chance of persecution as a result of practising as a human rights lawyer in Colombo, that would amount to persecution for a Convention reason. However, it concluded that he did not face that risk in Colombo.

15 For the above reasons we are not satisfied that the Tribunal erred in law in applying either the real chance test in Chan or the relocation principles outlined in Randhawa. To the contrary, in our view the Tribunal understood its task and directed itself to the questions it was required to determine.

16 Accordingly, we are satisfied that the appellant has failed to demonstrate that the Tribunal erred in law. In those circumstances the appeal is to be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court .

Associate:

Dated: 1 March 2000

Counsel for the Appellant:	Mr L Boccabella with Mr I Asuzu
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 February 2000
Date of Judgment:	1 March 2000