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Cases

MIGRATION - Application for review of decision of Refugee Review Tribunal - Whether Tribunal asked the wrong question - Whether "effective protection" was basis for decision - Whether concept misapplied - No jurisdictional error.

VGAK v Minister for Immigration [2003] FMCA 116 (17 October 2003)

VGAK v Minister for Immigration [2003] FMCA 116 (17 October 2003)
Last Updated: 21 October 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VGAK v MINISTER FOR IMMIGRATION
[2003] FMCA 116



MIGRATION - Application for review of decision of Refugee Review Tribunal - Whether Tribunal asked the wrong question - Whether "effective protection" was basis for decision - Whether concept misapplied - No jurisdictional error.



Judiciary Act 1903

Migration Act 1958

Craig v South Australia (1995) 184 ALR 163

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574

Adan v Secretary of State for the Home Department [1999] 1 AC 293

Howarth v Secretary of State for the Home Department [2001] 1 AC 489

WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 241

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225

Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1

Labara v Minister for Immigration & Multicultural Affairs [2002] FCAFC 145

WAFH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 429

Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95

Mehmood v Minister for Immigration & Multicultural Affairs

[2000] FCA 1799

Thiyagarajah v Minister for Immigration & Multicultural Affairs (1997) 73 FCR 176

Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543

Minister for Immigration & Multicultural Affairs v Thiyagarajah [2000] HCA 9

Bartholomeusz v Minister for Immigration & Multicultural Affairs [2001] FCA 84

Singh v Minister for Immigration & Multicultural Affairs [2002] FCA 37

Svecs v Minister for Immigration & Multicultural Affairs [1999] FCA 1507

Malvaganam v Refugee Review Tribunal [2000] FCA 718

Minister for Immigration & Ethnic Affairs v Guo (1997) CLR 559

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 295

Applicant:
VGAK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 1069 of 2002



Delivered on:


17 October 2003



Delivered at:


Parramatta via tele-conference to Melbourne



Hearing Date:


31 March 2003



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Mr G Gilbert



Solicitors for the Applicant:


Wimal & Co.



Counsel for the Respondent:


Ms S Moore



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application be dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ1069 of 2002

Applicant VGAK of 2002


Applicant

And

The Minister for Immigration & Multicultural & Indigenous Affairs




Respondent


REASONS FOR JUDGMENT
Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 July 2002 affirming a decision of a delegate of the Respondent to refuse to grant a protection visa to the applicant. The applicant applied to the Federal Court on

21 August 2002. On 13 October 2002 Marshall J transferred the matter to this Court.

2. The applicant is a citizen of Sri Lanka who arrived in Australia on

23 June 2000 as the holder of a subclass 456 Business (Short Stay) visa. On 13 July 2000 he lodged an application for a Protection (Class XA) visa. The application was refused on 7 September 2000 and he applied to the Tribunal for review on 24 September 2000.

3. The applicant claimed to fear persecution in Sri Lanka from both the United National Party (UNP) and the People's Alliance Party (PA). He claimed to have been a past supporter of the Sri Lanka n Freedom Party (SLFP) which later became the PA. In 1991 he changed his allegiance to the UNP. In 1994 he again changed his allegiance, joining the PA. In 1997 he was elected as a PA representative in Municipal Council elections. He claimed that he was threatened and harassed by UNP supporters during the campaign and received death threats. In 1999 he assisted the PA in the provincial council elections campaign. There were violent clashes between the PA and UNP supporters and he was threatened. He claimed that in April 1999 UNP thugs threw a grenade into his home. The police investigated the case and arrested three or four people, later released on bail. He kept campaigning but did not stay at the house at night. His wife and children remained in the house because they were not targets.

4. The PA candidate won the election. The threats continued. About a month after the election he heard people outside the house. He and his family ran out the back. A hand grenade was thrown at the house. The police investigated. The applicant and his family were unable to identify those responsible. No arrests were made. A PA Minister arranged for him to be given a police guard on his house for 3 months. Nothing further happened while the guard was in place. After three months the guard was taken away for other work. The applicant felt that he could not stay in the house. He went to stay with his brother in Colombo before coming to Australia in June 2000. He claimed to fear persecution by reason of his political opinion from UNP supporters and also from PA supporters who would take a dim view of his desertion of the party.

5. After the Tribunal hearing the applicant provided further information, claiming that his house had been stoned before the December 2001 general election and set on fire after the election. His wife had complained to the police. She did not know who was responsible but suspected it was her husband's political opponents. The UNP won those elections. He claimed that UNP supporters continued to stone the house and harass and threaten his family and that the police had taken no action and that the local UNP member of parliament had things under his control who would take action against him. The applicant also submitted information about the political situation in Sri Lanka and a letter from a PA Minister to the President of Sri Lanka .

The Tribunal decision

6. The Tribunal accepted that political violence was a significant problem in Sri Lanka , that the applicant had a history of political involvement, that he was threatened when he stood for election in 1997 and that during and after the 1999 Provincial Council election campaign he was threatened and grenades were thrown at his house on two occasions and that such harm was of a severity such as to constitute persecution. However, the Tribunal did not accept that Sir Lankan authorities refused to protect or were unable to protect him in relation to the attacks on his house in April and May 1999. The Tribunal reasons for decision outlined the actions taken by the police on these occasions including investigation, arrest and charging of three people in relation to the April 1999 events and provision of a police guard for three months after the May 1999 events. The Tribunal noted that the applicant did not suffer any further harm prior to his departure from Sri Lanka . It found that the authorities were willing to protect the applicant from the harm which he feared for reason of political opinion and that they had done so during the period following the 1999 elections.

7. Further, the Tribunal did not accept that the applicant was in hiding in Colombo prior to his departure from Sri Lanka or that he left the country because he feared he would be harmed for reasons of his political opinion. He could not adequately explain his delay in leaving the country and his unexplained application for a new and unnecessary passport to the satisfaction of the Tribunal. This gave the Tribunal cause to doubt the genuineness of his claim to have left Sri Lanka to escape persecution for reason of his political opinion. Nor did the Tribunal accept that the applicant was in any danger from the PA because he had deserted the party. This was contrary to his evidence to the Tribunal. The Tribunal found that there was not a real chance he would be harmed by the PA if he were to return to Sri Lanka now or in the reasonably foreseeable future.

8. The Tribunal considered whether, given that the UNP had regained government in December 2001, and won local government elections in May 2002, there was a real chance that in the changed political environment the applicant would be persecuted for his political opinion (as a former PA representative) if he were to return to Sri Lanka and, if so, whether the authorities would be unable or unwilling to protect him. The Tribunal accepted that his house had been targeted by UNP supporters during and immediately after the December 2001 election campaign (which was part of a pattern of political violence that occurred in Sri Lanka around election time) and was prepared to accept that stones may have recently been thrown at the house. The Tribunal also accepted:

`that if the applicant were to return to Sri Lanka that there is a real chance that because of his political background he may be subjected to threats and other harm by UNP supporters." (CB 17).

However, it did not accept that such violence would be `condoned' by the UNP Government. It referred to independent country information in relation to attempts to involve the PA in the formation of government, to compensation plans for victims of political victimisation regardless of who the perpetrators of violence were, to the fact that the President belonged to the SLFP so that the UNP was not able to operate entirely unfettered at the highest levels of government. Further the independent evidence was that victims of political violence had recourse to the law in Sri Lanka . The Tribunal also addressed a DFAT Cable (CX48759 of 10 January 2001) referred to by the applicant in his submission of 31 May 2002 which noted anecdotal evidence that in some areas of Colombo and adjoining districts certain political strongmen had given instructions to police in recent elections not to interfere with perpetrators of violence or with their supporters. The Department had been unable to confirm the veracity of this information. The report noted that the reliability and efficiency of authorities in responding to or investigating complaints in the past had been mixed, partly attributable to weakness of enforcement mechanisms, corruption, political pressures and the politicisation of the police service during elections (police having been known to be used by the ruling party for political purposes and to turn a blind eye to acts of political violence). However, the cable also indicated that, notwithstanding such limitations, councillors (as the applicant was) by and large had the protection of law enforcement authorities (if victimised or harassed) and had access to an independent judiciary if their rights were violated.

9. The Tribunal indicated that a country's authorities are not required to provide absolute protection for an individual. It found that if the applicant were to return to Sri Lanka the authorities would be able and willing to protect him from politically motivated violence and that he would have recourse to the courts if he were to suffer harm. In particular, if the applicant were to be threatened or harmed by thugs associated with the local UNP member of Parliament he could seek protection from the authorities and he would have recourse to the law. The Tribunal concluded:

"Taking into account all of the above, the Tribunal accepts that the applicant was persecuted for reason of his political opinion in the past but finds that the Sri Lanka n authorities provided adequate protection for him. The Tribunal finds that if the applicant were to return to Sri Lanka now or in the reasonably foreseeable future there is a real chance that he would face persecution for a Convention reason, namely his political opinion. However, the Tribunal finds that the state would be able and willing to protect him from this persecution. The Tribunal finds that the applicant's fears are not well founded". (CB 18 - 19)."

The Application

10. The applicant claims that the Tribunal fell into jurisdictional error in the sense considered in Craig v South Australia (1995) 184 ALR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 in that:

i) Having found that if the applicant were to return to Sri Lanka there was a real chance that because of his political background he may be subjected to threats and other harm by UNP supporters and that he would face persecution for a Convention reason, the Tribunal wrongly went on to decide the application on the basis of effective protection;

ii) That the Tribunal misapplied the concept of effective protection in circumstances where it made a positive finding that there is a real chance of persecution; and

iii) That the Tribunal wrongly held that if the State could provide recourse after a person had been persecuted this was capable at law of constituting effective protection.

11. In written contentions it was submitted by the applicant that in its approach to the issue of effective protection the Tribunal either did not ask the correct question or constructively failed to exercise its jurisdiction of determining whether or not the applicant was entitled to the grant of the visa. It was submitted that the question for the Tribunal was whether the applicant had a well founded fear of persecution for a Convention related reason and that although the question of protection may be relevant to that question the Tribunal had superimposed on the first element in Article 1A of the Refugees Convention the additional question of whether there was adequate effective protection. Further it was submitted that the Tribunal had asked itself whether the harm was condoned by the authorities and whether the applicant had recourse to the law rather than asking whether the applicant had a fear that was well founded in an objective and subjective sense.

12. Article 1A of the Refugee Convention relevantly defines a refugee as any person who:

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country."

13. Mr Gilbert, Counsel for the applicant, submitted first that, consistent with the views expressed by McHugh and Gummow JJ in Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574, the notion of `protection' in the definition of refugee in Article 1(A) of the Refugees Convention refers to `external' diplomatic or consular protection by the country of nationality and that there is no additional question of whether there was adequate effective internal protection in the determination of whether the person in question was outside the country of nationality by reason of a fear of persecution which was well founded both in an objective and a subjective sense. It was also said that as McHugh and Gummow JJ had suggested in Khawar:

"The `internal' protection and `surrogacy' protection theories as a foundation for the construction of the Convention add a layer of complexity to that construction which is an unnecessary distraction." (at [73])

14. Mr Gilbert submitted that the Tribunal had incorrectly considered the question of ability and willingness to protect from the point of view solely of the country of origin itself rather than from the external perspective. It was submitted that while the question of the level of protection within a country may be relevant, it was not the sole basis for the test but went towards assessing whether the fear was well founded.

15. The express reference to `protection' in Article (1A) is to `external' protection by the country of nationality (see Khawar at [21] and [62]). However, in Khawar McHugh and Gummow JJ expressed concern at the tendency in some English authorities (see Adan v Secretary of State for the Home Department [1999] 1 AC 293 at 304 per Lord Lloyd of Berwick and Howarth v Secretary of State for the Home Department [2001] 1 AC 489 at 495 per Lord Hope of Craighead) and of some commentators to treat protection by the State inside the country of origin as an indispensable part of the test for refugee status on an equal footing with a well-founded fear of persecution (at [62]-[73]). Such an approach was said to inject the notion of `internal protection' into the element of a well-founded fear of persecution. On this view Convention protection would arise as `surrogate or substitution' protection activated only on the failure of protection in the home State (see Hathaway, JC The Law of Refugee Status, 1991, p.112).

16. As indicated, McHugh and Gummow JJ suggested that the internal protection and surrogacy protection theories add an unnecessary layer of complexity to construction of the Convention definition. It was in this context that they suggested that the preferable position was that:

"It may surely be legitimate for a person who fears non-State agents not to accept diplomatic protection outside the country as this would provide the country of origin with the possibility of lawfully returning him or her to that country. That would expose the refugee to the feared harm and therefore would make his or her unwillingness to avail of such external protection both reasonable and `owing to such fear' of persecution." (at [73] quoting from the United Nation High Commissioner for Refugees, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, fn 81).

17. However their Honours found it unnecessary to decide whether the so-called `accountability' theory of interpretation of the Convention (which would limit the Convention to situations where the persecution alleged could be attributed to the State or, on the German approach, was by a quasi-State authority or where there was persecution by non-State agents which was tolerated or encouraged by the State or such that the State was unwilling to offer protection against it [at 74]) should be accepted, because they found that the persecution in question in Khawar lay in the discriminatory inactivity of State authorities in not responding to the violence of non-State actors (at [75] and [87]).

18. Different approaches were suggested by Gleeson CJ and Kirby J to the connection required between the harm and the State. The Chief Justice suggested that protection in the broader sense was not necessarily irrelevant to Article 1A(2) (at [21]), that in determining whether persecution was a threat and whether the fear of persecution is well-founded "the obligation of a State to protect fundamental rights and freedoms ... may be of significance" (at [24]), and that if the persecutor was a non-State agent then tolerance and condonation of persecution (or an inability to do anything about it) may be relevant in defining persecution as well as in determining whether a fear of continued persecution was well-founded (at [22] - [31]). Further, as Branson J pointed out in WAFP v MIMIA[2003] FCA 241, Gleeson CJ in Khawar referred at [18] with apparent approval to what Brennan CJ had stated in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 223 in relation to `persecution' in the Convention sense, in particular that the fear "must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent". Kirby J, who accepted that `Persecution = Serious Harm + The Failure of State Protection' (at [118]), considered state protection relevant in the context of persecution which was non-State persecution condoned or tolerated by the State or present because the State refused or was unable to offer adequate protection (at [114]).

19. In effect it is argued that the Tribunal erred in the manner in which it considered the ability and willingness of the State to protect the applicant from persecution. The applicant urged the Court to adopt the views of McHugh and Gummow JJ in Khawar. However in Khawar, as in Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 20 CLR 1 (see Gummow J and Callinan J at [154] - [155] and [228] respectively) the issue of whether the accountability theory should be accepted was left open. Further, as the Full Court of the Federal Court stated in Labara v Minister for Immigration & Multicultural Affairs [2002] FCAFC 145 at [13] while their reasoning differed, the majority in Khawar accepted that:

"If a person has been exposed to harm by non-State actors and the State has not been able or willing to prevent the harmful conduct it can be relevant to the question of whether the person has a well-founded fear of persecution." (see Gleeson CJ at [29], McHugh and Gummow JJ at [4] and Kirby J at [115]).

Moreover in WAFH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 429 a differently constituted Full Court stated at [34]:

"It must be accepted following Khawar that harm or discriminatory conduct need not be sanctioned by the State before it can be persecution within the meaning of the Convention. Serious harm which is either condoned or tolerated by the State could be persecution."

20. Further, even the so-called `accountability' theory (as described in Khawar by reference to a description of the German law in Adan at [74]), may extend to persecution by non-State agents which is tolerated or encouraged by the State or `at least' is such that the State is unwilling to offer protection against it and, as Gummow J pointed out in Ibrahim at [54], it is not `immediately apparent that the theories of `protection' or `accountability' are necessarily in opposition'.

21. Given that subsequent Full Court decisions confirm that the question of willingness and ability to provide protection is relevant to the aspect of well-founded fear and that serious harm which is condoned or tolerated by the State could be persecution, it is not necessary, in light of my conclusions in this case, for this Court to determine the issue left open in Khawar.

22. I am satisfied that in this case the Tribunal did not superimpose an additional unnecessary question as to whether there was adequate effective protection as submitted by the applicant. It correctly identified the elements of the Convention definition and based on those principles and the evidence before it found that the applicant's fears were not well-founded. In reaching this conclusion it was entitled, on the authorities referred to above, to consider what protection was available to the applicant in Sri Lanka , his country of nationality.

23. Hence it is necessary to consider the applicant's alternative argument that the Tribunal did not deal correctly with the issue of effective protection in accordance with the applicable authorities in finding that the fears were not well founded. It was submitted that, while the Tribunal properly acknowledged that there was no requirement that the State provide absolute guarantees against harm (see Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95 per Lindgren J at [681], MIMA v Thiyagarajah [2000] HCA 9, Mehmood v Minister for Immigration & Multicultural Affairs [2000] FCA 1799 at [15] per von Doussa J. Bartholomeusz v Minister for Immigration & Multicultural Affairs [2001] FCA 84 at [11] per Merkel J and Singh v Minister for Immigration & Multicultural Affairs [2002] FCA 37 at [12] - [16]) Mansfield J, it did not go on to consider the next question of whether the degree of protection which the Sri Lanka n government may provide to the applicant was of the same level as for any other Sri Lanka n citizen and was at a level sufficient to remove a real chance of being persecuted. Hence it was said that the Tribunal had identified a wrong issue or asked itself the wrong question and as a result fallen into a jurisdictional error in the sense considered by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1.

24. As indicated, there is no error in the Tribunal's statement that the country's authorities are not required to provide absolute protection for an individual. At first instance in Thiyagarajah v Minister for Immigration & Multicultural Affairs (1997) 73 FCR 176 at 179 it was held by Emmett J in the context of Article 1E of the Convention (in relation to protection afforded by a third country) that a Tribunal did not err in law in determining that `protection' did not imply that the authorities `must, or can, provide absolute guarantees against harm'. As Lindgren J stated in MIMA v Prathapan (1998) FCR 95 at 104 the Full Court in MIMA v Thiyagarajah (1997) 80 FCR 543 (which based its decision on Article 33 of the Convention which had not been raised before the primary judge):

"implicitly decided that the test under the Convention definition was not whether there was a well-founded fear that the country of nationality was unable to `guarantee' protection against persecution." (at 104).

Also see (MIMA v Thiyagarajah [2000] HCA 9). No issue is taken with the Tribunal's adoption of these statements. Rather it is said that there is another aspect of the test that the Tribunal failed to consider - that is, whether the State would extend to the applicant the degree of protection which would be extended to other nationals and would provide a level of protection sufficient to remove a real chance of persecution in Sri Lanka by, in this case, the UNP.

25. It was submitted that the Tribunal in this case had jumped from finding that the conduct was not condoned by the authorities to an ultimate conclusion as to whether the State was able and willing to protect the applicant and had failed to examine the necessary question of whether the protection for the applicant in Sri Lanka was of the same level as for other Sri Lanka n citizens and then whether that was sufficient to remove a real chance of persecution.

26. In that connection the Full Court in Thiyagarajah had held (see von Doussa J with whom Moore and Sackville JJ agreed, at 567 - 568) that, (as Lindgren, with whom Burchett and Whitlam JJ agreed, said in Prathapan at 104):

"The Tribunal had been entitled to make the factual finding that a fear by Mr Thiyagarajah that there was a real chance that the French authorities would not extend to him `the degree of protection which would be extended to French nationals and would not provide a level of protection sufficient to remove a real chance of persecution in France by the LTTE' was not well-founded".

While Thiyagarajah was concerned with the protection afforded by a third country, the Full Court in Prathapan held that what the Full Court in Thiyagajarah had said on this issue was persuasive as to the general approach to be taken in the context of Article 1A(2) (see Lindgren J at 104 - 105).

27. However in Thiyagarajah the Full Court did not state that the test under the Convention definition necessarily involved an inquiry as to whether there was a real chance that the French authorities would extend to the applicant the degree of protection which would be extended to French nationals and whether that would provide a level of protection sufficient to remove a real chance of persecution in France. Rather, in Thiyagarajah the Court had considered that the relevant question was whether there was meaningful national protection available to the applicant. The Tribunal in that case had considered this question in its `factual finding' based on the evidence before it that Mr Thiyagarajah's `fear' that there was a real chance that the French authorities would not extend to him the degree of protection extended to French nationals and would not provide a level of protection sufficient to remove a real chance of persecution `was not well-founded' (at 567). As von Doussa J said in Thiyagarajah it was open to the Tribunal to find that there was no real chance, "as a matter of objective fact, upon which the respondent's genuine belief could be `well-founded'." (at 567 - 8).

28. Similarly in Mehmood v MIMIA [2000] FCA 1799 von Doussa J stated that while absolute guarantees against harm are not required in law to negative a real chance of persecution at [9]:

"what is required is that the State offer effective protection from private persecution sufficient to remove any real chance that it will occur" at [15]. Also see Bartholomeusz v MIMA [2001] FCA 184 at [11] per Merkel J.

In Singh v MIMA [2002] FCA 37 at [12] - [15] Mansfield J held at [15] that a Tribunal had addressed whether a government was unable to offer meaningful or adequate protection:

"by addressing whether the ... government will provide the applicant with a level of protection sufficient to remove a real chance of persecution in [the country of origin] by the private group concerned".

29. In other words the issue is whether the fear is well-founded and in this context it is relevant to consider the availability of effective protection. Factual findings about the degree of protection extended to nationals of the country are just that - factual findings. Indeed in Prathapan it was found that the factual conclusion of the Tribunal that, in the absence of evidence to show that the responsible French authorities would not or could not discharge the duty to protect the applicant from persecution, it was satisfied that there was no real chance that the applicant faced a risk of persecution in France, showed no error of law. The question was the existence of effective protection. This is also apparent from the Full Court's conclusion in Prathapan at 106 that it was not necessary to determine whether there was a presumption that a country of nationality can provide its nationals with effective protection against persecution as the Tribunal had before it evidence it was entitled to and did accept as to the protection available to the applicant (at 106). (Also see von Doussa J in Thiyagarajah at 567 - 568).

30. In Mehmood, von Doussa J also indicated that the issue was the ability of the State to offer effective protection while in Singh Mansfield J held that the Tribunal had properly asked whether the government was unable to offer meaningful or effective protection by addressing whether the Government would provide the applicant with a level of protection sufficient to remove a real chance of persecution in India by the private group concerned (at [15]). In other words this `formulation of the relevant question' considered whether the Government was able to offer the effective protection. As Mansfield J indicated, it was appropriate to ask such a question as an expression of the question about whether the country was unwilling or lacked the capacity (at [18]) to protect its nationals from persecutory conduct. However these authorities do not establish that the Tribunal must formulate its treatment of effective protection in such terms. (Also see the discussion of protection in Svecs v MIMA [1999] FCA 1507 and Malvaganam v RRT [2000] FCA 718). The appropriate formulation of the question in considering the elements of the Convention definition will depend on the claims made to and evidence before the Tribunal in the particular case.

31. In this case there has been no error by the Tribunal in the manner contended by the applicant. The Tribunal correctly identified the elements of the Convention definition. In concluding that the applicant's fears were not well-founded it was entitled to consider what protection was available to the applicant in Sri Lanka . It considered the applicant's evidence and independent sources of information. In particular it addressed the applicant's claims in this regard. On the basis of his claims of political involvement and independent evidence as to political violence it accepted that he was threatened in 1997 and 1999 and that grenades were thrown at his house on two occasions and that this harm was of a severity such as to constitute persecution. Such past persecution was, properly, relevant in determining whether there was a real chance that a persecutory event would occur in the future (MIEA v Guo (1997) CLR 559). The Tribunal went on to consider whether, in addition to the findings of past persecution, the applicant had a well-founded fear of persecution (in the subjective and objective sense). In this context it considered not only what the authorities had done in the past in relation to the events experienced by the applicant, but also country information about government protection generally in Sri Lanka . While not expressed in terms of the degree of protection available to Sri Lanka n nationals, this is not critical given that the applicant was not a non-Sri Lankan or from a background outside the country of nationality (cf Thiyagarajah and Prathapan).

32. The Tribunal did not accept that the Sri Lanka n authorities had refused to protect the applicant or were unable to do so - based on the applicant's evidence of what had occurred in 1999, the police involvement and the fact that there had been no further attacks at that time. The Tribunal made a positive finding that the authorities were willing and did protect the applicant from the harm which he feared for reason of his political opinion during the period following the 1999 Provincial Council election.

33. It then considered his claim to fear persecution in the future. Having found that there was no real chance that he would be harmed by the PA, it considered his claims based on fear of the UNP which had come into power. In that context it stated:

"It has therefore considered whether there is a real chance that in this changed political environment the applicant would be persecuted for his political opinion if he were to return to Sri Lanka and that the authorities would be unable or unwilling to protect him".

As Gleeson CJ said:

"If there is a persecutor of a person ... who is a `non-State agent of persecution' then the failure of the State to intervene to protect the victim may be relevant to whether the victim's fear of continued persecution is well-founded" (Khawar at [29]).

It is in this sense that the Tribunal considered whether the State could offer effective protection. It detailed the applicant's claims and DFAT advice and accepted that there was a real chance that if the applicant returned to Sri Lanka he would face persecution for reason of his political opinion. However, because of the view it took of the State protection it found that his fear of persecution was not well-founded. As in Singh the Tribunal addressed whether the Government was able to offer meaningful protection in considering whether it would provide the applicant "with a level of protection sufficient to remove a real chance of persecution" (at [15]) in Sri Lanka by UNP supporters.

34. The Tribunal did not jump from its conclusion that the State need not guarantee protection and the finding that violence would not be condoned to the conclusion that the State was able and willing to protect the applicant. The Tribunal first took into account what had occurred in the past. It found that the Sri Lanka n authorities were willing and did protect him in 1999. It also found, on the basis of independent evidence, that violence (by UNP supporters) would not be condoned by the UNP Government. It gave four bases for this conclusion - that the UNP leader had invited the PA to form Government to help solve the long-running ethnic conflict, that the Government had announced a compensation plan for all victims of election violence, that the President belonged to the SLFP so that the UNP was not able to operate entirely unfettered at the highest level of government and that victims of political violence of all parties had equal access to the law and to police protection. In the context of the DFAT cable addressed in submissions from the applicant the Tribunal stated, correctly, that there did not need to be absolute protection as outlined above. The Tribunal also noted that the cable in question concluded that despite limitations `councillors by and large have the protection of law enforcement authorities and access to an independent judiciary if their rights have been violated'. In this reference to recourse to law the Tribunal did not err as submitted by the applicant. It did not gloss over the risk to the applicant of physical violence from grenade attacks in assessing effective protection. Nor was it simply considering access to law. It did not find that recourse to the courts after persecution amounted to effective protection. It properly had regard to whether Sri Lanka had effective judicial and law enforcement agencies (in the context of a situation where police protection had been adequate in the past) in reaching conclusions about whether or not the State was able and willing to provide protection to the applicant. Thus it addressed both aspects in finding that if the applicant were to return to Sri Lanka the authorities would be able and willing to protect him from politically-motivated violence and he would have recourse to the courts if he were to suffer harm. In considering his particular concern that he would be targeted by the local UNP MP and his thugs the Tribunal noted that he could seek protection from the authorities and he had recourse to the law.

35. The focus was the effective protection that could be provided by the State, recourse through State institutions being a component of any effective protection. The finding by the Tribunal that past police investigation and protection had provided adequate protection was relevant as there was no suggestion that such protection would not be available should the applicant return to Sri Lanka .

36. Reading the Tribunal decision fairly and as a whole (see MIEA v Wu Shan Liang (1996) 185 CLR 295) neither its conclusions or the summary of its conclusions involve the superimposition of another question or a misapplication of the concept of effective protection. After finding that there was a real chance that the applicant would face persecution for a Convention reason it found that the State was able and willing to protect him from this persecution. It was on this basis that the Tribunal found that the applicant's fears were not well-founded. Such findings were open to it for the reasons it gave.

37. In concluding that the applicant's fears of persecution were not well-founded the Tribunal correctly set out and applied the law. The Tribunal did not, by use of the words `in addition' in its description of the law, add an extra element to the first part of the definition (beyond the issue of whether the fear was well-founded) as submitted by the applicant. It did set out the second element of the definition (not in issue in this case) that the applicant must be unable or unwilling because of his fear to avail himself of the protection of his country of nationality. In this respect the Tribunal did not accept that the applicant left Sri Lanka because he feared he would be harmed for reason of his political opinion. No issue was taken with its approach in this regard.

38. I am satisfied that the Tribunal did not misapply the concept of effective protection or wrongly decide the application on the basis of effective protection or err in the manner contended by the applicant. It was open to the Tribunal to make the decision it did on the evidence before it. No jurisdictional error has been established in the Craig or Yusuf sense or in any other way. In particular the Tribunal did not ask itself the wrong question in a way that affected the exercise of power or constructively fail to exercise its jurisdiction as was submitted. As no error is apparent it is unnecessary to consider the scope of s.474 of the Migration Act. The application must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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