Case: Rodrigo v Minister for Immigration and Multicultural Affairs [2001] FCA 1027
Outcome: cited
Connolly FM held that the issue of whether the appellant was shot at, or was or was not an ordinary supporter of the UNP, were clearly matters of fact for the Tribunal and were based on findings of credibility. Further, his Honour noted, contrary to the appellant's assertion, that the Tribunal did not require the appellant to cease his political activities in order to avoid harm. The relevant comments were made in the context of a finding about 'generalised' election violence. The Tribunal said that the appellant could minimise the 'remote' risk of harm by avoiding violent hot spots and 'the fact that political parties engage in violence from time to time does not mean there is persecution within the meaning of the Convention': see Rodrigo v Minister for Immigration and Multicultural Affairs [2001] FCA 1027 (" Rodrigo "). 13 Before Connolly FM, the appellant conceded that the earlier application which he instituted in the High Court was remitted to this Court, and that it was dismissed on 12 July 2004 by Merkel J for non-appearance. His Honour held that this amounted to an abuse of process because the correct procedure was for the appellant to seek to reinstate that application, rather than commencing further proceedings. 14 Finally, Connolly FM held that the delay between the date of the Tribunal's decision and the filing of the application for review was excessively lengthy and unexplained, and that in itself would be sufficient for his Honour to decline to exercise his discretion in the appellant's favour. 15 The appellant filed a notice of appeal on 10 October 2005 setting out the following grounds of appeal: "There was an error of law in the [Federal Magistrate's] decision constituting jurisdictional error. The Federal Magistrate should have found that both these findings did not have the necessary evidentiary basis and as a consequence the decision of the RRT was without jurisdiction. The Federal Magistrate erred in finding that the errors in the fact finding process of the RRT did not amount to failure to exercise jurisdiction and/or that other findings in the decision overcame the decision's shortcomings. The Federal Magistrate should have found that the Refugee Review Tribunal made an error going to jurisdiction or failed to exercise jurisdiction." 16 In contentions of fact and law filed on 17 November 2005, the appellant asserted that he was a strong supporter of the UNP, that he was involved in campaigning at a number of elections and that he has close influential political contacts. He submitted that he was assaulted prior to the general elections in 1999 and was forced to go to his sister's house for treatment, because he was likely to be attacked again if he went to hospital. The appellant asserted that he was very active during the elections in October 2000 and he was the target of a shooting attempt. He asserted that he was the subject of anonymous threats, including a threat to kidnap his daughter, and he was the target of a further shooting attempt in May 2001. The appellant rejected the Tribunal's finding that he was merely an ordinary supporter of the UNP. He submitted that he was a well-known business man with a number of family connections to high profile members of the UNP. He submitted that the Tribunal's finding that he could minimise the remote likelihood of violence by avoiding dangerous situations is a restriction on his right to participate in the democratic process that amounts to persecution. 17 The first respondent contended that Connolly FM was plainly correct in finding that the Tribunal's comments regarding the appellant's role in the UNP and the violence he suffered as a result were matters of fact for the Tribunal and were based on findings as to credibility. Additionally, the first respondent submitted that it is well-established that the mere fact that political parties engage in violence is not persecution, and no error arises from this finding. Finally, the first respondent asserted that the findings by both the Tribunal and Connolly FM in relation to minimising the remote risk of harm were free from error. 21 In my opinion, the notice of appeal and the appellant's submissions, both written and oral, do not disclose any error in the decision of Connolly FM, or for that matter in the decision of the Tribunal. I agree with the view expressed in Rodrigo that the fact that political parties engage in violence from time to time does not mean that there is persecution within the meaning of the Convention. This was the context in which the Tribunal referred to generalised election violence, and the steps that the appellant could take to minimise the risk of being assaulted as a result of such violence. I agree with Connolly FM's conclusion in this regard that the Tribunal did not, as asserted by the appellant, require the appellant to cease his political activities in order to avoid harm arising out of persecution within the meaning of the Convention. 22 Connolly FM held that no error had been established on the basis of the material placed before him and dismissed the appellant's application for review. I agree with his Honour's conclusions and the reasons which he furnished in support thereof. It is not necessary for me to consider the abuse of process point or the delay point. 23 I dismiss the appeal and order that the appellant pay the respondents' costs. 24 In oral submissions, counsel for the first respondent sought leave to amend the name of the first respondent in the title of the proceedings to 'Minister for Immigration and Multicultural Affairs' by removing the words 'and Indigenous'. I will grant leave accordingly. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 9 March 2006 Counsel for the Appellant: Appeared in person with interpreter Counsel for the First Respondent: Mr S. Hay Solicitors for the First Respondent: Clayton Utz Date of Hearing: 16 February 2006 Date of Judgment: 9 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/173.html