A16 of 2003 v Minister for Immigration - [2004] FMCA 184

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A16 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 184

MIGRATION – Review of decision of RRT – whether Tribunal was correct in its formulation of the test for effective state protection.

Migration Act 1958 (Cth) s.91R(2)

Applicant A v Minister for Immigration (1997) 190 CLR 225
Singh v Minister for Immigration [2002] FCA 37
MIMA v Epeabaka (1999) 84 FCR 411
NACB v MIMIA [2003] FCAFC 235
MIMIA v W306/01A [2003] FCAFC 208

Applicant:

APPLICANT A16 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

AZ 281 of 2003

Delivered on:

17 March 2004

Delivered at:

Adelaide

Hearing date:

17 March 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr M Clisby

Counsel for the Respondent:

Mr K Tredrea

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 281 of 2003

APPLICANT A16 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of India. She arrived in Australia as a visitor in April 2000, and on 8 June 2000 she applied for a protection (Class XA) visa from the Department of Immigration and Multicultural and Indigenous Affairs. On 23 June 2000, a delegate of the Minister declined to provide her with a protection visa and she sought review of that decision from the Refugee Review Tribunal. The Tribunal arranged for a hearing into the matter and on 16 April 2002 determined to affirm the decision of the delegate and handed that decision down on 9 May 2002.
The applicant is a separated woman in her late 30s who was married in 1986 in Madras (Chennai). She and her husband have two sons who remained in India. Originally the applicant stated that she had separated from her husband in Nellore in January 1998, but this later changed to a separation which took place in 1996. The applicant gave both the delegate and the Tribunal a history of domestic violence caused by the husband's drinking and gambling and disputes arising out of his taking from the applicant, first her life savings of approximately 200,000 rupees and her jewellery and later further moneys.
The evidence is that the applicant moved around between Chennai and Nellore and she had also gone to Guntur, in all of which places she had relations. Although she moved around that part of India, she was always found by her husband, which is not unexpected, given that like many Indian women in her situation she moved to stay with relatives. In this case the applicant also utilised the services of working women's hostels to provide her with accommodation but she claims that she was found there as well.
The applicant claims that if she returned to India she would again be found by her husband and would be subject to further violence from him. She says that the state of India would be unable to provide her with effective protection from this private persecution.
At the commencement of its reasons for decision, the Tribunal sets out in some detail the legislative framework, and in particular quotes s.91R(2) of the Migration Act 1958 (Cth). It discusses the systematic and discriminatory conduct with reference to the authorities and the nature of a well‑founded fear. After rehearsing the evidence put before the delegate and put before it the Tribunal said:
“Furthermore, to the extent that the applicant is threatened with violence by her ex‑husband, I consider that she could avail herself of the protection of the law in India. The evidence available to me indicates that violence against women is not tolerated or condoned by the Indian government.”
The attitude of the Indian government matters because, as McHugh J observed in Applicant A v Minister for Immigration (1997) 190 CLR 225 at [258]:
"The convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee, unless the state either encourages or is or appears to be powerless to prevent that private persecution.”
The Tribunal then went on to say:
[76] “In considering whether the government of an applicant's country or nationality is powerless to protect an applicant from private persecution, the test is not whether the country of nationality is unable to "guarantee” protection against persecution. Rather, the question is whether the government of the country of nationality will extend to the applicant the same degree of protection as that accorded to any of its other nationals and whether it will provide the applicant with a level of protection sufficient to remove a real chance of persecution in the country in question by the private group concerned: see Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 681, per Lindgren J (with whom Burchett and Whitlam JJ agreed).”
[77] “I do not accept on the evidence before me that, if the applicant returns to India now or in the reasonably foreseeable future, she will be denied protection by reason of her gender. I consider that she would be provided with a level of protection sufficient to remove a real chance that she will be threatened with violence, or otherwise persecuted, by her ex‑husband, members of his family or society at large if she returns to India.”
Mr Clisby, who appears on behalf of the applicant, makes one argument upon which his case for review is based. He says that the correct test in relation to the issue of state protection is whether that state protection is effective or meaningful. The test of sufficiency of protection is defined in terms of practical realities, whatever the formal position of the state (in this case India) whether there is a de facto failure of protection, grounded in intention, indifference or incapacity.
In this particular case, he argues, the Tribunal did not address the issue of whether the state protection was effective or not and whether the state of India had the capacity to provide effective protection. Instead the Tribunal approached the issue on the basis of whether the state of India was willing to protect the applicant and did not examine the effectiveness of the state of India to protect the applicant. Thus, he says, the Tribunal made an error of law and therefore a jurisdictional error.
Mr Clisby supports his views by excerpts from Hathaway's Law of Refugee Status at pages 124 to 134 but is unable to provide me with any authority from the courts of Australia to support what some may consider to be a very reasonable assertion. In fact the situation is somewhat to the converse. In Singh v Minister for Immigration [2002] FCA 37 Mansfield J was faced with exactly the same form of wording from a Tribunal as that found in this particular case. At [15] his Honour says:
[15] “The Tribunal then provided a separate and independent reason for rejecting that part of the applicant's claim. In the passage quoted above, it is contended that the Tribunal erred by asking the question in two stages, and in the first question by failing to ask whether the state concerned is unable to offer meaningful or adequate or effective protection against private, unlawful or "persecutory” conduct. Even if that passage in the Tribunal's reasons represents the reason for rejecting that part of the applicant's claim, I do not consider that it is erroneous. The contention is that the Tribunal erred in expressing the question as being: "Whether the government of a country or nationality will extend to the applicant the same degree of protection as that accorded to any of its other nationals ...
It is contended that the Tribunal should have asked whether that government is unable to offer meaningful or adequate or effective protection. In my view the Tribunal has asked that question in any event. It has done so in the second part of the composite question in the passage set out in [12] above, [the passage set out in [12] above is identical to the passage set out [CB 76] and found in these reasons] by addressing whether the Indian government will provide the applicant with a level of protection sufficient to remove a real chance of persecution in India by the private group concerned. That formulation of the relevant question is one expressly adopted by Lindgren J (with whom Burchett and Whitlam JJ agreed) in Prathapan. Lindgren J in turn specifically adopted the expression of that question as expressed in the Minister for Immigration v Thiyagarajah (1997) 151 ALR 685 per von Doussa J at 706‑707. His Honour's reasons for decision were agreed to by Moore and Sackville JJ.”
It seems to me that faced with this authority I am unable to accept the argument put by Mr Clisby. A decision as to which of the two methods of assessing effective state protection is to be preferred will have to come from a higher court.
In the course of discussion with Mr Clisby I pointed out that the Tribunal's findings and reasons seem to be almost fixated on the question of whether or not the applicant could obtain a divorce. I could not see how this could be relevant to a question of violence against her if she should return to India. There is no guarantee that upon the grant of a divorce decree all violence against a person will stop. I also pointed out the apparent illogicality in the finding by the Tribunal that he did not accept that her ex‑husband would be able to find the applicant wherever she moves in her home city of Chennai. I say this was illogical because the Tribunal appears to have accepted evidence from the applicant that he was able to find her when she lived in Chennai previously.
These matters were not the subject of Mr Clisby's application, probably rightly. It is clear from the authorities that want of logic is not a jurisdictional error: MIMA v Epeabaka (1999) 84 FCR 411 at [26]; NACB v MIMIA [2003] FCAFC 235 at [30]; MIMIA v W306/01A [2003] FCAFC 208 per French and Hill JJ at [46] and Marshall J at [78]. They do not form the integer of the decision. That is based firmly on the question of effective protection, and in that regard I am unable to find that the Tribunal has fallen into jurisdictional error.
Insofar as it may have been necessary, I would extend the time by which the applicant was able to make her application to this court until the date of that application. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: