A55 of 2003 v Minister for Immigration
[2005] FMCA 1338
•15 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A55 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1338 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in India as a member of the Hindu and Minority Communities Association Group. |
| Judiciary Act 1903 (Cth), s.39B |
| Prathapan v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 47 ALD 41 Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor (1999) 191 CLR 559 |
| Applicant: | APPLICANTS A55 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1823 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 August 2005 |
| Date of Last Submission: | 30 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C. Jayawardena |
| Counsel for the Respondent: | Ms S. Mason |
| Solicitors for the Respondent: | Mr D.Sim, Clayton Utz |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the applications before this Court in respect of each of the applicants is dismissed.
That the Applicant pay the Respondent’s costs in an amount of $4000.00.
That the Applicant pay the costs in accordance with Order 4 within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1823 of 2004
| APPLICANTS A55 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant a protection visa to the Applicants.
The applicants are an Indian family comprising the husband, a 43 year old Indian citizen, the husband’s wife also a 43 year old Indian citizen and their 2 children aged 8 and 6. The husband and wife have a third child who was born in Australian and is presently 3 years old.
The applicants arrived in Australia on 11 May 2000.
On or about 6 June 2000, the applicants lodged applications for protection (Class XA) visas.
For the purposes of these reasons, I shall refer essentially to the husband as the Applicant as the other applications depend on the outcome of the husband’s application.
The Applicant was born on 8 March 1962 and married on 24 February 1993. The Applicant completed tertiary studies in India, including a Bachelor of Science and post graduate Diploma in personnel management and labour laws. The Applicant worked between 1986 and 2000 in sales and sales management.
The Applicant claimed that he “left India due to constant threat to my life and property by Rashtry Sewak Sangh and Bajrang Dal. I fear for the life of me and my family.” The Applicant claimed to fear persecution for his role in promoting unity amongst various communities from Rashtry Sewak Sangh (“RSS”) and Bajrang Dal (“BD”), which are the extremist wings of the ruling Bhaytra Janta Party (“BJP”) of India.
The Applicant claimed to fear harm for his political beliefs from the government of India who were furious with him for uncovering their involvement in the death of missionary, Graham Staines and his sons.
On 16 June 2000 the Department notified the Applicant that his application for a protection visa had been refused as he did not meet the criterion of a person to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol.
The Tribunal proceeding
On 16 June 2000 the Applicant lodged an application for review with the Tribunal. On 10 January 2003, the Tribunal handed down its decision made on 9 December 2002 affirming the decision of the delegate of the Minister to refuse to grant protection visas to the applicants.
The Tribunal had before it the Department’s file and the Applicant’s statement lodged in support of his application for a protection visa in which he made the following claims:
a)That he was born in Rourkela in the state of Orissa.
b)He witnessed hardships and suffering caused by the upper class elite to fellow country men in the name of cast, creed and religion. He wanted to see a secular India free from racial Hindu extremism.
c)He grew up inclined to work towards the welfare of the minority groups of India so joined the movement called Hindu and Minority Communities Association Group (“the Association”) in April 1986 and was one of the founding members of the Association in Orissa. The Association’s charter is to “promote peace harmony and goodwill among all sections of people”. He was a secretary of the Orissa branch and also an executive member of the Association.
d)He organised meetings with various social and political groups and mediated various community disputes. He also organised propaganda meetings towards Hindu, Muslim, Sikh and Christian unity and supported the Congress Party at a state level.
e)The BD made threats to members of the Association for their support of the Congress.
f)On 22 February 1992, his vehicle was intercepted by a gang of BD supporters and he was assaulted together with his Association members.
g)He lodged a complaint to the Kole Nagar police who took no action.
h)On 28 February 1992, a bomb was thrown into his vehicle, however he escaped.
i)On 29 February 1992, his home was looted.
j)He received death threats in respect of himself and his family from the BD if he did not leave Rourkela.
k)On 2 March 1992, the Applicant and his family left Orissa and moved to Delhi where he continued to work for the Association and support the Congress Party at state level.
l)In January 1999, Mr Graham Staines and his 2 children were murdered in Orissa. The Applicant claims he went on a fact finding mission making enquiries in the community which revealed that the crime was committed at the request of the BD. The Applicant claimed he came to the attention of the BD following his role in uncovering the crimes against Mr Staines and his children.
m)On 14 March 1999, he was assaulted when his vehicle was intercepted and BD members beat him and 2 of his associates. The Applicant complained to the Vikas Marg (Delhi) police but this resulted in no action being taken. The Applicant claimed he was admitted to a Delhi nursing home and treated for his injuries.
n)On 15 December 1999, BD members set alight the office of the Association in Delhi thereby destroying the office and all its documents.
o)On 16 December 1999, the Applicant’s house was looted and his household items destroyed.
p)In January 2000, the Applicant and his family moved to Rourkela in Orissa.
q)On 22 March 2000, BD members came to his house looking for him, beat his wife and told her that the Applicant was on their hit list. His wife was ill and bleeding after the beating.
r)An agent arranged for the Applicant and his family to obtain a visa to Australia.
The Applicant attended a hearing of the Tribunal on 2 September 2002 and he gave oral evidence. The Applicant also furnished further material, following the hearing, for the Tribunal’s consideration.
At the hearing, the Applicant gave further evidence that when he was at the police station he was locked up for hours and bashed because the police told him he was not Hindu and was supporting Christians. He said that the police had planned to burn him that night because a reader at the police station told him so. The Applicant said that he gave 50,000 rupees and was able to leave.
The Applicant claimed, in his oral evidence, that he obtained his passport with difficulty and he had had to bribe an official. The passport was issued on 26 July 1999 in Delhi.
The Applicant stated that members of the RSS and BD continued to enquire as to his whereabouts and warned that he and his family will not be spared if they are found. The Applicant stated that he went to the police station in New Delhi when he started to receive death threats from the BD and police said that he should come back when they had killed him.
The Tribunal made the following findings:
a)It accepted that the Applicant is a Hindu from Orissa and that he lived near Delhi for several years.
b)It accepted that he is very concerned about the effects of religious intolerance in India and about the circumstances of minorities.
c)It accepted the existence of the Association and that it is concerned about questions of tolerance and acceptance.
d)It accepted that the Applicant was involved in the Association as claimed and that the numbers of members in the branches in which he participated were as claimed.
e)It did not accept that other groups did not dare to speak of matters advocated by the Association.
f)It noted that the size of the Association, the absence of any mention of it in published sources and the fact that its position affects very widely held concerns led the Tribunal to conclude that the Association had not more than a limited profile in advancing the causes that it organised.
g)It accepted that the Applicant supported and assisted the Congress Party.
h)It was not satisfied that the Applicant’s experience in February 1992 amounted to persecution as it found that the Applicant had exaggerated what had happened to him before 1992.
i)The Tribunal expressed doubt as to the Applicant’s accounts of the threats and violence he claimed to have suffered.
j)It did not accept that the report of the Applicant in respect of the Staines murder in March 1999, or that his submission to the Prime Minister, if actually submitted, contributed anything to the discussions that had already been known and publicised. The Tribunal expressed reservation about whether the Applicant went with others to Orissa to conduct investigations some 3 days after the Staines murder.
k)It did not accept that the Applicant and his companions were able to undertake the investigations claimed. The Tribunal considered that, at most, the Applicant and his companions may have compiled material already reported and expressed outrage and called for an enquiry.
l)It found that the Applicant has “greatly inflated the significance of the outrage he may have felt about what occurred” in respect of the Staines murders.
m)It was unable to accept that the Applicant and his colleagues in the Association would have been singled out as claimed for mistreatment by the BD.
n)It did not accept that the incidents occurred in 1999 as claimed.
o)It was not satisfied that the events described in 1992, which the Applicant stated led him to move to Delhi, occurred or that he was beaten many times by the BD when he returned to Orissa in 2000.
p)It did not accept that the police in 1992, 1999 and 2000 would have been acting at the behest of the government, having regard to the action taken by the government in respect of the Staines murders and the action of the police in response to episodes of violence by BD members elsewhere.
q)It did not accept, as credible, the Applicant’s evidence about being locked up by the police in 2000 and beaten and that the police were planning to burn him.
r)It did not accept that the Applicant had difficulty in obtaining a passport because of anything he claimed in his application for a protection visa. It did not accept that the authorities had any reason to deny the Applicant a passport.
s)It did not accept that the RSS or BD are continuing to look for him.
t)It did not accept that the attacks by Hindu extremist organisations upon Christians are widespread.
u)It considered whether there is a real chance of the Applicant suffering persecution because of his past involvement, and did not accept that the Applicant’s involvement would “sustain for so long the adverse interest of Hindu extremists, including supporters of BD”.
v)It did not accept that the Applicant was persecuted in the past because of his involvement with the Association. It did not find that there is a real chance that he would be persecuted because of his involvement with the Association in the future. It considered whether “there is a real chance that the Applicant will face persecution if he were to resume his involvement with the Association upon return to his country.” It considered that what could happen to the Applicant would be related to the extent of his participation.
w)It considered the nature and extent of the Applicant’s past involvement in the light of all the evidence and it did not consider that the evidence indicated that the Applicant was a target for the BD.
x)It concluded that he was unlikely to become a target of the BD if he were to return.
y)It considered the Amnesty International concerns about the treatment of human rights activists and detailed reporting of religious tensions in India and the enormous range of social and political actions that are pursued by its people. It concluded that “there is not more than a remote chance of the Applicant coming to serious harm as a result of his concern about the implications of the rise in Hindu extremism”.
z)It accepted that the Applicant has been a long time supporter of the Congress Party, one of the main parties in India. It did not consider that the Applicant faced harm of a kind that could be considered as “persecutory” because of that support.
aa)It noted that the Applicant may support the Congress Party if he were to return to India.
bb)It found that India is a robust democracy and elections are contested vigorously and that power changes hands frequently.
cc)It noted that independent information confirmed that political contests can involve violent encounters between opposing groups during election campaigns and at other times and there can be attempts to harass and intimidate people to change their political alliance. However, it was not satisfied that the Applicant’s support for the Congress Party would lead the Applicant to face a “real chance of coming to serious harm even if he decided to become actively involved in politics.”
dd)It considered the adequacy of state protection in India. It noted that “absolute protection of an individual is not required before a conclusion that adequate state protection is available can be reached.” The Tribunal referred to Professor Hathaway’s exposition that the degree of protection normally to be expected by the government would either be lacking or denied before state protection is inadequate.
ee)It noted that “factors relevant in this case are whether there is a ‘reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order and human rights”: Prathapan v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 47 ALD 41 (“Prathapan”) per Madgwick J at 48; it noted that this judgment was overturned on appeal but this point was not the basis for the appeal.
ff)It found that the independent country information revealed that there is a “fair if slow legal system, a functioning police force, a National Human Rights Commission and a number of human rights organisations.”
gg)It concluded that “there is not a real chance he (the Applicant) would face persecution because of his political opinion in support of the Congress Party and against Hindu extremism and that his fear of what may follow his return to India is not well founded within the meaning of the Refugees Convention.”
The proceeding before this Court
Prior to filing in this Court, the Applicant commenced proceedings in the High Court of Australia on 5 February 2003, those proceedings being remitted to the Federal Court on 1 July 2003.
On 4 September 2003, the matter was remitted to this Court. Directions were made on 4 September 2003 requiring the Applicant to file and serve an amended application by 10 October 2003.
On 24 May 2004, Bryant CFM, dismissed the application pursuant to Rule 13.03(2) of the Federal Magistrates Court Rules on the basis of non compliance with the orders of 4 September 2003. The Applicant was ordered to pay the First Respondent’s costs in relation to the proceedings in the Federal Court and the High Court.
On 15 June 2004 the Applicant filed an application for judicial review in this Court that disclosed no reviewable error.
In his Amended Application filed 30 November 2004, I understand the Applicant to be relying on the following grounds:
a) That the Tribunal erred in disbelieving the Applicant’s evidence about the experiences he had endured prior to 1992 as conduct amounting to persecution.
The Applicant, through his legal representative, submitted that the Tribunal did not have any evidence to contradict the Applicant’s claims that he had been hit with sugarcane sticks, knives and batons and still bore the injury and, therefore, should have accepted the Applicant’s assertion.
The Tribunal did not accept, that, had these experiences occurred, the Applicant would have described them as “minor”. The Tribunal, therefore, concluded that the Applicant had exaggerated what had occurred to him before 1992. The Applicant’s evidence, upon which the Tribunal relied in making this finding, was provided by the Applicant orally at the hearing and was given in answer to a question by the Tribunal whether the incident in February 1992 was the “first bad thing which had happened”. As a consequence the Tribunal was not satisfied that those experiences were conduct amounting to persecution.
This ground of review goes solely to the merits of the Tribunal’s decision. The Tribunal provided reasons why it found the Applicant’s evidence in respect of these experiences unconvincing. It found that the Applicant had exaggerated in his oral evidence his account of what occurred to him prior to 1992. The Tribunal was not obliged to accept the evidence of the Applicant. The Tribunal’s finding was open to it on the material before it. The finding was a finding of fact. In the circumstances, this Court has no jurisdiction to interfere.
Accordingly, this ground is rejected.
b) That the Tribunal erred in unreasonably doubting the credibility of the Applicant in relation to the Applicant’s evidence of his activities following the Staines murders
The Applicant submitted that the Tribunal should have cited independent information to back up its findings.
Again, as with the first ground, the Tribunal was not obliged to accept the Applicant’s evidence in respect of his activities following the Staines family murder. It is for the Applicant to satisfy the Tribunal in respect of his assertions of his activities. The Applicant gave oral evidence before the Tribunal. The Tribunal did not find the Applicant a credible witness on this point. The findings made by the Tribunal were open to the Tribunal on the material before it. They are findings of fact. Accordingly, this Court has no jurisdiction to interfere.
This ground is rejected.
c) That the Tribunal erred in failing to invite the Applicant to comment on information from Amnesty International, in accordance with s.424A of the Act, and upon which it relied at the hearing.
This ground is misconceived. A fair reading of the Tribunal decision would indicate that the Tribunal was accepting that the activities of the Applicant’s Association may well be within the type of activities also undertaken by Amnesty International. It is not a finding in any way adverse to the Applicant and was not the reason or part of the reason for affirming the decision under review
Therefore, it was not necessary for the Tribunal to give particulars of the information to the Applicant, nor to invite him to comment under s.424A of the Act.
Accordingly, this ground is rejected.
d) That the Tribunal erred in failing to consider whether there was a real chance of persecution if the Applicant was to return to India and resume his involvement with the Association.
The Tribunal did not accept that the Applicant was persecuted because of his involvement with the Association in the past and did not consider that there was a real chance that the Applicant would be persecuted in the future.
The Applicant submits that this conclusion is wrong and “amounts to mere fantasy by the Tribunal which has point-blankly disbelieved the applicant and not given an iota of consideration to the applicant’s claims.” The Applicant also submitted that the Tribunal was “highly optimistic about the violent political situation in India.”
The Tribunal made findings in respect of the Applicant’s claims of a well founded fear of persecution from the RSS or BD members. The Tribunal did not accept that those organisations were continuing to look for the Applicant. The Tribunal did not accept as credible much of the evidence of the Applicant.
The Applicant submitted that the Tribunal must be satisfied that no harm will befall the Applicant before it could find that there was no real chance of persecution. The Applicant submitted that the Tribunal had not eliminated the prospect of any real threat and therefore has not properly considered whether there was a real chance of persecution occurring in the event the Applicant was to return. That is plainly a misstatement of the law.
In considering whether or not an applicant has a well founded fear of persecution, the Tribunal must consider whether or not there is a real chance of the harm feared occurring in the reasonably foreseeable future. Whether there is a real chance that something will occur is an exercise in estimating the likelihood that one or more events will give rise to that occurrence (Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor (1999) 191 CLR 559 at 575) (“Guo”).
The High Court, in Guo, stated that consideration of past events is the most reliable guide in determining what is likely to occur in the future, and accordingly, findings in respect of past conduct ought to be made. The High Court concluded at 575 that it is:
“ordinarily an integral part of the process of making a determination concerning the chances of something occurring in the future that conclusions are formed concerning past events.”
The Tribunal, having made its findings, considered “whether there is a real chance that the Applicant would face persecution if he were to resume his involvement with the Association upon return to his country.” The Tribunal stated that it considered the nature and extent of the Applicant’s past involvement and, on the evidence, was not prepared to find that the Applicant was a target for the BD. The Tribunal further found that the Applicant was not likely to make himself a target, if he were to return, by extending his participation in the Association beyond the participation that the Tribunal found he had engaged in the past.
Again this is a question of fact. That finding was open to the Tribunal on the material before it. The Tribunal considered the Applicant’s claim of a well founded fear of persecution, if the Applicant was to resume his involvement with the Association upon his return to his country, and concluded that it did not consider that there is a real chance of persecution in the future. Accordingly this Court has no jurisdiction to interfere.
This ground is rejected.
e) The Tribunal erred in finding that the state protection of the Applicant in India is adequate having regard to the Applicant’s evidence that he was previously “bombed, assaulted and persecuted” because of his activities with the Association
Essentially, the Applicant submitted that the Tribunal was wrong not to believe his claims and came to the wrong conclusion.
As noted by the Tribunal, absolute protection is not required before a conclusion that adequate state protection is available can be reached.
The Tribunal had regard to the principles espoused in Prathapan at 48. The Tribunal noted that, although this judgment was overturned on appeal, the relevant principle espoused by Madgwick J was not the basis of the appeal. Madgwick J identified factors relevant to considering whether the state protection was adequate as including:
“a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering relevant state organs for civil law and order, and human rights.”
The Tribunal considered independent information before it in being satisfied that there is a “fair if slow legal system, a functioning police force, a national human rights commission and a number of human rights organisations.”
Again, the Tribunal’s finding is one of fact and was open to the Tribunal on the evidence before it. Accordingly, this Court has no jurisdiction to interfere.
The ground is rejected.
Conclusion
The decision of the Tribunal is not affected by jurisdictional error. Accordingly, the decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications filed in this Court in respect of each of the applicants are dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 12 September 2005
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