Applicant A119 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 245
•4 MARCH 2004
FEDERAL COURT OF AUSTRALIA
Applicant A119 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 245
Migration Act 1958 (Cth) s 36(2)
Plaintiff S 157/2000 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 referred to
APPLICANT A119 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, SUE ZELINKA, MEMBER, REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
S 694 of 2003
MANSFIELD J
4 MARCH 2004
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 694 OF 2003
BETWEEN:
APPLICANT A119 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTSUE ZELINKA, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
4 MARCH 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay to the first respondent costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 694 OF 2003
BETWEEN:
APPLICANT A119 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTSUE ZELINKA, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE:
MANSFIELD J
DATE:
4 MARCH 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This application, instituted in the High Court on 28 February 2003, seeks prerogative orders in substance to set aside a decision of the Refugee Review Tribunal (the Tribunal) given on 2 January 2003 and to direct the Tribunal to hear and determine the application before it according to law. On 11 June 2003 the High Court remitted the application to this Court for further hearing and determination.
The Tribunal's decision affirmed a decision of a delegate of the respondent of 4 June 2002 that the applicant was not entitled to a protection visa for which he had applied on 29 October 2001, soon after his arrival in Australia. To be eligible to be granted the visa, it was necessary that the delegate and, on review, the Tribunal be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention): see s 36(2) of the Migration Act 1958 (Cth).
The applicant is an Indian national. He claimed to have a well-founded fear of persecution in India by reason of his religion. He is an active practising Catholic. Since 1994 he has worked for the Catholic Church in Tamil Nadu, involving construction, maintenance and repair of its buildings. He had been born and raised a Catholic and was active in Christian movements whilst at university.
He claimed that since the advent of the BJP government in India in about March 1998 he began to experience persecution or detriment by reason of his religion. He claimed that there was an increasing pro-Hindu sentiment of the national government, permitting discrimination against non-Hindus to take place. He told the Tribunal that he feared being targeted because of his Christian activities, which included pastoral visits to hospitals, prisons and other institutions in his local area. He also claimed to have been targeted by Hindus because he was a person who sought to convert Hindus to Christianity.
Despite those general claims, he made only one report of a particular incident of harassment since 1998. It occurred in November 2000. The Tribunal accepted his version of events. He was driving a car near a convent, when he was stopped and threatened. He thought that he could have been threatened then by fundamentalist Hindus because of his Christian religion. Soon after being stopped, a police siren was heard approaching the scene and those attacking him scattered. No harm came to him. However, he maintained the view that those in authority do not seek to protect Catholics in his region from religiously motivated mob violence.
The Tribunal noted that the applicant lives in a majority Christian district and can move within his particular community without fear or restriction. He can practise his religion. He has lived in that area for 30 years or more without any adverse experience apart from the occasion in November 2000. The Tribunal found as to that incident that, although there is independent evidence that there are groups of fundamentalist Hindus who attack members of minority religions, the fact that the mob scattered as soon as they heard the police siren indicates that the mob knew its actions to be illegal and not to be sanctioned by the Tamil Nadu government, to whom the police would belong. It is said that the mob therefore knew that there was no support by the Tamil Nadu government for any religiously motivated violence they might be pursuing. It regarded the event as a random event and one in respect of which, in any case, the applicant had available state protection.
The Tribunal accepted that there is, and has been, communal violence in India, primarily between Hindus and Muslims, but on some occasions directed towards Christian communities. It accepted that there is some ground for the applicant's apprehension about tensions between Hindu fundamentalists and Christians in general. However, it did not regard the applicant as having a well-founded fear of persecution by reason of his religion in the state of Tamil Nadu. It is a state which, on the independent country information, is a part of the southern part of India, which is noted as being actively secular and pro-minority. Its government is active in keeping the peace and protecting its citizens. None of the anti-Christian incidents reported in the independent country information about India occurred in the state of Tamil Nadu.
Accordingly, whilst the Tribunal accepted that there is some anti-Christian communal violence in India, it did not accept that in the state of Tamil Nadu, where the applicant lives, there is a real chance that he may be vulnerable to such anti-Christian violence from Hindu fundamentalists. It also found that in that state, even in the event of such violence, the state is prepared to and offers meaningful state protection in keeping the peace and in protecting its citizens.
Accordingly, it was not satisfied that the applicant had in the past suffered any detriment by reason of his religion or for any other Convention reason and it was not satisfied that in the reasonably foreseeable future he might suffer any detriment by reason of his religion. Consequently, it was not satisfied that he has a well-founded fear of persecution for a Convention reason if he returns to India.
Counsel for the applicant contended that the Tribunal had erred in failing to address whether the applicant had a well-founded fear of persecution if he were to return to India, because it focused only upon his local community. The submission was based upon a particular passage in the Tribunal's reasons in which it noted, on the basis of the applicant's own evidence, that he lives in a majority Christian district, that he is able to live in his own community without fear of harm, that his family is able to live in safety and that he is not prevented in any way from pursuing his own religion. He complained, however, that he could not move outside his community and pursue his career without fear of such violence from Hindu fundamentalists. It was submitted that the Tribunal had not addressed that claim.
If the Tribunal had failed to address an integer of his claim to be a person having a well-founded fear of persecution for a convention reason, that failure would amount to jurisdictional error on its part. See Plaintiff S 157/2000 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. However, in my judgment the Tribunal did not fail to appreciate the applicant's claims or to address them.
The reference in that passage of its reasons to the applicant's own community is, as his counsel acknowledged, a reference to his local community or local village rather than to the state of Tamil Nadu itself. Whilst noting that part of the applicant's evidence, the Tribunal did in fact address his claims in relation to his ability to live and work generally in the Tamil Nadu state. It made findings, recorded above, that within the Tamil Nadu state the applicant did not have a well‑founded fear of persecution for a Convention reason. The applicant did not give any evidence that he needed to, or intended to, leave the Tamil Nadu state to move to other parts of India. In those circumstances the Tribunal did not need to address his claims to have a well-founded fear of persecution beyond his participation in the life of the Tamil Nadu state.
In my judgment no jurisdictional error on the part of the Tribunal is demonstrated. Accordingly, the application must be dismissed. I so order. I order that the applicant pay to the first respondent costs of the application.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 15 March 2004
Counsel for the Applicant: M W Clisby Solicitor for the Applicant: Mark Clisby Counsel for the Respondent: K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 March 2004 Date of Judgment: 4 March 2004
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