Applicant S100 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1364

FEDERAL COURT OF AUSTRALIA

Applicant S100 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1364

MIGRATION – Refugees – Application remitted from High Court - Application for constitutional writs and extension of time in which to serve constitutional writs – Application six months out of time – Applicant feared persecution from Naxalite groups in India – Country information – Country information sufficient to form reasonable basis for Delegate’s findings – Internal protection principle – Effective protection - Relocation - Delegate did not give due and proper consideration to whether the applicant could relocate within India – Reasonableness of relocation within country - Degree of examination required by Delegate – Extension of time refused – Application dismissed.

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 approved
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 discussed
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 discussed

APPLICANT S100 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N830 of 2004

TAMBERLIN J
SYDNEY
26 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N830 OF 2004

BETWEEN:

APPLICANT S100 OF 2004
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MS DANUTA SZUSKIEWICZ
DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

26 OCTOBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time is refused.

2.The application to amend the terms and grounds of the order nisi is refused.

3.The application for an order nisi is dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N830 OF 2004

BETWEEN:

APPLICANT S100 OF 2004
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

MS DANUTA SZUSKIEWICZ
DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	26 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order nisi seeking an order that the respondents should show cause why constitutional writs should not be issued seeking prohibition against the first respondent (“the Minister”), certiorari against the second respondent (“the Delegate”) and a writ of mandamus against the Refugee Review Tribunal requiring a rehearing and redetermination.  The application was filed in the High Court and was remitted to this Court.  The applicant also seeks an extension of time within which the applications for mandamus and certiorari can be filed to 30 March 2004.  The Delegate’s decision refusing a protection visa which is under challenge was given on 20 March 2003.  The application is more than six months out of time.

2. The application is based on two grounds.  The first ground is that the Delegate exceeded jurisdiction in drawing conclusions of fact on critical matters upon which the decision turned, and that these findings were not open on the material before the Delegate and were not supported by logical grounds.  Two particulars are given of this first ground, namely that country information cited by the Delegate could not support a finding that the applicant had effective protection against threats from a Naxalite groups, and that it was not open to the Delegate to conclude that the police and authorities were not infiltrated by Naxalite members.  The second particular is that the country information could not support a finding that the applicant could relocate to one of the Indian states where Naxalite groups or supporters will not pose a threat of persecution.  The second ground is that the Delegate failed to exercise jurisdiction by not giving genuine, proper and realistic consideration to an integer of the prosecutor’s case, namely, the prosecutor’s ability to relocate.

3. When the matter came on for hearing, the applicant sought to file an amended application for orders, based on quite different grounds to those set out in the original draft order nisi which had been filed, and upon the basis of which the respondents had made written submissions.  Counsel for the respondents objected to the filing of the amended draft order nisi in view of late notice of the new grounds but did not seek an adjournment.  The respondents did not point to any prejudice, and since they were in a position to meet the amended grounds, despite the very short notice, I decided to allow the application to be amended in the form of the amended draft, which I have referred to above, subject to reservations of costs and any application.

   COUNTRY INFORMATION

4. The gravamen of the applicant’s case is that the Delegate fell into jurisdictional error in reaching her conclusions on the basis of country information from sources other than the applicant, which was not capable of supporting her findings.

5. In the course of her reasons, the Delegate set out the country information to which she had referred, and on the basis of which she had made her decision, including specific extracts.  The part of the finding that is challenged under the first ground (on the basis that they are not open on the material or supported by logical grounds) are set out in section 6, which reads as follows:

   “Is the fear of Convention-based persecution well-founded?

   In assessing the existence of a well-founded fear, reference should first be made to the language of Article 1A(2).  A test of whether there is a well-founded fear in the objective sense is whether there is a real chance of persecution upon return to the relevant country.

   The applicant’s claims are presented at folios 14-19 of file CLF2003/13994.

   The applicant’s claims of persecution are based on revenge against his family (and most particularly him) from the relatives of a man who was killed by the applicant’s father in the course of the applicant’s father’s duties as police sub inspector.  This man’s family are Naxalite based and they killed the applicant’s father and have threatened the applicant.  The applicant claims his mother was also killed in a politically motivated killing but he does not expand on this.  The applicant also states he is a member of the Congress Group but does not advance claims in this respect.  By inference however it appears he fears that state protection will be inadequate as the Congress Party is no longer in power and the Naxalites have infiltrated all areas of police and government.

   While the applicant may hold a subjective fear of persecution, and their threats have frightened him to the extent that he left India, country information indicates that there is effective protection against threats from Naxalite groups and that the government’s commitment to protection of its citizens is real:

   06/03/00

   CENTRE CHALKS OUT NEW STRATEGY TO COUNTER NAXAL MENACE

   New Delhi – The Centre has decided to provide a battalion of India Reserves Battalions  (RIB) to each of the five naxalite-affected states to fight the Left-wing violence.  Andhra Pradesh, Bihar, Orissa, Madhya Pradesh and Maharashtra have witnessed a renewed spurt of naxalite attacks in recent months.

   One RIB battalion will be placed at the disposal of each of the five states.  In addition local police force will be provided modern weapons, communication and monitoring equipment as part of a new operational strategy, Home Secretary Kamal Pande said after a day-long meeting of Coordination Centre set up to contain naxalite activities.

   Pande, chairman of the Centre, said senior officials of the affected states stressed for aerial survey of the affected zones and it was agreed that a re-look at aerial photography will be taken.  Pande said there are indications that some Left-wing extremist groups particularly those near the Indo-Nepal border were getting support from Pakistan’s intelligence agency, ISI.

   He said though there were no hard facts with him on this but the government had been receiving reports for the last two years about the nexus between the ISI and left-wing groups particularly People’s War Group (PWG) and Maoist Communist Centre (MCC) which have a manpower strength of 5,000 and 2,000 respectively.

   In view of heightened pattern of leftwing violence, Home Minister L. K. Advani would convene a meeting of Home Ministers of the five states soon to work out a development plan.  At the two-day meeting held in the capital, it was decided that a continued thrust on vigorous intelligence sharing would be given.  The forces engaged in anti-naxalite operations would also be kept in a strong state of alertness.

   More funds would be allocated under the scheme to modernisation of police force to help the states getting better-equipped against the extremist elements.  On the possibility of extremists being trained to use modern weaponry and guerrilla warfare, Pande said police forces would have to be trained and equipped in smashing such training centres.

   The Home Secretary added that Bihar was the worst affected state followed by Madhya Pradesh, Andhra Pradesh, Orissa and Maharashtra.

   (C) India Today web site CX42299.

   and

   BBC News
   29 November 2002

   By Sampath Kumar
   BBC reporter in Madras

   INDIAN STATE CRACKS DOWN ON LEFTISTS

   Police in the southern Indian state of Tamil Nadu are determined to stamp out a group of ultra-leftist rebels.

   They have spent their sixth day scoring the Uthangarai forest area of Dharmapuri district, 300 kilometres (200 miles) from Madras, for escaped members of a Naxalite group.

   Naxalites believe in violence as the means of achieving equality and social justice.

   The movement started in West Bengal and is active in the neighbouring states of Andhra Pradesh, Madya Pradesh and Bihar.  CX70560

   The applicant may hold subjective views that police and authorities are infiltrated by Naxalites and that they are unwilling to protect him should he report threats or attempts on his life however this is not borne out by country information.

   Alternatively the applicant can re-locate to one of the Indian states where Naxalites are not active.

   Consequently I find that the applicant’s fear of Convention based persecution is not well-founded.”

6. Counsel for the applicant contends that on a proper reading of the country information quoted above, it is not possible to conclude that there was effective protection against threats to the applicant from Naxalite groups. 

7. It is common ground that the quoted material evidences a willingness on the part of the authorities and the police to take steps to protect communities against Naxalite activities and that a commitment has been made to take such action.  It is also common ground that there is, in the view of the authorities, a Naxalite threat and the Naxalites believe in violence as the means of achieving what they see as equality and social justice.

8. One significant difficulty with the applicant’s submission in this respect is that, in addition to the material which is specifically quoted, the reasons indicate that the Delegate has had recourse to material from the United States Department of State Country Reports on Human Rights Practices, India, 2002.  There is no material before me to show what is in this country information.  The Delegate has also referred to the Departmental file relating to the applicant and the folios referred to by her set out the application for a protection visa and the applicant’s claims.

9. The Delegate held that while the applicant may hold a subjective fear of persecution, and that the threats by the Naxalite group may have frightened him to the extent that he left India, she was of the opinion that the inference from the country information was that there was effective protection provided against threats from Naxalite groups, and that the government’s commitment to protect its citizens was real.  The existence and sufficiency of protection is a question of fact and degree.  The material quoted by the Delegate, on a fair reading, leaves it open to reasonably conclude that the efforts made to provide forces and take measures to fight left wing violence, in the five states in which Naxalite activities are carried out, is real and sufficient.

10. It should be noted that the applicant’s claims of persecution were in substance based on anticipated revenge against himself and his family by the relatives of a man with Naxalite associations who had been killed by the applicant’s father in the course of the father’s duty as a police sub-inspector.  The Delegate’s reasons indicate some real doubts about the applicant’s version of events because he did not expand on a claim that his mother was killed in a politically motivated killing.  Nor did he explain how it was that he was persecuted because he was a member of the Congress group. 

11. In my view, a fair reading of the material quoted by the Delegate, together with the fact that the applicant does not refer to the contents of the United States Department of State Report on India, leads to the conclusion that there was no error in the Delegate’s finding that the protection afforded against threats from Naxalite groups was effective protection.

12. The applicant’s submission that there was not sufficient material in the quoted country information to justify a finding that there was effective protection is founded on the premise that there needs to be an assurance in the mind of an applicant that in fact there will not be any persecution.  In the present case although the material, in the applicant’s view, could establish both willingness and active steps to eliminate the risk of Naxalite violence there remains a real and substantial doubt whether the willingness and the measures proposed by the authorities will actually protect him.  Therefore, he can be said to have a reasonable basis for his unwillingness to be returned to India.

13. The difficulty faced by this submission is that the principle of effective protection does not require an absolute protection from Convention persecution.  As the High Court recently stated in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [26]-[27]:

    “[26]             No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence.  Day by day, Australian courts deal with criminal cases involving violent attacks on person or property.  Some of them may occur for reasons of racial or religious intolerance.  The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people.  Their response was unlawful.  The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.  None of the country information before the tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.

    [27]              In fact, there was no evidence before the tribunal that the first respondent sought the protection of the Ukrainian authorities, either before he left the country or after he arrived in Australia.  According to the account of events he gave to the tribunal, he made no formal complaint to the police, and when the police interviewed him after the first attack, he made no statement because he could not identify his attackers.  The tribunal considered the response of the police on that occasion to be appropriate.  It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system.  That was not the case that the first respondent was seeking to make.  The country information available to the tribunal extended beyond the case that was put by the first respondent.  Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom.”

14. In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [29]-[30] it is said:

    “If there is a persecutor of a person or group of people, who is a ‘non-state agent of persecution’, then the failure of the state to intervene to protect the victim may be relevant as to whether the victim’s fear of continuing persecution is well-founded.  That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it.  But that does not exhaust the possible relevance of state inaction.”

15. In the present case, the authorities cannot be said to be tolerant or condoning the violence of the Naxalite groups.

16. The measures evidenced by the quoted country information indicates that if protection were to be sought against Naxalite violence then it is likely to be provided, given the expressed willingness and also the positive commitment taken by the authorities to eliminate violence by the Naxalite groups. 

17. In response to this approach, the applicant contends that the authorities and the police are infiltrated with Naxalite supporters, and therefore such protection is only nominal, and in fact in his case no action was taken.  However, this is an assertion by the applicant and there is no material to evidence that this is correct.  When resolving the conflict between the applicant’s assertions and the indications in the country information quoted, I consider that it was open to the Delegate to reject the applicant’s assertions and to prefer the country information and conclude that the applicant’s fear of persecution if returned to India was objectively not well-founded.  The country information was, in my view, sufficient to permit a reasonable inference that the governmental authorities in India would if requested take measures to protect the applicant from Naxalite violence or persecution given the clear commitment by the authorities to the elimination of such groups and their violent activities.

18. Accordingly, this ground of challenge is not made out.

    RELOCATION

19. The Delegate in her decision makes the bald assertion that the applicant can relocate to one of the Indian states where the Naxalites are not active.  The applicant contends that he will not be safe anywhere in India because the Naxalites have agents’ groups and members in all parts of India and have strong links all over the world and that it may be difficult to survive in India. 

20. The material quoted by the Delegate indicates that the Naxalite violence occurs and the groups operate in five Indian states.  The material is silent as to its operation or non-operation in other states but it would be open on the material in my view, to infer that the Naxalite groups were not considered by the authorities to be “active” in other states.  In order, however, to consider this question, it was necessary for the Delegate to conclude in all the circumstances that it would be reasonable to expect that an applicant could, would or should relocate to another part of India.  A decision should be made and material examined in order to determine this question of reasonableness in relation to relocation.  As Black CJ said in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442:

    “… Given the humanitarian aims of the Convention, this question was not to be approached in a narrow way and, in her further analysis, the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.

    The further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which the protection is available is not reasonably accessible to that person.  In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.

    Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality …

    If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of a country of nationality it may be said that, in a relevant sense, the persons’ fear of persecution in relation to that country as a whole is well-founded.”

1. In the present case, the Delegate made no attempt to consider this question of the reasonableness of any relocation, notwithstanding that the applicant had claimed that it would be unreasonable to expect him to return to other parts of India, and gave reasons for this view, even though he did not furnish any independent material on this issue.  The important question of reasonableness of relocation and an examination of the possibility of relocation were questions not considered by the Delegate.  There is simply the brief assertion of her conclusion that the applicant can relocate to other parts of India.  In my view, this approach does not address or deal with the applicant’s claim and I consider that there has been a failure to exercise jurisdiction in relation to the relocation claim.

   CONCLUSION

2. In the final analysis, the relocation argument is an alternative basis upon which the Delegate seeks to justify her decision.  In light of my earlier reasons, it was open to the Delegate to conclude that the applicant had failed to make out the underlying claim that there was any real chance of Convention based-prosecution.  Accordingly, the application must be dismissed with costs.

3. The appropriate orders therefore are that the application for an extension of time is refused.  The application to amend the terms and grounds of the order nisi is refused.  The application for an order nisi is dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin..

Associate:

Dated:            26 October 2004

Counsel for the Applicant:	Cameron Jackson
Counsel for the Respondent:	Victoria A Hartstein
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 October 2004
Date of Judgment:	26 October 2004