BPX17 v Minister for Immigration

[2017] FCCA 3047

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPX17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3047

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal properly assessed a real risk of significant harm – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

First Applicant: BPX17

Second Applicant: BPY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1149 of 2017

Judgment of: Judge Street

Hearing date: 7 December 2017

Date of Last Submission: 7 December 2017

Delivered at: Sydney

Delivered on: 7 December 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone & Associates

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $4,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1149 of 2017

BPX17

First Applicant

BPY17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 March 2017 affirming a decision of the delegate not to grant the applicants protection visas.

2. The applicants were found to be citizens of India. The first applicant is the wife of the second applicant, and the second applicant has been included as a member of the family unit. The first applicant married the second applicant on 21 March 2009. The first applicant was granted a subclass TU 572 Vocational Education and Training Sector Student visa on 22 June 2009 to study hospitality. The visa expired on 9 September 2011. The applicants have remained in Australia continuously since they arrived in Australia on 30 June 2009.

3. The first application for protection was lodged on 27 July 2011. That was refused on 23 November 2011 and affirmed by the Refugee Review Tribunal on 22 March 2012. Following the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicants were treated as having lodged a valid application for review on the grounds of complementary protection as a result of the second application lodged on 2 November 2012. The delegate accepted that the first applicant was a member of the Jehovah’s Witnesses but found on 8 July 2015 that the applicant failed to meet the criteria for the grant of a protection visa.

The Tribunal’s decision

1. The applicants applied for review on 17 July 2015. The applicants attended a hearing on 17 January 2017 to give evidence and present arguments and were represented by their registered migration agent.

The applicants’ claims

1. The Tribunal set out the background to the application for review. The Tribunal identified the relevant law. The first applicant claimed to fear harm based on her involvement with the Jehovah’s Witnesses. At the time of the application for protection, the first applicant asserted that she left the country because of religious intolerance and the lack of protection offered by authorities. The first applicant referred to her and her husband being converts to the Jehovah’s Witnesses faith and referred to hostility to Jehovah’s Witnesses as a result of which they have to remain clandestine adherents and significantly modify their religious practices including not engaging in preaching activities in order to avoid serious harm. The first applicant said that they would not be able to practice their faith in an open and free manner as they practice in Australia.

2. In relation to the fear of what would happen to the first applicant, the first applicant said:

   Our religious discourse would have to be significantly modified if we return to India to avoid serious harm. Our family and community would not accept our conversion to the Jehovah’s Witness faith and would seek to seriously harm us. We would not be able to partake in core religious practices such as preaching or attending Kingdom hall meetings for fear that our conversion will be discovered by hostile family members or other members of the community who oppose the Jehovah’s Witness faith.

3. The first applicant went on to say:

   As Jehovah’s Witnesses we will face severe discrimination tantamount to persecution in the area of legal protection, employment, inheritance, and education. India remains a largely caste system and as apostates all our rights which are derived from our class will be taken away from us.

4. In supporting material provided by the first applicant, the first applicant attended meetings for Jehovah’s Witnesses identifying meetings to take place at Kingdom Hall, as well as at community locations in Mansfield Park, Kirribilli Park, none of which are interstate. Further, a letter in support of the first applicant’s practise as a Jehovah’s Witness refers to her attending Ferryden Park, Adelaide congregation meetings and makes no reference to proselytizing interstate.

5. The Tribunal accepted that the first applicant was born in Punjab and raised in the Hindu religion and noted that the second applicant makes no claims in his own right. The Tribunal referred to the first applicant having spent the majority of her life in Punjab, India. The Tribunal referred to the first applicant’s experience of walking past the Kingdom Hall at Cheltenham, and then attending the Kingdom Hall in Salisbury. The Tribunal referred to the applicant saying that she increasingly became involved with the Jehovah’s Witnesses and that in 2011 her housemates became aware of her involvement. The Tribunal found the first applicant’s evidence about how her family learned of their involvement in Jehovah’s Witnesses to be a matter of contradictory evidence.

6. The Tribunal made reference to the total number of Jehovah’s Witnesses in India, which has a population of about 1.3 billion, and that they have been in India since 1905. The Tribunal observed that the population of the State of Punjab, in which region the first applicant came from, is about 28 million, and that less than one per cent are the Christian and Jehovah’s Witnesses. The Tribunal made reference to Article 15 of India’s Constitution prohibiting discrimination against any citizen on the ground of religion and that Article 25 guarantees the right to freely profess, practise and propagate religion subject to public order, morality and health.

7. The Tribunal made reference to the Jehovah’s Witness website identifying witnesses are generally free to worship without hindrance in India. The Tribunal made reference to the fact that there were different parts of the country in which Jehovah’s Witnesses experienced opposition and that they had not been detained or had to face false charges. The Tribunal, in the course of its reasoning, also referred to country information in relation to women and referred to country information in relation to relocation, and that it may be a viable option for people in Punjab seeking to avoid certain types of mistreatment.

8. The Tribunal found that that the first applicant had not been subjected to adverse treatment in India that could constitute persecution and that her claims were raised after she came to Australia. The Tribunal referred to the applicant’s evidence that she would wish to continue her practice of Jehovah’s Witness in India, but fears that she may be persecuted by her family, the community and the Indian authorities.

9. The Tribunal identified that in the present case, at issue is whether, in her particular circumstances, there is real risk she would suffer significant harm if she’s returned to India. The Tribunal found notwithstanding concerns in relation to the first applicant’s credibility and motivation for involvement in Jehovah’s Witnesses that the Tribunal accepted that she had been baptised and would be likely to seek to proselytize in line with her religious beliefs if she were returned to India. The Tribunal found the applicant was likely to stay away from her family and found the suggested family threats to be the subject of contradictory details. The Tribunal found there is no indication that family members sought to threaten the applicants with significant harm.

10. The Tribunal also considered whether there is a real risk of significant harm from community members in either of their villages. The Tribunal was prepared to accept that there is a real chance the first applicant would suffer a degree of social ostracism and discrimination, which would include verbal abuse and harassment from conservative Hindus if they came to know she had been a Hindu and had changed her religion to become a Jehovah’s Witness. The Tribunal found the information does not indicate or support a finding that the chance of her facing significant harm for those reasons is more than remote.

11. The Tribunal had regard to the reports of apparent increased intolerance of Witnesses in India disseminated by Jehovah’s Witnesses themselves. The Tribunal made reference to that being particularly prevalent in large cities. The Tribunal referred to submissions concerning anti-conversion laws in some Indian states. Those laws are intended to prohibit conversion of individuals in India by others in India through force or fraudulent means. The first applicant converted outside of India and her conversion would not fall within the purview of those laws.

12. There was reference by the Tribunal to an argument that as a practising Jehovah’s Witness, the first applicant could fall foul of those laws where she was proselytising in a state which had enacted the laws. The Tribunal found, for the reasons it went on to identify, it considered the review applicant can relocate to avoid the effect of these laws.

13. The Tribunal referred to submissions concerning the availability of medical care and the availability of alternatives to blood transfusion as well as lack of awareness of the beliefs of Jehovah’s Witnesses with respect to medical treatment. The Tribunal found the submissions do not support an argument of forced medical treatment and found the first applicant’s alleged deprivation of her economic, social and cultural rights do not constitute inhumane or a degrading treatment or amount to significant harm.

Relocation

1. The Tribunal found that to the extent that the first applicant faces a risk of harm the Tribunal considered that the applicant could ameliorate that by a relocation to another part of Punjab or another part of India. The Tribunal found that it would be reasonable for the first applicant to relocate in the circumstances given her education and being a married woman and having the protection of her husband and the languages she speaks. The Tribunal found the chance of the applicants being pursued or located by a family member, relative or community member from their home areas appears to be remote and far-fetched.

2. The Tribunal found the applicants’ claims in relation to being traced were speculative and that there is no clear evidence to indicate that family members, relatives, or community members from their home areas would actively take steps to locate them and subject them to significant harm outside of their own villages.

3. The Tribunal referred to the anti-conversion laws and that those laws only exist in six states and that they do not exist in 22 other states in India and, in particular, they do not exist in Punjab nor in Haryana or Delhi, to which the Tribunal formed the view the applicants could reasonably relocate.

4. The Tribunal found, having regard to the applicants’ claims singularly and cumulatively, that the Tribunal did not accept there is a real risk the first applicant would suffer significant harm outside the Punjab as a necessary and foreseeable consequence of being removed from Australia to India.

5. The Tribunal found the first applicant did not satisfy the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

1. The ground in the application is as follows:

   Ground 1

   The Second Respondent committed a jurisdictional error by applying the incorrect test for determining what amounts to a real risk of significant harm.

   Particulars

   1. At paragraph 27 of the decision record, the Second Respondent concluded at para 83 of the decision record that this risk could be ameliorated by her relocation to another part of Punjab or another part of India.

   2. The Second Respondent failed to consider the Integra of the Applicants claims that as a Jehovah's Witness she would be involved in evangelical-style preaching, which cannot be restricted or discerning as to whom or where she conducts her proselytising activities.

   3. Being discerning or limiting her proselytising activities to certain part of India or states as determined by the Second Respondent would amount to unreasonable restriction and render proper/effective adherence to her faith untenable.

2. Mr Jones of counsel skilfully argued that the first applicant on the reasoning of the Tribunal would have to suppress an attribute of her religion in her desire to proselytise because of the existence of the anti-conversion laws in six of the 22 states. Mr Jones argued that the applicant wished to proselytise pan India. No such claim was made by the first applicant that she wished to proselytise pan India.

3. On a fair reading of the first applicant’s claims they were identifying a desire by the first applicant to practise her religion in and around her community and there is no basis for suggesting that the first applicant was the subject of an attribute of her religion that she had to travel to the six states that had anti-conversion laws in order to practise her religion. Mr Jones skilfully argued that because the real chance and real risk test are the same it should follow that the principles in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 in respect of persecutory harm had direct application to the issue of significant harm under s 36(2)(aa). Significant harm is defined by s 36(2A). I do not accept the submission that S395 has direct application in terms of the suppressing of an attribute to the determination of complementary protection.

4. In any event, in the present case the first applicant’s claim was not that she wished to practise or proselytise her religion throughout India and, whilst the Tribunal identified the capacity of the first applicant to be able to relocate, and that they could reasonably do so, no error was made by the Tribunal in the application of the significant harm test in determining whether or not the applicants were entitled to complementary protection.

5. I reject the submission that this Court is the subject of binding authority because of the reference to the real chance and real risk tests being the same in respect of the argument being advanced by Mr Jones that persecutory harm must therefore necessarily fall within the complementary protection assessment in respect of significant harm. Further, in the present case, as a matter of fact, the first applicant did not advance a claim that she would proselytise pan India. The first applicant’s activities in her practice of her religion were apparently community or local-based on the material before the Tribunal.

6. No such pan India claim could fairly be said to arise on the material before the Tribunal.

7. The first applicant would not be suppressing an attribute of her religion by not going to a state that has anti-conversion laws. The adverse findings by the Tribunal are not the subject of any jurisdictional error by applying the incorrect test. No jurisdictional error is made out by Ground 1.

8. As the ground in the application fails to establish any jurisdictional error, the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  23 January 2018