Chopra, Dilip v Minister for Immigration

[1997] FCA 1532

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 920 of 1996

BETWEEN:	DILIP CHOPRA APPLICANT
AND:	MINISTER FOR IMMIGRATION RESPONDENT

JUDGE:	LOCKHART J
DATE:	5 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application by Mr Dilip Chopra for review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 7 November 1996.  The Tribunal affirmed the decision of the delegate of the respondent that Mr Chopra, his wife and his two children are not refugees.

Mr Chopra and his family are Indian nationals who first arrived in Australia on 26 November 1984.  On 14 February 1994 Mr Chopra lodged an application for refugee status which was the subject of the proceedings before the delegate and the Tribunal.

The Tribunal's reasons for its decision are comprehensive and I need not refer to them in detail.  The Tribunal noted that a criterion for the grant of a Protection Visa, being the relevant visa, is that at the time of the decision the applicant is a non-citizen of Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The relevant part of Article 1 of the Refugees Convention defines a refugee as any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

The Tribunal noted that to come within that definition an applicant must: firstly, be outside his or her country of nationality; secondly, have a well-founded fear of persecution; and, thirdly, that the persecution feared must be for one of the five Convention reasons of race, religion, nationality, membership of a particular social group or political opinion.  Finally, the Tribunal noted the applicant must be unable or unwilling, because of his or her fear, to avail himself or herself of the protection of his or her country.

The Tribunal reviewed the well-established authorities relating to what is a well-founded fear of persecution under the Convention and noted that such a fear is established if the person has a genuine fear founded upon a real chance of persecution for a Convention reason.  A real chance, the Tribunal said, is one that is substantial, but not remote or a far-fetched possibility; and it referred to the various cases which establish those principles.  The Tribunal noted that the question of whether an applicant faces a real chance of persecution if returned to his or her country requires the Tribunal objectively to examine the facts and to consider the matter in relation to the reasonably foreseeable future.

The term "persecution" is not defined by the Convention but not every threat of harm or interference with a person's rights for a Convention reason constitutes being persecuted.  The Tribunal noted that Mason CJ held, in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 388, that persecution necessarily involves:

“some serious punishment or penalty or some significant detriment or disadvantage.”

The Tribunal relied on other passages from Chan's case.

The applicant has claimed before the Tribunal that he feared he would be harmed by those of the Muslim faith should he return to India.  The applicant had suffered past harm at the hands of the Muslims and he believed that they would try to do him harm again if he should return.  That was his case before the Tribunal.  The Tribunal noted that the applicant lived in India for most of his life and is of the Hindu faith.

On 11 February 1970 the applicant was shot at by unknown persons; he believed this was an attempt to murder him by Muslim fanatics. In October 1973 people entered the applicant's shop, in which he conducted a business of trading in gems, and took out knives and then assaulted staff and snatched goods.  They shouted anti-Hindu slogans.  The applicant asserted that he had difficulties in trying to run his business because much of the gem trade is based in Old Delhi and controlled by Muslims in that city.  When he attempted to trade with Muslims they refused.

The Tribunal noted that the applicant claimed that he was a long-time member of the Hari Krishna movement in India and believed that was one reason why he had been identified by Muslims.  He also claimed that he had been involved with Rashtriya Swayamsevak Sangh (“RSS”) whilst living in India.  RSS is a Hindu revivalist organisation and the applicant asserted that he was well-known for his role with RSS in his home state of Uttar Pradesh.

He said that he frequently travelled in the course of his business from his home city to Bombay. If it was announced that he was coming to Bombay for a meeting, a group of about 10-15 Muslims would gather and shout and hurl stones at him.  He claims that he was pinpointed by Muslims because of his association with the RSS; and on one occasion was hit on the head by a stone.

The applicant was also involved in a car accident on 26 June 1978.  His family were travelling in a car which was hit by a truck.  The applicant and his daughter were seriously injured.  The applicant believed that the truck was driven by Muslim fanatics and they were trying to kill him and his family.  The applicant reported the details of the accident to the police but they took no action against the offender.  The applicant believes that this is an example of discrimination suffered by Hindus in India. 

The Tribunal noted that after the applicant’s arrival in Australia his gem trading business was robbed in Sydney.  The police were unable to trace the people responsible but the applicant believed they were Muslims who were out to ruin him.  The wife of the applicant also gave evidence before the Tribunal.  She indicated that she had nothing to add to the applicant's evidence but that she was scared for herself and her children if they were forced to return to India.

The Tribunal noted the various pieces of evidence that had been presented before it by the applicant, and indeed other evidence, regarding relevant matters.  The Tribunal drew a number of conclusions.  It accepted that the applicant was shot at in 1970;  that his business was robbed in 1973 and that he was involved in a car accident in 1978.  All of those events occurred in India.  The Tribunal also accepted that the applicant's business was robbed in Australia.  The Tribunal did not accept, however, that those events were the work of Muslim fanatics aimed at eliminating the applicant, as he has claimed. 

The Tribunal said it was clear from the applicant's evidence that he believed that any difficulty encountered was the fault of the Muslim community.  In relation to the robbery in Australia, the Tribunal said that there was simply no evidence that this was the work of anyone other than thieves who wished to steal from the applicant.  It said that his reasons for believing that the act was committed by Muslims appear only to be based on his own prejudices.  Likewise, the Tribunal said the events in India appeared on their face to be unrelated and very unfortunate experiences over a considerable period of time; however they were not directed at the applicant because of his religious or political views.

Before the Tribunal the applicant made claims in relation to political activity involving the RSS which he had not earlier advanced.  The Tribunal said it did not believe the claims to be true but rather an attempt by the applicant to give a clearer politico-religious focus to his application in the face of the rejection of his earlier claims by the Minister's delegate. 

The Tribunal did not accept that the applicant was associated with the RSS; nor did it accept that the groups would protest against him in Bombay and throw stones at him whenever he travelled to the city on business.  The Tribunal noted that, in relation to the applicant's general fear regarding tension between the Muslim and Hindu communities in India, it was clear that considerable tensions do exist within Indian society between religious groups.  The enmity between Hindu and Muslim groups and individuals is long-standing and does result in serious levels of violence between the communities.

The Tribunal noted that there was little doubt that this history of struggle between Hindus and Muslims in India is still being played out today.  The Tribunal said that during certain riots which occurred in late 1992 with the tragic death of many people, the Indian Government took considerable action to stem the violence which was occurring, including the use of large numbers of army and border security forces in an attempt to combat the violence, the dismissal of three State Governments that were thought to have encouraged the destruction of a particularly sacred mosque by the Central Government, and the passage of legislation banning the activities of some fundamentalist Hindu organisations.

The Tribunal accepted the applicant's claim that the relevant violence would not be entirely eliminated and may recur in the future.  It also accepted that the on-going religious tensions between the communities in India could make one feel unsafe and unsettled. 

The Tribunal said that, in its view, the fear that generalised communal violence may at some point in the future affect a person does not constitute a well-founded fear of persecution as required by the Refugees Convention, and it applied a passage from the judgment of Wilcox J in Periannan Murugasu v The Minister for Immigration and Ethnic Affairs, unreported, Federal Court, 28 July 1987, which was adopted by McHugh J in Chan's case at 430.

The Tribunal noted the distinction drawn by Wilcox J between patterns of persecution and patterns of communal violence even where communal violence results in serious harm. Recurring patterns of violence between groups within a community will not constitute persecution unless they form part of a course of systematic conduct.  The Tribunal noted, amongst other things, that those who are members of the Hindu faith in India formed by far the majority religion in the country.  It found no material which indicated that those who follow the Hindu faith are discriminated against by police or government in the performance of their duties, such that the result could be considered persecutory.  The Tribunal elaborated on those findings. 

Considering all the material before the Tribunal, the Tribunal did not accept that the applicant holds a well-founded fear of persecution should he return to India.  The Tribunal did not believe that the unfortunate experiences, and indeed they are, which the applicant has had in the past can be realistically attributed to a plot by Muslims to harm him.  The Tribunal said that whilst the applicant has not been affected by communal violence in the past, it is possible that further violent incidents could occur in the future in India.  However the Tribunal believed that such violence as occurred in late 1992, to which I referred, reflects patterns of communal conflict rather than persecution, and that therefore a fear of harm resulting from such acts cannot properly be said to be a well-founded fear of being persecuted.

Furthermore the Tribunal said where such acts have occurred in the past, they have often been acts of the Hindu majority, the faith to which the applicant adheres, directed at the Muslim minority.  Considered in total, the Tribunal said it was not satisfied that the applicant was a person to whom Australia has protection obligations and therefore he was not entitled to the grant of a Protection Visa.  The Tribunal thereupon affirmed the delegate's decision and said that the applicant and members of his family included in the application were not entitled to the grant of Protection Visas. 

The applicant has challenged the findings of the Tribunal on a number of grounds which are set out in his application for review and in his affidavits filed in support of the application which I have read.  His grounds are summarised in his written submissions which I have had the benefit of reading earlier today. 

One ground that he advances is that there was no decision in law because the member of the Tribunal who constituted the Tribunal for the purposes of his review was not in fact validly appointed to the position of hearing his review.  I have already dealt with that submission when considering an earlier adjournment application made today by Mr Chopra and I adhere to what I said there and need not repeat it.  I rejected the submission as unsound. 

Mr Chopra has also submitted that the Tribunal has contravened s 420 of the Migration Act 1958 (Cth) in that the Tribunal did not act according to substantial justice and the merits of the case as s 420 requires. That this may be a ground of review under s 476(1)(a) is now established.

I am not persuaded that any of the matters to which I have been referred as constituting a failure to comply with s 420 have been made out.

The essential attack of Mr Chopra is that the Tribunal did not take the proper steps to find out why he had a well-founded fear of persecution.  I have quoted extensively from the Tribunal's reasons which bear upon that ground of attack upon it’s findings, but I have by no means quoted all the findings of the Tribunal, although I have of course considered them and taken them into account.  I am not persuaded that the Tribunal committed any error of law in the approach it took to the issues before it including the question of whether or not Mr Chopra had a well-founded fear of persecution.

It must be remembered that this court in reviewing decisions of the Tribunal is not a body that can substitute its own views on the facts from those reached by the Tribunal.  The Court is empowered to deal with questions of error of law and I am not persuaded that any of the attacks made upon the decision of the Tribunal have been made out.  Accordingly, the application for review is dismissed.

The Minister seeks costs against Mr Chopra.  Mr Chopra has mentioned a number of matters which he says as a matter of discretion should be exercised against ordering him to pay costs.  Whilst I indeed have a degree of sympathy with Mr Chopra and his predicament, I am afraid that nevertheless the Court’s discretion must be exercised reasonably according to law, and this militates in favour of an order for costs.  Accordingly the Court directs the applicant to pay the Minister's costs of this proceeding for review, including reserved costs if any.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lockhart

Associate:

Dated:             5 December 1997

Applicant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 1997
Date of Judgment:	5 December 1997