Lal v Minister for Immigration and Multicultural Affairs

[2000] FCA 1707

FEDERAL COURT OF AUSTRALIA

Lal v Minister for Immigration & Multicultural Affairs [2000] FCA 1707

RAM LAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 2 OF 2000

MANSFIELD J
27 NOVEMBER 2000
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 2 OF 2000

BETWEEN:	RAM LAL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	27 NOVEMBER 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        The applicant pay to the respondent costs of the application to be taxed.

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 2 OF 2000

BETWEEN:	RAM LAL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE:	27 NOVEMBER 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 10 December 1999.  The Tribunal affirmed a decision of a delegate of the respondent given on 31 July 1997 to refuse to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (“the Act”). To be eligible for the grant of that visa, it was necessary for the applicant to satisfy the delegate of the respondent (and on review the Tribunal) that he was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”): ss 36(2) and 65 of the Act.

2. In practical terms, for the purposes of this application, the applicant had to satisfy the delegate of the respondent (and on review the Tribunal) that he was a “refugee” as that term is defined in Article 1A(2) of the Convention, namely that he is a 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 is nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”

   BACKGROUND

3. The applicant is a citizen of India.  He was apparently born on 7 June 1946 in the Jalandhar district in Punjab, and was brought up in that area.   He arrived in Australia on 12 November 1996, travelling on a passport validly issued on 15 December 1992.  He left India by way of New Delhi Airport legally and in the normal manner.  He applied for the protection visa on 11 December 1996.

   THE TRIBUNAL’S REASONS

4. After reciting at some length the applicant’s claims as set out in written submissions to the Department of Immigration and Multicultural Affairs, in written submissions to the Tribunal, and in oral evidence to the Tribunal, the Tribunal identified the applicant’s claim as being a fear of persecution because he had converted to Christianity.

5. The Tribunal noted the history as claimed.  The applicant had been born into a Hindu family in the Punjab, and his parents were of the Sikh religion.  At school he joined Rashtriya Swayamsevak Sangh (“RSS”).  He supported the Sikh religious and political demands, and was concerned that Hindus did not support those demands and in fact suppressed them with “draconian laws and brutal state suppression”.  He observed over time that neither Hindus nor Muslims were adhering to their religion, and were killing innocent people.  Because of this perceived hypocritical cruelty, he decided to practise the Christian religion.  He was baptised a Christian on 1 January 1990.

6. The applicant then claimed that he suffered various forms of harassment or persecution following his conversion to Christianity and his proselytizing.  The Tribunal did not accept that he suffered harassment or persecution for that reason.  He was never charged with an offence, or imprisoned, as a result of any charge relating to proselytising.  He was issued with his passport in his own identify on 15 December 1992 in his home district of Jalandhar, so the Tribunal concluded that he had not then come to the adverse attention of the Indian authorities.  It found that his claim that he was in fear of his life and that fundamental Hindus were following him around to kill him was not made in a timely manner, and was untrue.  It found that he did not proselytise as a Christian missionary.  It was not satisfied that the applicant had even the most basic working knowledge of Christianity.  In addition, the Tribunal referred to independent country information concerning Christians and their treatment in India.  There was no such information suggesting anti-Christian activity in the Punjab.  Christianity is apparently the second largest religious minority in India, and the Indian Constitution guarantees religious freedom.

7. Accordingly, the Tribunal found that there was not a real chance that the applicant will face persecution on the basis of his asserted Christianity now or in the foreseeable future if he were to return to India.  It additionally found that, if the applicant fears returning to Punjab, it is not unreasonable for him to relocate to another part of India.  It was not satisfied that he has a high Christian profile, and it rejected his claim that Hindu fundamentalists would follow him around to kill him.  It noted that there are many Punjabi settlers in other parts of India, and many areas where Christian communities are concentrated and where the applicant could re-establish himself.  It noted that he has demonstrated that he is able to settle in a country where neither Hindu or Punjabi are the relevant languages, and has managed to obtained employment for the time he has been in Australia.  He has shown himself to be able to adapt to a new country and to new circumstances.  He has business skills and training as a mechanic.  He has the resources to draw on such as family members and other Punjabi communities in other parts of India.  It therefore applied the decision of the Court in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 457 in determining that, in any event, the applicant could reasonably relocate to another part of India if he had a well-founded fear of persecution by reason of his Christian religion or proselytising in the Punjab.

   THE GROUND OF REVIEW

8. The applicant contends that the Tribunal failed to comply with procedures which were required by the Act to be observed in connection with the making of the decision, so as to invoke s 476(1)(a) of the Act. The particular procedure is that prescribed by s 430(1) of the Act, namely the obligation upon the Tribunal to prepare a written statement that sets out its decision, sets out the reasons for the decision, sets out findings on any material questions of fact, and refers to the evidence or other material on which the findings of fact were based.

9. In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 (“Singh”), the Full Court decided that the preparation of a written statement of reasons for decision prescribed by s 430(1) of the Act is a procedure which the Act requires to be observed in connection with the making of a decision by the Tribunal not to grant a protection visa. A failure to prepare such a statement will therefore enliven s 476(1)(a). That case, furthermore, determined that s 430(1)(c), which requires that the written statement sets out the findings on any material questions of fact, requires the Tribunal to set out its findings on all matters of fact that are objectively material to the decision it is required to make:

   “It must make findings on questions of fact that are central to the case raised by the material and evidence before it.  In this respect, s 430 sets a standard of decision-making the RRT is required to observed.”  [48]

10. If a decision turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.  A fact will be material if, in the particular circumstances of the case, the decision in practical terms turns upon whether that fact exists.

11. The contention, put simply, was that the Tribunal failed to prepare a written statement that set out the findings on a material question of fact, namely whether the applicant had a well-founded fear of persecution by reason of his support for Sikh religious and political demands. It was submitted that that claim had been made also by the applicant, and simply had not been addressed by the Tribunal. It was said to be a claim to have a well-founded fear of persecution for a Convention reason, distinct from his claim based upon his asserted Christian religion and proselytising in relation to that religion. Another way of developing what was, in essence, the same complaint was to contend that the Tribunal had erred in law, so as to enliven s 476(1)(e) of the Act, by failing to consider what was said to be a “central plank” in the applicant’s claim to be a refugee.

12. It is clear that the Tribunal is under a duty to review the decision of a delegate of the respondent on the merits.  In doing so, it must consider the nature of the claim or claims upon which the refugee status is asserted, and so to have regard to all of the material and evidence before it in relation to that claim or those claims:  see eg. Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [19] and Singh at [52].

13. The respondent acknowledges that if the applicant presented a claim that he supported Sikh religious and political demands, and that that religious or political belief itself was itself a reason for a well-founded fear of persecution of his part, the Tribunal had not considered that claim and had not complied with s 430(1)(c) in respect of it. The respondent submitted, however, that no such claim was in fact made to the Tribunal.

    CONSIDERATION OF CONTENTIONS

14. In his application for the visa, at first, the applicant gave his religion as Hindu.  In response to that section of the application setting out his reasons for claiming to be a refugee, he said:

    “… My parents have good faith on Sikh religion in other words even being  a Hindu we are attached with Sikhs.

    I do support the Sikh religous and political demand those demands are not only for Sikhs but in fact benefit to all Punjabi.

    I noticed that Hindu do not support these demands only reason which I believe that criminal hatered.  The Sikhs demands were supressed with the most draconian laws and brutal state repression.

    …

    Neither Hindu nor Muslim and nor Hindu keep their religion all are killing innocents people.

    Be seeing all croulity I have decided to practice christian religion and started conveying message of Jessus and love.  I emphasises by saying that Siks and Hindu are not keeping there religon nor they following.

    …

    I do believe that Australia is a christian country and therefore I would be allowed to practice my faith in peace full enviorment.  …”

    (Spelling and grammatical errors not corrected.)

15. That document also contains his claims that, upon him becoming a Christian, his family forced him to leave home and that he was confronted by groups of Sikhs who beat him up and later kidnapped his nephew.  He also complained that the police did nothing in response to his report concerning that matter.  He also complained that people had stormed to his house.  He said he was not given fair treatment when he was “flousshing the message of Jassus” (sic) and was abused and beaten and detained by police whilst practising his Christian religion.

16. That document, and its contents, were noted by the Tribunal in the course of its recital of the applicant’s claims and evidence.

17. The Tribunal also had before it the application for review to the Tribunal.  That application dated 22 August 1997, which on the material was interpreted to the applicant before presentation, did not include any reference to his asserted Sikh religious or political support.  It provided:

    “The harm suffered by me in India included loss of liberty, unlawful and serious physical harm, dignity as well as lesser advantage is amount to high degree of persecution.  The said persecution arose from the expression of my religious belief and social group of Christianity.”

    It gave no hint of a claim being pressed in respect of his beliefs as a Sikh religious or political supporter.

18. Furthermore, in response to the decision of the delegate, the applicant by his migration agent on 19 October 1999 made some comments about the reasoning of the delegate of the respondent first rejecting the visa application.  One factor that the delegate had considered was that the applicant had given his religion as Hindu (a matter noted above) but then claimed to be Christian.  The applicant by his migration agent in response to that said:

    “The applicant submits that he was born a Hindu and therefore he wrote Hindu as his religion, but he made it clear in his statement that he is a converted Christian.”

19. That letter made it clear that his claim was based on persecution of the applicant due to his Christian religion and practise.  It included some material from newspaper reports suggesting that some Christian groups did complain of discrimination against them by the Hindu nationalist majority.

20. The Tribunal also noted that, in his oral evidence to the Tribunal, the applicant said that he fled from India because he converted to Christianity and after that people started bothering him.  He had remained a member of the RSS for only up to two years whilst he was at school, and when he left that organisation nothing happened.  The Tribunal described at some length the questions and answers, and information provided, by the applicant in relation to his experiences as a Christian.  There is nothing recorded in the Tribunal’s description of that course of information at interview which suggests that he was pursuing a claim as a Sikh religious or political supporter.

21. In my judgment that material indicates that the applicant did not claim (as he now asserts) to have a well-founded fear of persecution based on his support for the Sikh religious and political demands not only for Sikhs but for the benefit of all Punjabis, or that he claimed persecution based on his support for the Sikh religion and his political opinion.  The only real reference to any such assertions is in the introductory part of the applicant’s reasons for claiming to be a refugee in his initial application.  It is true, as counsel for the applicant contended, that that material appears in the present tense.  However, the whole of that document is in the present tense.  That factor alone does not warrant the conclusion that the Tribunal should have apprehended that that claim was being maintained by the applicant.  His claim to the Tribunal, and the material provided by him through his migration agent commenting upon the delegate’s decision, and his oral evidence, all clearly indicate that his only claim was to being persecuted by reason of his Christian religion and proselytising.  It was not because of his support for Sikh interests or for his Sikh religious or political beliefs.  The fact that the Tribunal, in reciting that document in a summary form, noted that material does not indicate that the Tribunal apprehended, or should have apprehended, that that was a part of the applicant’s claim.  To the contrary, the balance, of that document makes it plain that the applicant’s real claim, and only claim, was that he was being persecuted by reason of his Christian religion.

22. That claim was rejected by the Tribunal. It is not now submitted that the Tribunal, in rejecting that claim, committed a reviewable error under s 476 of the Act. Accordingly, in my judgment the application must be dismissed. I so order. I also order that the applicant pay to the respondent costs of the application to be taxed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:
Dated:            27 November 2000

Counsel for the Applicant:	Mr M Clisby
Solicitors for the Applicant:	Mark Clisby
Counsel for the Respondent:	Ms S Maharaj
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 October 2000
Date of Judgment:	27 November 2000