MZWDL v Minister for Immigration
[2006] FMCA 384
•21 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWDL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 384 |
| MIGRATION – Protection visa – whether jurisdictional error. |
| Migration Act 1958, s.91R |
| Ram v Minister for Immigration & Ethnic Affairs & the Refugee Review Tribunal (1995) 57 FCR 565 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| First Applicant: | MZWDL |
| Second Applicant: | MZWDQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 228 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 21 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J.A. Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr. R.C. Knowles |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Application be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 228 of 2004
| MZWDL |
First Applicant
| MZWDQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 January 2004. The Tribunal had affirmed a decision of a delegate of the First Respondent not to grant protection visas to the Applicants.
The Applicants rely upon an amended application filed 2 May 2004 though dated 30 June 2004.
The Applicants are Indian citizens and are husband and wife. They arrived in Australia on a one-month visitor visa on 7 December 2002. On 6 January 2003 they lodged an application for a protection visa with the First Respondent's Department. A delegate of the First Respondent refused the application on 25 February 2003 and the Applicants then lodged an application for review with the Tribunal which, as indicated earlier, delivered a decision dated 15 January 2004, affirming the delegate's decision not to grant protection visas.
The applicants' claims
The Applicants' protection visa application relied upon a claim by the First Applicant, and the Second Applicant, his wife, made no specific or separate claims under the Refugee Convention. Instead she claimed to be a member of the same family unit as the Applicant husband.
The claim by the First Applicant of a well-founded fear of persecution was set out initially in the visa application where in part the First Applicant states:
“I was a very successful Businessman in ..., Gujarat since last 10 years and the people of Vishva Hindu Parishad (VHP) always demand the money from me as a Ransom to protect my Business and me. VHP group is supported by Gujrat Government. Its is the political party against the Muslims in entire Gujrat State and take vote from people by force to win, when refused they come to the shop and break everything, one day they come to me and ask for a huge amount of money which was not affordable and when told them they threatened me and my family to kill if the amount demanded not given to them, I was knowing some of the officer in the police and I asked them for help from this group to stop them asking for the money all the time it was very difficult for us because as all the time they come and ask the money or they open the cash register and take how much is in there and no one to stop them, so police they laid the trap to arrest these people who demanded the money from me and arrested three of them. [sic]
But after they got arrested the problems started some people came to our house on the same evening and took me by force and when asked they said that I have to stay with them until we withdraw the case and let their people out of the prison we was with no option then to withdraw the case and ask the police to release the criminals who always create the problems in the society they all got together and bashed me to the extent and even I was unable to walk and they come in the jeep and throw me outside our society and went away, my brother rushed me to hospital where I had to stay for more than 25 days to recover. [sic]…”
Further in his application, other details were given which are recited by the Tribunal in its decision in the following terms:
“The applicant states in his protection visa application that they (it appears that he meant the VHP) asked the applicant to give them some property. The applicant refused and two people came to his shop and fired shots leading to the death of a client. The police were called and people were arrested a week or so later. The applicant was called to the police station to identify the killer. The applicant states that the shop was sealed and he was unable to do business after the murder of the client. The VHP continued to harass him and wanted him not to give evidence in court and threatened to kill him and his family if he did so. The applicant states that he had to go to court. He states that the police were supporting ‘them’ and that if he did not go the ‘the whole case will come one (him)’.
The applicant states in his protection visa application that the case has not been finalised by the court. He also states that ‘the people who were suppose to be in life imprisonment are out without any charges’. Because of the time they spent in prison because of the applicant’s evidence, they will not let the applicant and his family live in peace and might kill someone from the family to take revenge. People in India have advised the applicant not to return. He states that he fears that VHP people will kill him because he was an eye witness to the murder and that they could then ‘get benefit of re-opening (his) [property] and take illegal possession’.
The applicant states that he was attacked ‘twice or thrice’, that his shop is sealed and his properties are closed and that anti-social elements acting with the help of VHP and BJB and local police meant that he had to leave the country. He states that the authorities are ‘corrupt and racist’ and that ‘because (he is) Muslim’ he would not be helped by them. He states that it is only Hindu criminals ‘who get the benefit from the country and authorities’. He state that the police make money from criminals and arrest the innocent.
Further evidence was provided at the hearing which was in some respects different to what was submitted in the protection visa application.”
The First Applicant told the Tribunal that he feared returning to India because he had filed a case against Vishva Hindu Prasad (“VHP”) people who had killed a person in his shop and that he had been threatened by VHP people in this regard. The harassment apparently increased after what is described as the Godhra carnage where Muslim extremists attacked a train, leading to the deaths of 58 passengers, mostly Hindu activists. After that incident the First Applicant claimed people demanded more money and that this was for vote-buying on behalf of the Bharatiya Janta Party (“BJP”) in the upcoming election. As indicated, the First Applicant apparently attended a trial and gave evidence as a prosecution witness. It appears that the friends of the accused knew the First Applicant was the only witness to the crime and it was claimed he was threatened.
The following appears in the Tribunal decision when describing these events:
“The applicant told me that the two who were arrested are in prison and their friends know that the applicant is the only witness to the crime. They have threatened that if he gives evidence then he and his family will be killed. I asked the applicant when he was threatened in this way and he said that it was when the accused people were imprisoned when the case opened in court. I asked the applicant if he was still in India when the case went to court and he said he had not been and that he was threatened when he gave the statement and the people were charged and imprisoned. The applicant said that it was about fifteen days or so after the murder that people, who he said were other goondas linked to those who had been arrested, came to his home and said that if the applicant was a witness then he and his family would be killed. I asked the applicant if he had told the police about being threatened if he were to give evidence. The applicant also said that the police were afraid of the goondas because the state was governed by Hindus. I pointed out that his evidence had indicated that the police had prosecuted those accused. The applicant said that previously he had complained to the police three of four times in relation to the extortion demands he claims he experienced by they did nothing. He said then that the police had wanted a statement and that if had he provided this he would faced more harassment from the goondas.”
The First Applicant further claimed that he had property and that about two months before leaving India, people harassed him and said he should give them some of his property and also asked for money. He refused and was told that if he did not then he and his family would be killed. He had not reported that threat involving the property to the police, though said he tried to arrange to sell his business in the month before leaving for Australia and the property remains empty. He could not sell the property because it was in a Hindu locality and because "Goondas" wanted his property and would threaten people who wanted to buy it.
The tribunal decision
The Tribunal referred to country information and it should be noted that when dealing with the Applicants claims had also pointed out certain differences in the claim before the Tribunal and matters raised in the application. For reasons which will become apparent when examining the grounds relied upon by the Applicants, it is appropriate in this instance to set out in the full the "Findings and Reasons" of the Tribunal as follows:
“I accept that the applicant is a Muslim for Gujarat and that he is deeply concerned about the violence between Hindus and Muslims which as occurred there. I also accept that the applicant had a successful business which he sold just before he and his wife came to Australia.
As is apparent from the above account, what the applicant submitted in his protection visa application was in some significant respects different to what he said at the hearing. There are many reasons why what is submitted in writing may not accurately reflect an applicant’s claims, including the requirement for accounts to be translated into English and the involvement of people whose English may be poor and whose knowledge of how to apply for a protection visa limited. The applicant referred to interpreting problems when I talked with him about some of the differences in the evidence. I have given greater weight to what the applicant told me at the hearing.
The applicant has claimed that he was for an extended period, he said for a number of years, subjected to demands for money from people he said were with the VHP, a Hindu group. I accept that as a shop owner, and so someone though to have money, the applicant was subjected to such demands as were other business people. The applicant said that Hindus were not pressed to pay the money as the Muslims shop owners were but his evidence was that they were asked just as he was. The applicant said that he had previously complained to the police about the extortion demands by they had done nothing. The applicant suggested that this was because the state was governed by Hindus. He said that he had not provided a statement for fear that the harassment for the goondas would have worsened. The applicant states that the demands increased after the eruption in communal violence following Godhra incident in February 2002 and I accept that those who had extorted money could have taken advantage of the troubled situation to increase their demands. The applicant said that he usually gave the money but had once refused and been beaten up and had to have stiches. What the applicant said he feared seemed to me to be analogous with the circumstances described in Ram v MIMIA (1995) 57 FCR 565. In his judgment (at 569), Justice Burchett stated:
Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual. … [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually.
I do not consider that the evidence about the applicant’s experiences as a business owner indicates that it was his religion which was the essential and significant reason for the extortion demands which he experienced or which he may face upon return. His own evidence indicated that Hindu business owners were also subject to such demands. I note that he has claimed that they were not pressed to pay as the applicant claims the Muslims were and note that this may have been because they agreed to pay more readily. The evidence indicates to me that the essential and significant reason for the extortion demands was the applicant’s perceived possession of money, a perception reinforced by him having given them money for a long time. Consequently such treatment does not constitute serious harm under s.19R of the Act for a Convention reason.
I note as well that the applicant’s evidence about the police response to the extortion demands which the applicant reported to them did not indicate that their lack of actions was determined or influenced by the applicant’s religion; it appears that they had required a statement which the applicant had not given them. He said that this was because he was afraid that the harassment by the extortionists could increase had he done so but if this was in fact why he refused to give the police a statement then it is hard to see why he would have reported what was happening to the police in the first place. He had been a successful business man and must have some understanding that the police require reports and some evidence before they can act to arrest or charge a person. I do not consider that the evidence indicates failure or significant shortcomings in relation to the police response to the extortion demands.
I have considered carefully the applicant’s evidence about the murder of a Hindu customer which occurred in his shop. He claimed at the hearing that this occurred following some six months harassment by the people who extorted money from him about a very large payment which had been sought but which he said he had refused to pay. The applicant had been beaten at the time and a customer was shot. There were aspects of the applicant’s evidence which gave rise to concerns that he was not providing an accurate account. The applicant said that the saw those responsible for the killing but did not know their names, made a statement to the police and two people were arrested. His evidence indicated that the police identified the two from his description, that the two were goondas and that the police knew the goondas in the area, that there were only two in the locality and that the police were afraid of them. Yet different goondas arrived at his home fifteen or so days after the murder to tell the applicant not to be a witness and the police did arrest two people notwithstanding being afraid of them. The applicant’s evidence about conduct of the prosecution was confused. He said at the hearing that from Australia he had telephoned a friend who said that the people charged might be released and the applicant said that the people would be out by now although also appeared to think that the case would open in court sometimes in the future. Its is possible that people facing such serious charges could be released on bail in advance of the trial but the applicant’s claim that they are out because the government is the BJP and the police cannot do anything does not sit easily with the police action to charge the people with murder which he has said occurred. If the applicant were in fact to give evidence in the case as he claims (the resulting threats are a major reason for his fear of returning), it is surprising that his evidence about the conduct of the case was so confused.
If the applicant was infact a witness to the murder and was to give evidence against those accused and if people associated with those accused have threatened him with harm if he were to give such evidence, I do not consider that such circumstances engage the provisions of the Refugee Convention. What the applicant fears – that is being hurt by people who want to stop him from giving evidence about the crime – will not in my view occur because of a reason in the Refugee Convention. What he fears will not happen because of his race, religion, nationality or political opinion and there is no particular social group to which the applicant could be seen to belong and which would be the reason for what he fears might occur. The reason for what the applicant fears is that he witnessed a crime which occurred in the context of extortion demands and this is not a matter which can give rise to a finding of persecution as the term is used in Australia’s refugee law because the harm will not be for a reason specified in the Refugees Convention.
Not long after the murder, the people harassing the applicant said that he should give them some of his property and they also asked for money. It appeared that his occurred several months before the applicant’s departure for Australia. The applicant refused to give them property and was told he and his family would be killed. The applicant said that he did not report this threat to the police. As with my finding about the reason for the demands for money which the applicant experienced, I do not consider that the evidence indicates that the essential and significant reason for the demand that the applicant give property was his religion or any of the other reasons in the Refugee Convention. I consider that the evidence indicates that the demand was an opportunistic attempt to take something from a person who was reasonably well-off. As well, there are aspects of the evidence which indicate that there is not a real chance that the people who wanted the property seriously intended to carry out the threats the applicant claims they made: the applicant’s evidence was that the demand and tis associated threat were made several months before his departure yet he came to no harm for his refusal in those months. In addition, the property remains unoccupied suggesting that those who wanted the property have not sought to occupy it in his absence.
I found the applicant’s evidence about not being able to sell his property because it was in a Hindu locality somewhat perplexing. He said that it would be hard to sell because the goondas wanted it and would threaten people who wanted to buy it. Even if the applicant’s property would be hard to sell, I do not consider that such difficulty, including getting a lower price for it that the thinks it is worth, can reasonably be regarded as serious harm in the applicant’s circumstances. In reaching this view, I have had regard to the types of harm exemplified in s.91R of the Act.
Notwithstanding my conclusion that matters associated with the extortion demands and having witnessed a crime do not engage the provisions of the Refugees Convention, the applicant is a Muslim from state where there has been over the last two years, including time when the applicant was still there, terrible violence between Hindus and Muslims in which Muslims have been most of the victims. Independent information confirms that there was a large scale retaliatory action taken against Muslims in many parts of Gujarat after the burning of the train in Godhra in February 2002. I accept that the troubles are not over and that the situation remains volatile. Such conflict would not only be manifested in acts of extreme violence and information I have read indicates that there has also been suspicion, harassment, abuse and intimidation between followers of the two religions. The applicant has submitted that the BJP government of Gujarat has been complicit in aspects of the mistreatment of Muslims and independent information suggests that there were occasions when this was so. It has pointed also to concerns that the issues of concern to Hindus have been given greater attention that those where Muslims have been affected.
That some people in a country have suffered or suffered persecution and that an applicant claims to have suffered as these people have, or to be in similar circumstances as those who have suffered and so be at risk of similar treatment, does not, of itself, establish than applicant’s claimed fear is well-founded within the meaning of the Refugees Convention. The Tribunal is obliged to consider the totality of the evidence about the particular circumstances of the applicant against information about conditions in the country in reaching its conclusions about what has happened to the applicant in the past, what might follow an applicant’s return to their country and how these facts relate to the definition of a refugee in the Refugees Convention. I have had regard to the evidence which indicates that the applicant has not experienced persecution on account of his religion in the past even though he lived in a Hindu area. As well, I have had in mind the number of Muslims in Gujurat (some 4 million in a population of some 50 million), the numbers of people who have been killed or displaced in the violence and the information I have read which indicates that most of these have occurred in eruptions of violence in a limited number of particular localities. It has been at these times when state protection has been found to be less than adequate. I not that the applicant has stated that he lives in a Hindu area and consider that he could choose to move to live in a different area of the city. While I an understand the applicant’s wish to leave his country, I have come to the view that the chance of the applicant coming to serious harm, of a kind which could constitute persecution, as a consequence of communal trouble in the reasonably foreseeable future on account of his religion is remote.”
The grounds
The grounds relied upon in the application were summarised in the Applicants' contentions in the following terms:
“7. The Applicants' principal contention is that the decision of the Tribunal was affected by various jurisdictional errors in that it:
(i) failed to consider the question whether the acts of past persecution by members of the Hindu chauvinist political group VHP occurred for reasons of imputed political opinion
(ii) failed to consider the question of whether the acts of past persecution by members of the Hindu chauvinist political group VHP occurred for reasons of membership of a political social group, being Muslim shopkeepers/businessmen
(iii) misunderstood and/or misinterpreted the Convention definition and/or applied the wrong test as to what will establish the existence of a Convention nexus on the grounds of membership of a particular social group
(iv) misunderstood and/or misinterpreted the Convention definition and/or applied the wrong test as to whether the Applicants had a well-founded fear for a Convention reason
(v) misunderstood and/or misinterpreted the Convention definition and/or applied the wrong test as to whether the Applicants had a well-founded fear for a Convention reason once it accepted the inadequacy of state protection in particular localities by finding that the Applicant could choose to move without any consideration of whether he was able, and whether it was reasonable for him to relocate.”
Those grounds were further dealt with under the following three headings:
“(a)Failure to deal with claim of imputed political opinion/wrong test
(b)Failure to deal with claim of membership of a particular social group/wrong test
(c)Well-founded fear - misapplication of real chance test; no consideration of re-location.”
Ground (a): Failure to deal with claim of imputed political opinion/wrong test
It was submitted on behalf of the Applicants that the Tribunal's reasoning process involved rejection of the Convention nexus based on any of the five grounds but acceptance or lack of rejection of the acts of extortion and persecution that had occurred as alleged by the Applicants. The Tribunal had also accepted country information establishing at least serious ongoing concerns about the situation of Muslims in Gujarat and the risk of persecution they face from extremist chauvinist Hindu groups.
It was submitted that the Tribunal accordingly ignored the underlying factor that the persecutors were members and supporters of chauvinist Hindu political grouping/party (VHP) when it proceeded to find that the acts of extortion committed against the First Applicant over a significant period of time and the later acts of persecution were not Convention related. That finding involved a failure to consider the claim raised and/or a misunderstanding of the criteria that needed to be satisfied in relation to the ground of imputed political opinion.
It was submitted by the Applicants that the case was raised squarely on the material and the Tribunal should have dealt with it accordingly. The imputed political opinion raised on the material in the evidence, including country information about the nature of the VHP and its links to the BJP Government in Gujarat, even though not expressly articulated, was claimed to be put before the Tribunal.
It was further submitted that reliance by the Tribunal on the decision of Ram v Minister for Immigration & Ethnic Affairs & the Refugee Review Tribunal (1995) 57 FCR 565 (Ram) to the extent that the Tribunal claimed the circumstances in the present case were analogous with the circumstances in that case was misconstrued and demonstrates a misunderstanding constituting error. In this case it was argued that the fear of the Applicant could not be described as analogous to the circumstances in Ram where the claims made by the Applicant did not extend beyond extortion because the victim was wealthy. In Ram, no ground of political opinion or religion was advanced.
Although it was submitted that the fact of extortion itself may not constitute serious harm for the purpose of s.91R of the Migration Act 1958 (“the Act”), it accepted acts contained an implicit threat inherent in the fact that the First Applicant, as Muslim shopkeeper, was pressed to pay.
The First Respondent submitted that the Tribunal did not expressly refer to the "risks of persecution" for Muslims in Gujarat, but in its reasoning set out earlier this judgment did refer to its obligation to consider the totality of the evidence about the particular circumstance of the Applicant against information about conditions in the country in reaching its conclusions about what happened to the Applicant in the past. That reasoning, it was submitted, discloses no jurisdictional error.
Further, it was submitted that the Applicant did not make claims in respect of a well-founded fear of persecution by reason of an imputed political profile. He did not claim to be a member or supporter of a political party or otherwise politically active. Reference was made to the written statement attached to the protection visa application and the claim of the Applicant to fear persecution because he was a Muslim and because he was a witness to a murder in his store. Accordingly it was submitted the Tribunal was not obliged to deal with claims that were not advanced by the Applicant (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [32]).
It was argued that on a fair reading of the material and evidence before the Tribunal, it can be clearly demonstrated that the Convention reason of imputed political opinion was never expressly or impliedly raised by the Applicant. No error was disclosed in the Tribunal's reference to the decision of the Federal Court in Ram. It was argued that the reference to Ram was appropriate and disclosed no error, as in that case several Convention bases were referred to, including religion and political opinion, and it was not restricted to a claim of a particular social group of "wealthy Sikhs".
Further, it was submitted that in the present application the Applicant had claimed he was subject to extortion because he was a business person and that other non-Muslim businesses were also the subject of extortion by the VHP. In any event, it was argued that notwithstanding any reference to the decision of Ram, there is no basis to suggest the Tribunal had failed to discharge its obligation to consider the Applicant's claims. Its conclusions were open to it and demonstrated no error. The Tribunal, it was submitted, is not in the position of being required to make the Applicant's case for him (see Australian Broadcasting Tribunal v Bond(Bond Media case) (1990) 170 CLR 321).
It was further submitted that in this instance the Tribunal did not find that "extortion itself may not constitute serious harm for the purpose of s.91R of the Act" but rather found that extortion in the present case did not constitute serious harm pursuant to that provision. In the alternative it was submitted that in any event, the Tribunal found the Indian authorities could provide effective protection from any harm feared, so that any error in dealing with persecution claimed by the Applicant would have no material impact on the Tribunal's ultimate decision.
Reasoning
In my view, the submissions made for and on behalf of the First Respondent in relation to this ground are correct. I am satisfied that on a proper reading of the Tribunal's decision, it considered the claim as then put to it by the Applicant. It is appropriate to characterise that claim as being one relating to the Applicant's business and the fact that he was a Muslim. There was ample evidence before the Tribunal that the Applicant was targeted due to his business given that there was an allegation that other businesses had also been targeted. Whether others were targeted to the same extent may only be a matter of degree, and in any event, assessing that issue is clearly a matter of fact-finding reasonably to the Tribunal.
The imputed political opinion now sought to be advanced was not squarely raised in the material, and I am satisfied that in this application the Tribunal did not commit any error by failing to undertake an analysis of a case based upon imputed political opinion. I accept the Tribunal was not required to make the Applicant's case for him and that on a reading of the claims set out earlier in this judgment, it could not be expected to pursue, and nor indeed was it obliged to pursue, a consideration of a claim not formulated relating to imputed political opinion.
Ground (b): Failure to deal with claim of membership of a particular social group/wrong test
It was submitted by the Applicant that there was a failure to deal with a particular social group of a claim not articulated as such by the Applicant but of a kind raised by the evidence and material which was accepted; namely that of a Muslim shopkeeper/businessman. While Hindu shopkeepers were asked for money, it was argued that Muslim shopkeepers were oppressed and threatened, and therefore the Applicant's submission distinguished the threats. The claim should then have been considered on the basis that those targeting the Applicant were motivated to do so because the Applicant was a member of a social group; namely a Muslim shopkeeper/businessman.
Reference was made to the statement by the Tribunal set out above where it concludes that there is no particular social group to which the Applicant could be seen to belong and which would be the reason for what he fears might occur.
It was claimed that that finding contravenes the reasoning of the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 (Applicant S). Reference was made to passages in that decision, and in particular paragraph [27] where Kirby J states:
“The general principle is not that the group must be recognised or perceived within the society but rather that the group must be distinguished from the rest of the society.”
Similar reference was made to the High Court decision in Applicant S and the judgment of McHugh J (see paragraphs [61] - [64], [67] and [69]).
The First Respondent submitted that contrary to the Applicants’ contentions, the Tribunal was not obliged to address a "particular social group claim" because no such claim was ever advanced by the Applicants. Further, in any event, by reference to the Tribunal's decision set out earlier, even if the Applicant had expressly or impliedly claimed to belong to a particular social group, then the Tribunal dealt with it in the decision by making its specific and express finding that the essential and significant reason for the extortion demands was the Applicant's perceived possession of money, a perception reinforced by him having given them (“the VHP”) money for a long time.
Reasoning
In my view, the Tribunal has not erred by any perceived failure to consider the claim of membership of a particular social group. It has indeed made a general finding of fact, reasonably open it, concerning the motivation for the extortion demands and noted that that finding was reinforced by the Applicant having given money for a long period of time. Demands were made on others in businesses who were not Muslim shopkeepers/businessmen. In this case, it could not be claimed that all businesspeople could provide a basis upon which they could be distinguished from the rest of society so as to constitute a particular social group in the manner described by the Court in Applicant S.
Accordingly this ground should fail.
Ground (c): Well-founded fear - misapplication of real chance test; no consideration of relocation
The Applicant submitted the Tribunal misunderstood and/or misinterpreted the Convention definition and/or applied the wrong test as to whether the Applicant had a well-founded fear for reasons of religion. It was argued that the Tribunal seemed to have posited a possibility of the Applicant being inadequately protected from communal violence in the Hindu area in Gujarat, where he lived.
It was submitted that where a finding is made that a person can avoid persecution by removing oneself from its source, then the reasonableness of relocation must be explored. Reference was made to the decision of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 (Rhandhawa). Specific reference was made to the following passage:
"In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant’s Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate’s consideration, she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that ti would ordinarily be quite wrong for a decision-maker faced with the relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made of by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision maker would have needed to consider these, but having regard to the issues by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expect to relocate elsewhere in India.”
The First Respondent submitted that the Tribunal specifically made a finding in relation to the claim by the Applicant of complicity of the Government of Gujarat with mistreatment of Muslims and then specifically noted that although some people in a country have suffered or suffer persecution and that the Applicant claims to have suffered as these people have or to be in similar circumstances does not of itself establish the Applicant's claim of a well-founded fear. It then made the general findings referred to earlier in this decision, having regard to the "totality of the evidence about the particular circumstance of the Applicant".
The conclusion of the Tribunal was that the Applicant coming into serious harm as a consequence of communal trouble in the reasonably foreseeable future on account of his religion was remote. There was no error in that conclusion in that it was based upon specific findings that the Applicant had not experienced persecution on account of his religion in the past even though he lived in a Hindu area and that eruptions of violence in the area occurred in a limited number of particular localities, and it was at these times when state protection "was found to be less than adequate".
Reference was made to the further finding that although the Applicant lived in a Hindu area in the city, he could choose to move to a different area in the city. Implicitly it was submitted that the Tribunal found, in general, adequate state protection existed. It was only at particular times and in particular places that a breakdown occurred.
It was further submitted by the First Respondent that the Applicant was not living in an area affected by a breakdown of state protection, and therefore the likelihood of persecution in the reasonably foreseeable future was remote, as found by the Tribunal, and that finding was free of any error.
In the alternative it was submitted by the First Respondent that the Applicant had not established the Tribunal gave no consideration to the reasonableness of any relocation and it is not necessary for it to refer to every piece of evidence in its decision. Reliance was placed upon the Full Court decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 where the Full Court stated at [47] that:
“The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
It was submitted that a fair reading of the Tribunal decision demonstrates the Tribunal had identified the reasonableness or otherwise of any relocation by the Applicants and concluded that they could reasonably relocate.
The present case did not concern the Applicant "acting discretely" in respect of his or her convention-related characteristics or modifying behaviour but instead it was submitted the principles in respect to relocation, including the "practical realities" were considered by the Tribunal (see Randhawa per Black CJ at page 270).
It was argued in the present case that the Applicants provided no evidence that claims were put to the Tribunal about impediments to relocation or that such claims were not addressed by the Tribunal. The Tribunal was entitled to reach the conclusion that the Applicants could reasonably be expected to relocate to another area in their home city.
Reasoning
I do not detect any error of law in the manner in which the Tribunal has considered the issue of relocation. As submitted by the First Respondent the Tribunal had regard to relocation within the city occupied to the Applicants, albeit to a different area. It has not made a finding in relation to what might be described as a part of the country in which protection is available which may not reasonably be accessible to that person and nor has it sought to impose upon the Applicants a restriction or modification of behaviour in pursuit of their religion.
I accept, as submitted by the First Respondent, that it is important not to construe the Tribunal's reasons minutely and finely with an eye keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
I further accept that a proper reading of the Tribunal's decision reveals that it had considered the reasonableness or otherwise of any relocation, albeit perhaps in brief terms, but sufficient so as not to fail to discharge its obligations to explore the issue appropriately.
Accordingly it follows that this ground should fail.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 March 2006
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