S1983 of 2003 v Minister for Immigration
[2007] FMCA 99
•18 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1983 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 99 |
| MIGRATION – RRT decision – Indian Hindu fearing persecution as low caste Sindhi and Dalit – whether addressed the claims presented – whether misapplication of real chance test and principles in relation to relocation – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.474, 476
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8
Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
S1983 of 2003 v Minister for Immigration [2005] FMCA 1665
S1983 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 209
SZAWW v Minister for Immigration [2003] FMCA 479
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368
SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392
SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416
| Applicant: | APPLICANT S1983 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2232 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 18 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the First Respondent: | Ms S A Sirtes |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2232 of 2006
| APPLICANT S1983 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to this Court filed on 14 August 2006, which has been set down for final hearing on the applicant’s entitlement to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 July 2006 and handed down on 20 July 2006. The Tribunal affirmed a decision of a delegate taken on 2 October 1997, refusing to grant him a protection visa.
The long period between the delegate’s decision and the Tribunal’s decision is accounted for by an earlier Tribunal decision made on 31 May 1999, which was the subject of previous judicial review proceedings. This appears to have been started with applications to the High Court as a represented party in the Muin and Lie cases. A separate application for orders nisi was then lodged in the High Court, which was remitted to the Federal Court. Emmett J refused to grant orders nisi, for reasons which his Honour published in relation to 707 other such applications (see Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289). The applicant then commenced fresh proceedings in this Court. The applicant was unsuccessful at first instance, but on appeal Graham J ordered the issue of writs quashing the first Tribunal’s decision (see S1983 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 209). The matter was then remitted to the Tribunal, and has now produced the present decision which is before me.
Neither the decision of the first Tribunal, nor the judgments on judicial review, are included in the papers before me, and I was not referred to them by the parties. It is unnecessary for me to examine how the first Tribunal reasoned, and the errors which were found to have been made.
I raised with counsel whether the provisions of s.474 of the Migration Act in relation to privative clause decisions would apply to this application (see cl.8 of Sch.1 of Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), and SZAWW v Minister for Immigration [2003] FMCA 479 at [4], Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47 at [4]‑[8], SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12], and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368 at [33]). Contrary to my first impression, I consider that the privative clause does apply to this proceeding, since it concerns a Tribunal decision made after the 2001 amendments. This point is, however, immaterial, since it was not contended for the Minister that the applicant did not seek to raise jurisdictional errors affecting the Tribunal’s decision. I also note that the Minister has not submitted that there were any delays, or other conduct by the applicant, which would disentitle him to relief if I were satisfied that an entitlement was made out.
The grounds which were relied upon by the applicant’s solicitor today were set out in a further amended application which was filed at the hearing. There are three grounds:
(1)The Tribunal made jurisdictional error as it failed to deal with the claim the applicant put to the Tribunal and dealt with the claim on a different basis.
(2)The Tribunal made jurisdictional error as it misapplied the real chance test in finding that there is no real chance that simply as a Dalit he will be persecuted in India.
(3)The Tribunal made jurisdictional error as it failed to apply the right test for relocation.
The refugee claims made by the applicant
The applicant came to Australia in 1994 on a three months visa, and overstayed. His application for a protection visa was lodged on 25 September 1997, when he was held in immigration detention. At that time he obtained the assistance of a migration agent, who was subsequently deregistered, to present his claims to fear persecution if he returned to the country of his nationality, India.
In his application he said that he belonged to the ethnic group “Sindhi” and was of Hindu religion. He said he was a self‑employed electrician. The questions and answers in the form contained the following claims:
36Why did you leave that country?
My parents were killed by the Shiv Sena fundamentalist Hindus.
They burnt down my place and threatened to kill me.
Now the Shiv Sena is in power under the Bac Thackeray leadership.
(Details attached)
37What do you fear may happen to you if you go back to that country?
They will kill me and threatened my life.
(Details attached)
38Who do you think may harm/mistreat you if you go back?
(Details attached)
39Why do you think they will harm/mistreat you if you go back?
Shiv Sena will kill me.
They don’t like Sindhi people.
(Details attached)
40Do you think the authorities of that country can and will protect you if you go back? If not, why not?
No.
The Maharashtra State Police, Government, Secret Police and the Bombay Mayor, all of them are pro‑Shiv Sena supporters and sympathisers.
(Details attached)
The attached statement said:
1.I was born in [place] in Maharashtra State in India. I am belong to the Sindhi Community living in the midst of the local Maharashtrians.
2.I studied in the Government Municipal School in [place] and did my middle school and secondary school education in [school] in [suburb], Bombay.
3.Followed by my education I was forced to look for a job and ended up doing work as a handy man in and around my hometown in [place].
4.My father was killed by the Shiv Sena hooligans, the fundamentalist Hindu religious groups who hated me and my families being Sindhi community since we belong to the low caste.
5.Having lost my father in the riots the family burden was on me since I am the only son for my parents.
6.Myself and my mother were constantly harassed by the local Shiv Sena people under the leadership of one Mr. S who was the local gang member.
7.The Shiv Sena people burned down my shop and all my belongings and I was compelled to escape to save my life.
8.I went and complained to the police but the Maharashtra police and secret police being the strong supporters of the Shiv Sena under the leadership of Mr. Bal Thackeray turned a blind eye and did not even attend to me.
9.The Shiv Sena members threatened to kill me if I continue to live in India and I was forced to escape from India.
10.Due to my forced departure my mother became depressed and she was constantly taunted and harassed by the local Shiv Sena families. My family is the only Sindhi family among the 60 plus Shiv Sena members.
11.I could not relocate to another place and live due to the cost and expense in running my own business and it is very expensive to lease and own places in Bombay.
12.On 29‑3‑95 I heard news through my friends that my mother died due to the shock and harassment from the Shiv Sena members.
13.I am afraid to go back to India since the Maharashtra police, secret police and Indian authorities cannot protect me.
14.I do not trust the Indian authorities after all these sad incidents that happened in my life.
15.I seek asylum in Australia and protection from the Shiv Sena and Hindu fundamentalist people since the Indian government encourages fundamentalist people to kill and eradicate low caste people like me.
The material before me does not contain any additional supporting material presented to the Department before the delegate’s decision, nor to the Tribunal as originally constituted.
Following the remitter pursuant to Graham J’s order, the applicant obtained the assistance of his present solicitor, who accompanied him to a hearing. This commenced on 14 June 2006, but was adjourned without any substantial progress to 23 June 2006 due to illness of the applicant. A transcript of the adjourned hearing is before me and I have read all of it.
In the course of the transcript there is reference to material forwarded by the applicant’s solicitor before the hearing. This contained extensive internet and other extracts, which reported incidents and general opinions concerning the treatment of a variety of under‑privileged groups in India, including the members of the Dalit caste, women, and tribal people. Much of the material referred generally to the disadvantage situation of “low caste people” in India and in various regions of India, as well as referring to members of the “untouchable” Dalit caste. There was no material submitted which generally explained the caste system in India. The applicant’s solicitor appears to have assumed a general knowledge of this on the part of the Tribunal, and the transcript and decision of the Tribunal suggests that it had such a knowledge. This Court does not have such a knowledge, and neither party has sought to provide it to the Court to assist its understanding of the evidence.
At the hearing, the applicant was initially asked questions as to the extent to which he affirmed his written statement presented in 1997 in support of his protection visa application. The applicant disclaimed the assertion in paragraph 15 of his statement that “the Indian government encourages fundamentalist people to kill and eradicate low class people like me”. However, through an interpreter, he said:
THE INTERPRETER: Everything else is correct.
TRIBUNAL MEMBER: Okay. I’m going to be asking you about the claims that you have made in that statement.
THE INTERPRETER: Right.
TRIBUNAL MEMBER: As you can see I take notes whilst we’re talking, I know the hearing is recorded but I need to follow exactly what we are saying, okay? Okay, can you tell me where you were born?
THE INTERPRETER: In Bombay.
TRIBUNAL MEMBER: Which particular town?
THE INTERPRETER: …
TRIBUNAL MEMBER: And you’re from the Sindhi community?
THE INTERPRETER: Yes. Low cast Sindhi.
TRIBUNAL MEMBER: I’ve been provided with a lot of material that refer to the Dalits, you are not a Dalit?
THE INTERPRETER: They’re almost the same.
TRIBUNAL MEMBER: Not in particular, there are a lot of castes in India as you probably know.
THE INTERPRETER: Low caste people are regarded as the same.
TRIBUNAL MEMBER: But you are not a Dalit yourself, you are from the Sindhi community?
THE INTERPRETER: Yes, I am from the Sindhi which is a low caste community.
TRIBUNAL MEMBER: I understand that but you are not a Dalit?
THE INTERPRETER: That is the same, Dalit and low caste is the same.
TRIBUNAL MEMBER: Are you saying you are a Dalit, Mr Applicant?
THE INTERPRETER: You could regard it like that, yes.
TRIBUNAL MEMBER: Well it’s not what I could regard it, it’s what you see yourself as being.
THE INTERPRETER: What I told you, that is what I am.
TRIBUNAL MEMBER: So you’re saying you are a Dalit?
THE INTERPRETER: Yes, Sindhi, low caste Dalit.
TRIBUNAL MEMBER: What is your religion?
THE INTERPRETER: Hindu.
TRIBUNAL MEMBER: What languages do you speak?
THE INTERPRETER: Sindhi, Hindi.
TRIBUNAL MEMBER: Thank you. And I think you can speak a little bit of English?
THE INTERPRETER: Yes.
The Tribunal then obtained information from the applicant concerning the situation that he had faced in India before coming to Australia. It summarised part of the transcript in a manner which, in my opinion, was very fair to the applicant’s evidence. This included:
The Tribunal asked the applicant about the circumstances of his father’s death. The applicant said they were low caste people and he grew up in a Shiv Sena community which did not welcome them as Sindhi and low caste people. He said for many years the family was subjected to harassment and they were targeted by the community. He said that the Shiv Sena families asked his family to leave the area and this had gone on for many years. He said there were numerous arguments between his family and the Shiv Sena families. He said these families also threw stones at the house and rubbish. The applicant gave evidence that his family lived in an area surrounded by about sixty families that were associated with the Shiv Sena. He said his family had lived in that area for about forty years prior to his arrival to Australia. The Tribunal asked the applicant again to explain the circumstances of his father’s death. The applicant said because his father was low caste, he had suffered ongoing problems with the Shiv Sena. He said on the 21st November 1975 about 7:00 a.m., about fifteen to twenty people came to their home and they were saying bad words and they were throwing stones at the house. He said an argument ensued between his father and those people who asked his father when he was going to leave the town. He said a fight started and his father was hit and he subsequently passed away. The applicant said he personally complained to the police but they did not even take a report. The Tribunal pointed out to the applicant that at paragraph five of his statement he claimed that his father was killed during riots. The applicant said there was a mistake which had been made by his then adviser.
The Tribunal asked the applicant if he has ever been approached by the Shiv Sena in India and the applicant said he was on many occasions. He said in October 1994 they burnt his shop. He said he was also assaulted by the Shiv Sena. The applicant tried to point to his forehead where he had allegedly been hit by the Shiv Sena. The applicant said he complained to the police and they took no action. The applicant gave evidence that his mother died whilst he was in Australia. He said he called one day and was told of her death. He said his mother could no longer take the pain and harassment that they had suffered at the hands of the Shiv Sena. He said he does not know what happened to her.
The transcript shows how the applicant explained the risks that he would face if he returned to India. The following parts are relevant to considering how the applicant put his claims, and in particular, as to the group of people at risk with whom the applicant identified himself. I note that the transcript shows that the applicant at times answered the Tribunal through the interpreter and at other times in English:
TRIBUNAL MEMBER: My real task, Mr Applicant, is to decide whether there is a real chance that you will suffer persecution if you were to return to India in the reasonably foreseeable future. Now, Shive Sena are no longer controlling your area, you know that, don’t you?
THE INTERPRETER: It’s not only the question of Shiv Sena but the question is of low caste people, that is the suffering of these low caste people all over India.
THE APPLICANT: Each and every part of India.
TRIBUNAL MEMBER: I know there’s a lot of material before me and I need to go through it very carefully and I know that there are inter–caste issues in India. I’ve done quite a bit of research and I asked our staff to [do] a lot of research for me about the Sindhi community in your area in particular.
THE INTERPRETER: Yes, there is a class system among the Sindhis also.
TRIBUNAL MEMBER: Yes, I understand that.
THE INTERPRETER: They have been suffering a lot because of being low caste people.
…
THE APPLICANT: When I go to that – I need accommodation, okay, I can’t live – because of my caste I have to live with those people only. Because I already had a problem in the other community so I have to look for accommodation in that community which I belong.
TRIBUNAL MEMBER: Which community?
THE APPLICANT: Low caste.
TRIBUNAL MEMBER: Okay, what are you talking about?
THE APPLICANT: I’m talking about accommodation.
TRIBUNAL MEMBER: If you go to another part of India, relocation basically means going to another part.
THE APPLICANT: Any part India, any part of India, whether it’s north or south.
TRIBUNAL MEMBER: North or south or east or west, yes?
THE APPLICANT: Any part of India I cannot get accommodation in the higher caste community. I have to look for accommodation in the lower caste community where I belong to and normally those people are not educated people. Out of thousands, maybe one person, not in that vicinity but I’m talking about in India.
The applicant then explained that if he went back he would be called upon by other low caste people to assist them, due to his education and background, and that this would attract attention to himself. He explained this risk:
THE APPLICANT: So on that basis also I’ll be targeted because of my low caste because they have been targeting every time low caste people. There are many reports we’ve got here about the police and low caste people, how the people are targeted, this is what I can prove here.
…
THE APPLICANT: Because of my caste, low caste, I’ll be targeted again in those communities. Wherever I live, any part of India I live I have to live in low caste community.
TRIBUNAL MEMBER: But if you’re going to live in a low caste community and I’m not suggesting you should or you have to, but if you’re going to live amongst low caste people why would they persecute you?
THE APPLICANT: Not those people, those caste people, people from other communities, higher caste.
THE INTERPRETER: Higher class people.
THE APPLICANT: Higher class people. I’m not … the low caste people won’t harm me.
TRIBUNAL MEMBER: No, I wouldn’t have thought so.
THE APPLICANT: But they get targeted from other communities, other higher caste communities. I’m not talking about low caste people will harm me.
TRIBUNAL MEMBER: I understand. I’m just going to take a moment to look at the material that has been provided to me just to make sure that there’s nothing that I need to ask. Mr Silva, I noted that some of the material you had provided was not that recent?
The Tribunal then received submissions from the applicant’s solicitor, which are also recorded on the transcript. Reference was made to the material which he had forwarded to the Tribunal. He then opened his submissions:
THE ADVISER: Yes. My oral position is that … there are an enormous amount of reports, latest ones as to what is happening to low caste people even now so if there [are] any questions I may come back and provide you further information if you think that’s necessary, if you’re not satisfied.
TRIBUNAL MEMBER: Well, as I said earlier and I repeated it, I do accept that there are inter‑caste issues in India and I’m not disputing that. However, I do want to reiterate that that does not necessarily mean that a person from a low caste background would be persecuted without - - -
THE ADVISER: Yes, not everyone. …
TRIBUNAL MEMBER: And that’s my position at the moment. …
The advisor’s submissions also included the following passages:
THE ADVISER: What he’s saying is when he goes back he’s going to have difficulties finding accommodation and he has to somehow or other find a place in slums or shanties or wherever the low caste people and he has to find accommodation there then when he stays there because he’s educated he has to start helping those people, they will come to him obviously asking for writing a letter or complaining to the police or writing to the government authorities and since they are in conflict with high caste people they would target – high caste people would target someone like him who is tyring to help the low caste people to you know sort of come up or come up the ladder or make complaints against those high caste people so he will be one who is seen as someone who is trying to help the low caste people and that causes he’ll be targeted by high caste people who are in conflict with those low caste people.
TRIBUNAL MEMBER: Mr Silva, could I please ask you to slow down a bit because I’m trying to take - - -
THE ADVISER: Sure.
TRIBUNAL MEMBER: I’m sorry I didn’t mean to interrupt you. Please continue, thank you.
THE ADVISER: Yes, so basically what his position is, when he goes and find accommodation which will most probably be with low caste community, because they’re uneducated and they’re suffering he, because he speaks a little bit of English, has been overseas, he can’t be blind to their suffering and he may have to help in what small ways that he could, for example write a letter if there’s a letter needs written somewhere or to read a letter, to write something in English to the government, a petition or complaint. By that process he will attract the attention of high caste people who are in conflict with those low caste people and therefore he will be targeted. That’s what he was trying to articulate.
TRIBUNAL MEMBER: I think I got that quite clearly, yes.
…
THE ADVISER: Member, you also mentioned about discrimination of Sindhi’s in that particular area and what he was saying was his family was just one Sindhi family in that area, so and also his claim is not as a Sindhi as such. Sindhi’s because within the Sindhi community there is so many … of caste within the Sindhi community.
TRIBUNAL MEMBER: Yes.
THE ADVISER: So his complaint is not as a Sindhi but as a Dalit or a lowest of class person, that’s his complaint, as a low caste person that he is going to be persecuted, not as a Sindhi.
TRIBUNAL MEMBER: But he is a Sindhi?
THE ADVISER: He is a Sindhi but it may at some element because Sindhi’s are seen as outsiders coming from Pakistan.
TRIBUNAL MEMBER: Yes.
THE ADVISER: But that is not his main claim. His claim is being a Dalit, low caste, he will be persecuted, that’s his claim and the next issue, member, you mentioned about some Shiv Sena leader who belongs to Sindhi community. Now generally Mr N himself was president in India, from low caste but you will appreciate that there are very clever individuals in a society, they will find ways of coming up the ladder.
TRIBUNAL MEMBER: Sure, and I appreciate that too.
…
THE ADVISER: The police are the tools of the system and it’s the police who are really persecuting these people. The police and the people with power. You would see from most of the reports that we have provided, when complaint is made of serious rape or killing police don’t take. Maybe on occasion there are reports showing that when you go to the senior level, very senior police do take reports but for a low caste person who doesn’t dare talk to you know people of other castes, how can you expect him to go to that high a level. If he goes – all he will go is go to the police and even the police disrespect him and not take complaint, how can a low caste person think of going to district, supreme level and access that, it is just not possible and also, member, you will see from the reports that the constitution guarantee all those things have no meaning for a low caste person and the reports provide that as well and some of the reports call India a place there is no law and there is token rights and constitution guarantees there is just no meaning at all, so against the police, he can’t access protection from police because police do not provide protection for low caste people, in fact they are used by high caste people as instrument of oppression on the low caste people. So that is all I want to say.
The Tribunal’s reasoning
Under the heading “Findings and Reasons”, the Tribunal summarised the applicant’s claims at the commencement of its discussion:
The applicant arrived in Australia about eleven years ago and subsequently lodged an application for a protection visa claiming persecution on the basis of being a member of the Sindhi community in Maharashtra State. He has now claimed that he is also a Dalit and fears persecution on this basis as well. In the course of the hearing, the applicant contended that being Sindhi and Dalit is essentially the same as both groups are low caste.
…
The Tribunal has decided to give the applicant the benefit of the doubt and assess his claims on the basis that he is a Sindhi and Dalit, and as such he is of low caste in India.
The Tribunal then indicated that it accepted the truth of the history given by the applicant as to what had happened to him prior to coming to Australia. It said: “in essence the Tribunal is satisfied that the applicant has suffered what would amount to serious harm as contemplated by the Act, albeit over eleven years ago”.
The Tribunal then referred to what it said was “a number of relevant changes”. It referred to the situation of the Sindhi community in Maharashtra State, and the position politically of the Shiv Sena party, which was no longer in power in that State at the time of the Tribunal’s decision. It referred to material suggesting that Shiv Sena had “become increasingly receptive to the inclusion of non‑Marathi Maharashtrian members in it” and “in a recent episode of bipartisan politics, the Shiv Sena worked with the Congress‑NCP state government to prevent the demolition of a long standing Sindhi suburb which had never been formally approved”.
The Tribunal also addressed the applicant’s situation as a Dalit. It found:
In relation to Dalits, the applicant has provided various reports of the ill‑treatment of Dalits in India. In Amnesty International, India’s Unfinished Agenda: Equality and Justice for 200 Million Victims of the Caste System (6/10/05), it is reported that “...dalits are routinely subjected to beatings, mutilation, murder, rape, and destruction of property by members of the upper‑castes and the police, a culture of impunity ensures that most of the perpetrators go unpunished...Abuses against dalits are numerous and take many different forms...”.
In light of the above country information, the Tribunal is satisfied that whilst there remained some problems concerning the ill‑treatment of Dalits in particular, there have [been] changes in the applicant’s state concerning the Shiv Sena, which was essentially the group feared by the applicant. In consideration of the evidence as a whole, the Tribunal is not satisfied that being low caste (Dalit and Sindhi), without more, means that there is a real chance of the applicant being persecuted as contemplated by the Convention, by the Shiv Sena, and/or the Indian authorities, and/or upper caste people. There are many Indian low caste people who achieved eminent status in India; Not all low caste people are persecuted in India. The Sindhi community in Maharashtra State are not generally ill‑treated. In Maharashtra, the Sindhis have not figured prominently within the xenophobic discourse of the Shiva Sena. Some Sindhis have even held senior positions in the Shiva Sena membership. In consideration of the evidence as a whole, whilst the Tribunal is satisfied that the applicant has suffered what would amount to serious harm as contemplated by the Act, there have been changes, especially in relation to the Shiv Sena and the Sindhi community in Maharashtra State, over the eleven year period during which the applicant has been in Australia which leads the Tribunal to be satisfied that there is no real chance of the applicant being persecuted if he were to return to his State or indeed any other parts of India. In reaching its conclusions, the Tribunal has carefully considered the applicant’s current circumstances. The Tribunal accepts that the applicant has major medical problems, that he would need to find accommodation, employment, that he would need money, that he would need to register, that as an educated person who speaks English, others in the community would ask him for assistance. However, the Tribunal is satisfied that any difficulties he would face on those grounds would not arise from discriminatory treatment related to a Convention ground, or that it would amount to serious harm as stipulated by the Act. In the opinion of the Tribunal, the problems identified by the applicant would naturally be faced by a national returning to their homeland or a migrant. Further, in consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance that the applicant, in the reasonably foreseeable future, would be harassed by high caste people who would object to his assistance of the lower caste people.
The Tribunal has genuine sympathy for the applicant and his circumstances but the Tribunal is not satisfied that there is a Convention reason as to why he cannot return to India.
On the basis of the evidence as a whole, the Tribunal is not satisfied that there is a real chance of the applicant suffering Convention‑related harm in the reasonably foreseeable future.
Therefore, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason.
Particulars of Ground 1
The applicant’s claim is mainly was that he was a Dalit and he was persecuted because of that.
The Tribunal said in its reasons at CB185.7 that:
In consideration of the evidence as a whole, whilst the Tribunal is satisfied that the applicant has suffered what would amount to serious harm as contemplated by the Act, there have been changes, especially in relation to the Shiv Sena and the Sindhi community in Maharashtra State, over the eleven year period during which the applicant has been in Australia which leads the Tribunal to be satisfied that there is no real chance of the applicant being persecuted if he were to return to his State or indeed any other parts of India.
As seen from the transcript on pages 25.5 to 25.9 the applicant’s advisor clearly put the issue that the applicant’s claim is as a low caste person and not as a Sindhi.
The Tribunal’s focus was whether as a Sindhi he has a well founded fear of persecution instead of considering whether he has a well founded fear because he was a Dalit.
The argument indicated in these particulars was elaborated in the applicant’s solicitor’s written and oral submissions. It was submitted that the Tribunal had made the error identified in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389, which was discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. At [63] the Full Court said:
It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.
The Full Court also warned against identifying as claims which were not addressed by a Tribunal, claims which were only obliquely presented to a Tribunal. At [60] they said: “It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it” (see also at [68]).
The applicant’s solicitor submitted that the present Tribunal misconstrued the applicant’s refugee claims because, by dealing with his claims “on the basis that he is a Sindhi and Dalit and as such he is of low caste in India”, the Tribunal did not accurately identify the claims made by the applicant. His solicitor submitted: “being a Sindhi was not his claim”. At other times, his submission was less positive, and contended that being Sindhi was not the applicant’s principal or main claim, and that the Tribunal had misdirected itself by addressing the position of Sindhi’s, and not the position of the applicant as a person who would be identified as a Dalit.
However in my opinion, the Tribunal did not fail properly to identify and address the claims made by the applicant. As I have shown above, the applicant himself presented in his visa statement, and maintained to the Tribunal at the hearing, a claim to be at risk as “low caste Sindhi”. His responses to the Tribunal’s questioning were obscure as to whether he claimed also to be a Dalit caste member, but the Tribunal has given him the benefit of the doubt in that respect. What is clear, in my opinion, is that he did not present to the Tribunal that there was any distinction which he sought to rely upon between his position and the position generally of “low caste people” who were “low caste Sindhi”.
I consider that the Tribunal has addressed the applicant’s claims in its reasoning which I have extracted above. I do not accept that the applicant himself, or his solicitor, presented to the Tribunal a separate claim requiring the Tribunal to isolate a subgroup of Dalit people, whether Sindhi or otherwise, and address them separately. The applicant’s evidence to the Tribunal shows him describing his concerns by reference to low caste people generally in India, and his solicitor’s submissions also did that at several passages, some of which I have extracted above.
The applicant’s solicitor relied in particular on a passage from his oral submissions to the Tribunal, which I have extracted above, where he submitted: “his complaint is not as a Sindhi but as a Dalit or a lowest of class person, that’s his complaint, as a low caste person that he is going to be persecuted, not as a Sindhi”.
However in my opinion, this did not accurately identify to the Tribunal the claims which were, in fact, before it. The solicitor’s ensuing submissions themselves presented the risk to his client as those of low caste persons generally, as is revealed in his closing submission which I have extracted above.
In my opinion the first ground is not made out.
Particulars of Ground 2
The main information about Dalit relevant to the applicant that the Tribunal accepted and stated within its decision states that simply being a Dalit is sufficient to be persecuted. All other country information provided to the Tribunal by the applicant support this as well.
However the Tribunal by making a finding within its “Findings and Reasons” in the following terms stated below was applying the test wrongly as it was requiring a chance of persecution much higher than that required by the real chance test:
There are many Indian low caste people who achieved eminent status in India; Not all low caste people are persecuted in India.
A real chance is that not remote or insubstantial or a farfetched possibility. There may be many prominent low caste Indians but it could be a very small (even minute) percentage. Also by stating “not all low caste people” it is asking for much higher chance of persecution than that required. Had the Tribunal considered the test properly it may have decided that the chance of applicant being persecuted as a Dalit is not remote or insubstantial.
These arguments were repeated in the applicant’s solicitor’s written and oral submissions. He argued that the sentence “there are many Indian low caste people who achieved eminent status in India; Not all low caste people are persecuted in India” revealed the Tribunal reaching its decision upon a misconception as to the “real chance test”.
No authorities were cited to me in relation to the contents of the “real chance test”, and it was not submitted that the Tribunal did not sufficiently identify the relevant principles in the opening passage of its statement of reasons:
Fourth, an applicant’s fear of persecution for a Convention reason must be a “well‑founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well‑founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well‑founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far‑fetched possibility. A person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
The authorities supporting that discussion are discussed by the Full Court in Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 (“Applicants A233”) from [11], and in my decision in SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 from [19]. In Applicants A233, the Full Court referred to Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, and said at [12]:
As Sackville J pointed out at 239, [60], the ultimate question for the Tribunal is whether it is satisfied that a visa applicant has a well‑founded fear of future persecution, that is has a real substantial basis for the fear that something will occur or will occur for a particular reason. In forming that view, the Tribunal may not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
In the present case, I do not consider that the sentence identified by the applicant’s solicitor revealed the Tribunal making that error, nor as misapprehending the degree of probability that can give rise to a finding of real chance. The sentence has to be read in context. So read, the sentence is intended to provide some explanation of the preceding sentence: “the Tribunal is not satisfied that being low caste (Dalit and Sindhi), without more, means that there is a real chance of the applicant being persecuted as contemplated by the Convention …”. The challenged sentence should not be understood to be doing more than this.
It was not submitted that this conclusion was not open on the evidence before the Tribunal. Moreover, I could not find, nor was it submitted, that the Tribunal’s ultimate conclusion, which is properly framed in terms of the “real chance test”, was one that was not open or itself revealed error of law. That finding was:
In consideration of the evidence as a whole, whilst the Tribunal is satisfied that the applicant has suffered what would amount to serious harm as contemplated by the Act, there have been changes, especially in relation to the Shiv Sena and the Sindhi community in Maharashtra State, over the eleven year period during which the applicant has been in Australia which leads the Tribunal to be satisfied that there is no real chance of the applicant being persecuted if he were to return to his State or indeed any other parts of India.
For the above reasons, I am not persuaded that anything in the Tribunal’s reasons shows any error in relation to the “real chance test”, and I do not accept the second ground of review.
Particulars of Ground 3
The particulars of this ground were:
The Tribunal did not, as the decision in Randhawa requires, give proper consideration (as compared to a token one) to the practical realities facing the applicant with respect to various factors stated below, should he return to Maharashtra or seek to relocate within India. These factors are:
(a) he has major medical problems (b) no money (c) don’t know anyone in India (d) discriminated based on caste (e) need to register (f) difficulty with accommodation (g) may need to assist low caste people.
The Tribunal dealt with the relocation issue in a summary fashion. The Tribunal didn’t deal with the specific claims of this applicant as many of the applicant’s unique problems are not shared by nationals returning to India. Such as (a) he has major medical problems (b) no money (c) don’t know anyone in India (d) discriminated based on caste etc. The Tribunal did not ask “How would this applicant survive with the specific problems he is facing?”. Without asking this question the Tribunal abruptly made a decision that many of the problems are common to returnees or migrants.
Current authorities allow a Tribunal to affirm a delegate’s refusal of a protection visa, after arriving at a conclusion that an applicant faces a real chance of persecution in one part of his country of nationality, by finding that he would not face such a chance in another part of his country. The relevant principles were discussed in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 (“NAIZ”) which considered Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”). The solicitor for the applicant referred me to [22] and [23] per Branson J in NAIZ, with which North J, agreed:
22I do not accept the appellant’s submission that there was no probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate within Fiji. However, the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no-one in Fiji ‘to look after her’, causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji. The Tribunal did not, as the passage from Randhawa set out in [16] above requires, give consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji. This is not to say that it was not open to the Tribunal to conclude that the appellant could deal with those practical realities, perhaps with financial help from her daughter. However, the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.
23For the above reasons, in my view, the Tribunal’s reasons for decision reveal that it misconceived the elements of the test for determining whether the appellant is a person in respect of whom Australia owes protection obligations under the Convention within the meaning of s 36 of the Act. The Tribunal appreciated that it was required to consider the ‘internal flight alternative’, and that for that purpose it was required to determine whether it would be unreasonable for the appellant to relocate within Fiji. However, I am satisfied that, because it misconceived the content of the requirement that it not be unreasonable for the appellant to relocate within Fiji, it did not ask itself the right questions before determining that it was not satisfied that the appellant is a person in respect of whom Australia owes protection obligations under the Convention. Consequently, in my view, the decision of the Tribunal is not a decision made by it under the Act in the sense discussed by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 (see also Craig v South Australia (1995) 184 CLR 163 at 179). The learned Federal Magistrate, in my view, erred in rejecting the appellant’s claim for judicial review of the decision of the Tribunal.
NAIZ was a case where the Tribunal decision had, it would seem, arrived at a finding that the appellant would face a real chance of persecution for a Convention reason if she returned to her previous home or place of residence.
However, in the present case the Tribunal did not make such a finding. It considered the applicant’s position in relation to the Convention broadly if he returned to live anywhere in Maharashtra State, addressing both his fears based on caste and his concerns in relation to personal hardships if he returned. I do not read any part of its reasoning which I have extracted above as purporting in any way to address the applicant’s situation in relation to relocation to avoid Convention persecution under authorities such as Randhawa and NAIZ. I do not consider that the Tribunal was obliged to consider issues arising under those authorities.
In my opinion, a careful reading of the long paragraph in the Tribunal’s concluding reasoning which I have extracted above, shows that its reference to the applicant’s major problems if he returned to India was not for the purpose of dismissing them as showing no reasonable reasons for not going back to India, but as further explanation of its conclusion that if he did return he would not face a real chance of being persecuted for a Convention reason.
The Tribunal accepted that the applicant faced some personal hardships if he returned to India, and that these might provide compassionate circumstances for the applicant not to be required to return to India. However, it concluded that his fears in relation to hardships were not covered by the Refugee’s Convention. After rejecting the applicant’s fears based upon caste, it found: “there is no real chance of the applicant being persecuted if he were to return to his State or indeed any other parts of India”. It then explained that it had addressed his other concerns, to see whether they could provide an alternative Convention ground. It said: “in reaching its conclusions, the Tribunal has carefully considered the applicant’s current circumstances”. The relevance of its discussion of those circumstances is then shown by the Tribunal’s finding:
However, the Tribunal is satisfied that any difficulties he would face on those grounds would not arise from discriminatory treatment related to a Convention ground, or that it would amount to serious harm as stipulated by the Act.
I consider that this ground is misconceived, and that the Tribunal has made no error such as was found in NAIZ.
For the above reasons I do not accept any of the grounds argued for the applicant, and I must dismiss the application.
I certify that the preceding forty‑three (43) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 16 February 2007
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