S1983 of 2003 v Minister for Immigration
[2005] FMCA 1665
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1983 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1665 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 474, 483A
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 554
Minister for Immigration & Multicultural & Indigenous Affairs v Anthonypillai [2001] FCA 274
Re Minister for Immigration & Multicultural Affairs; Ex parte Holland [2001] HCA 76
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Perampalam v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 84 FCR 274
Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574
WAHK v Minister for Immigration & Multicultural & Indigenous Affairs [2004) FCAFC 12
WAFH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 429
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87
Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 239
| Applicant: | APPLICANT S1983 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3025 of 2004 |
| Delivered on: | 22 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr T Silva of Silva Solicitors |
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3025 of 2004
| APPLICANT S1983 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
31 May 1999, affirming the decision of the delegate of the respondent (“the delegate”) made on 2 October 1997 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “Applicant S1983 of 2003”.
Background
The applicant, who claims to be a citizen of India, arrived in Australia on 26 November 1993. On 26 July 1997 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-29) (“CB”). On 2 October 1997 the delegate refused to grant a protection visa (CB pp.35-43) and on 15 October 1997 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.46-49).
In a statement accompanying his protection visa application, the applicant stated he was born in Bombay in Maharashtra State in India in 1956 and that he belongs to the Sindhi community that lives “in the midst of the local Maharashtrians”. He stated he had studied at the Government Municipal School and completed his middle and secondary school education in Bombay. The applicant claimed that when he finished his education he was forced to look for a job and ended up doing work as a handy man in and around his home town. He claimed his father was killed by “Shiv Sena hooligans, the fundamentalist Hindu religious groups who hated [the applicant] and his families being Sindhi community since we belong to the low caste”. The applicant claimed that, having lost his father in riots, responsibility for the family fell to him since he was the only son of his parents (CB p.26).
Applicant’s claim
The relevant background facts of the applicant are set out in the written submissions prepared on behalf of the respondent by Ms Clegg and
I adopt paragraphs 11-13 for the purpose of this judgment:
The applicant provided details of his claim in his original application for a protection visa (CB 12-28) and his application to the Tribunal (CB 46-48). The applicant provided further details of the claims during the oral hearing. The Tribunal summarised the applicant’s claims at CB 66-68. In short, the applicant claimed:
a)he was born and lived in the state of Maharashtra where he belonged to the Sindhi community;
b)his father was killed by Shiva Sena fundamentalist Hindus because he was from a lower caste;
c)having lost his father, responsibility for the family fell upon him;
d)he and his mother were constantly harassed by local Shiv Sena people. They burned down his shop and stole his belongings and he had to escape to save his life;
e)he complained to the police but they did not help him;
f)the Shiv Sena people threatened to kill him if he continued to live in India;
g)his family was the only local Sindhi family;
h)after he left his home and came to Australia his mother was harassed and taunted. She died from shock in 1995;
i)he is afraid to go back to India since the local police, the secret police and Indian authorities cannot protect him;
j)the Indian government encourages fundamentalists to “kill and eradicate” low caste people.
At the hearing the Tribunal questioned the applicant as to why, having arrived in Australia in November 1994 he did not lodge a protection visa application until July 1997 when he was detained by immigration authorities (CB 67.6-67.10). The Tribunal also queried the accuracy of the applicant’s claims concerning the treatment of lower caste people in India, and his claim that the government encourages fundamentalists to kill and eradicate lower caste people (CB 68). The Tribunal raised with the applicant the question of why he could not relocate to another part of India where Shiv Sena were not so powerful. The applicant responded that he was too poor to relocate (CB 68.4).
Effectively the Tribunal put to the applicant the substance of independent country information which suggested that a number of his claims were unsupportable.
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions prepared by Ms Clegg and I adopt paragraph 14 for the purpose of this judgment:
In arriving at its decision the Tribunal had regard to extensive independent country information. This information is extracted at CB 69-74 and from CB 78. The Tribunal:
a)accepted the applicant’s claims that he and his family had suffered as members of the Sindhi minority in India and as low caste Hindus;
b)accepted it was plausible that hostility to people from Pakistan would spill over into hatred of Sindhi Hindus, particularly where they are of low caste;
c)did not doubt the applicant’s claim that his father was killed in a communal riot and that the applicant’s shop was destroyed in a riot;
d)noted that the independent evidence indicated that Shiv Sena in Bombay is intolerant of minorities and that this intolerance is supported by the State government which they dominate;
e)could not find any support for the applicant’s claim that the Indian government encourages fundamentalist people to kill and eradicate low caste people;
f)accepted independent country information that the government through constitutional and legislative provisions is taking steps to address discrimination experienced by scheduled castes;
g)accepted that inter-caste tensions and communal violence occurs regularly in India. However noted that most federal and state governments take active steps to put an end to the violence;
h)found that it would not be unreasonable for the applicant to relocate to another part of India where caste discrimination is not so prevalent and where state protection would be available;
i)found the applicant’s statement that he was too poor to relocate was implausible;
j)sympathised with the applicant’s circumstances but found that any harm occasioned to the applicant arising from poverty is not Convention related harm; and
k)concluded that it was not satisfied that there was a real chance of the applicant facing persecution on the basis of his membership of a particular social group or for any other reason.
Application for review of the Tribunal’s decision
On 8 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 17 December 2004 the applicant filed an amended application. On the day of the hearing, the applicant sought leave to file a further amended application and sought to rely upon that document for the purpose of the hearing. Counsel for the respondent did not oppose the applicant’s application and consequently leave was granted.
The further amended application contained the following grounds:
The Tribunal made jurisdictional error as it held that the Applicant’s fear of persecution was not well founded based on critical findings which were without evidence.
Particulars
On page CB 75.30 the Tribunal says:
(a)“However, the independent evidence indicates that most state and federal governments take active steps to put an end to communal violence.”
On page CB 75.40 the Tribunal says:
(b)“However, the independent evidence indicates that the Indian authorities act to restore order in situation of civil disturbance and take action against those who have committed criminal offences.”
The Tribunal made jurisdictional error in that it used the wrong test in deciding whether the state protection is available for the Applicant in India.
Particulars
On CB 65.40 the Tribunal says:
“the persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality …”
However, the Tribunal failed to apply the above test in that it failed to consider whether the violence against low caste people such as the applicant was uncontrollable by the authorities.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Legal framework
A convenient summary of the applicable legal framework was contained in the respondent’s written submissions prepared by Ms Clegg and I adopt paragraphs 8-10 for the purpose of this judgment:
The application to the Tribunal was made on 15 October 1997. Accordingly the Tribunal’s decision must be viewed in light of the provisions of the Act in force at that time. However, nothing turns on this in these proceedings, as the applicant makes no complaint concerning the Tribunal’s application of the Act. Nor can any error be discerned concerning the Tribunal’s application of the provisions of the Act as in force at the time.
However, for the Court’s convenience, it is noted that the provisions of the Act which applied to the present decision, having been made on
31 May 1999, were different in many respects to the current provisions concerning the manner of review by the Tribunal contained in Division 4 of Part 7 of the Act: Migration Legislation Amendment Act (No. 1) 1998 (Act number 113 of 1998) by Schedule 3 of the Amendment Act, significantly amended the provisions of Division 4 of Part 7 of the Act relating to the conduct of a review by the Tribunal. The amendments commenced on 1 June 1999. The decision was made by the Tribunal in this case on 31 May 1999. The transitional provisions provided that the Amendment Act applied to the existing applications for review if the application had been made before the commencement of Schedule 3 and the review had not been completed under section 414 of the Act before the commencement. In the present case the review had been completed. Accordingly, the old provisions in force up until 1 July 1999 apply to this decision.Accordingly, the common law rules of procedural fairness apply to the Tribunal’s conduct of the review.
Submissions
Both parties filed written submissions prior to the hearing which were supplemented by oral presentations during the hearing. The applicant filed two affidavits, the first containing a transcript of the hearing conducted by Tribunal member, Mr R Whitton, on 17 May 1999 and a second addressing the issues of delay that occurred between
20 February 2004 when the matter was dismissed in the Federal Court by His Honour Emmett J and the filing of the application in these proceedings on 8 October 2004. No objection was raised in respect of admitting the two affidavits into evidence. However, it was indicated by the Counsel for the respondent that the issue of delay was not being pressed. In respect of the transcript of the original proceedings before the Tribunal, no direct reference was made to the contents of the transcript by either Counsel in the written or oral submissions.
Reasons
The applicant argued that two findings made by the Tribunal supported the contention contained in Ground 1. Those findings were:
“However, the independent evidence indicates that most state and federal governments take active steps to put an end to communal violence.” (CB p.75.3)
and
“However, the independent evidence indicates that Indian authorities act to restore order in situations of civil disturbance and take action against those who have committed criminal offences.” (CB p.75.4)
The applicant contended in support of that argument there was no evidence that the federal government takes active steps to put an end to communal violence. All the information is to the contrary and this was demonstrated by several pieces of country information compiled by the Tribunal. The applicant also argued that it should be noted that at the time of the hearing it was the BJP Party who was running the central government of India and the Shiv Sena formed part of that government (CB p.142.4). To support those contentions raised by the applicant, Mr Silva referred the Court to a serious of extracts from the decision and the independent country information arguing against those two findings.
In the country information, extracted from a variety of sources and contained within the Court Book, Mr Silva referred to the following passages:
“On 30 January 1999, just days after an Australian Baptist missionary and his two sons were burned alive by Hindu extremists, Indian Parliamentary Affairs and Tourism Minister Maden Lal Khurana resigned his position, reportedly stating that he was ashamed to be part of a government that could not protect the lives of minorities (WEF n.d.).” (CB p.135.40)
and
“Government action at the time of the January riots is considered to have been seriously inadequate …”. (CB 114.40)
These passages were submitted in the context that it was the Congress Government (opposed to Hindu fundamentalism) that was in power at the time of the above riots in Ayodhya.
In respect of the state governments, the country information stated:
“MUCH less is heard these days from the ruling Bharatiya Janata Party about its pro-Hindu policies. The survival of its coalition of unreliable allies is the BJP’s main aim. But away from Delhi the party continues to spread a culture of intolerance in the states where it rules, aiming its darts at Muslims, India’s largest religious minority.
Schoolbooks are being rewritten in Uttar Pradesh to disparage Muslim historical figures, and in Gujarat, another BJP-ruled state, inter-religious marriages are officially discouraged. But the BJP’s Hindu-chauvinist face is particularly evident in Maharashtra ….” (CB p.117)
and
“In Bihar violence spilled over in the early part of the year from the December 1, 1997 massacre of 63 Dalits (formerly “untouchables”) in Lakshmanpur Bathe village by the Ranvir Sena, a militia controlled by high-caste landlords. There were reports that five teenage girls were raped and mutilated before being killed in the attack. On January 9, members of a violent left-wing organization, the Communist Party of India-Marxist-Leninist (Liberation), killed nine persons belong to the upper-caste Bhumihar and Brahmin community of Rampur-Chauram village, Jahanabad district, in apparent retaliation for the Lakshmanpur Bathe killings. More than 60 people died in caste-related violence in the state during the first 9 months of 1998. On February 26 in Gunupatti, Tamil Nadu, police ad other armed persons attacked Dalits and bonded laborers in two villages in Kukook Panchayat. Homes were looted and destroyed in the incident, which was apparently carried out in retaliation for the villagers’ boycott of national elections. In Andhra Pradesh, the NHRC launched an investigation into the killing of at least eight Dalit villagers in Vempenta village, Kurnook district on July 16. In a complaint filed with the NHRC, Human Rights Watch alleged that the murders were carried out by high-caste landlords of a neighboring village in the belief that the Vempenta villagers were sympathetic to the People’s War Group, a radical Marxist-Leninist organization. In February the National Commission for Scheduled Castes and Scheduled Tribes warned that increasing caste violence could force Dalits into militancy. “Whenever Dalits have tried to organize themselves or assert their rights, there has been a backlash from the feudal lords resulting in mass killings of Dalits, gang rapes, looting and arson”, the Commission wrote.” (CB p.155)
This extract reported on the killings of low caste people in Tamil Nadu where people were involved and also the killings in Andhra Pradesh. In the Tribunal’s decision, under the heading “Claims and Evidence”, the Tribunal stated:
“The applicant was asked about situations such as in the state of Bihar where the state government had prosecuted high caste people for oppressing low caste people.” (CB p.68)
and later in that section, the Tribunal stated:
“An Asiaweek article stated that the Bihar authorities had taken few steps to convict upper caste Hindus and farm owners for allegedly massacring members of the lower castes – no mention was made of the accused being directly encouraged by the Indian government (Singh, A. 1996, ‘Curse of the Castes’, Asiaweek,
18 October (RRT General Papers).” (CB p.73)
However, in the article appearing in Asiaweek headed “Curse of the Castes”, it was stated:
“Nearly half of the some 70 men responsible are in custody, though it is unclear if they will be tried or eventually freed. The rest have not been tracked down, even though the killings occurred less than 500 meters from three police camps with
18 armed guards. Officially, the bloodbath is still an unsolved crime. Yet most everyone in the area knows who did it and who hired the killers.” (CB p.137)
It was submitted by Mr Silva for the applicant that considering the evidence as a whole, the Tribunal could not have been satisfied that the government actively provided protection from communal violence in the form of timely protection which is vital to saving lives.
In respect of the second finding, Mr Silva again referred the Court to the contents of the country information of a DFAT cable which contained the statement:
“Government action at the time of the January riots is considered to have been seriously inadequate …”. (CB 114.40)
Mr Silva reinforced that it was the Congress Government (opposed to Hindu fundamentalism) that was in power at the time of the above riots in Ayodhya and it was submitted that considering all the country information stated under findings (a) and (b) of Ground 1, it was clear that there was no evidence for these Tribunal findings. It was submitted by Mr Silva that if the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding, then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond at 355-357; see also Curragh Queensland Mining Ltd v Daniel per His Honour Black CJ with whom Spender and Gummow JJ agreed at 220-221:
“A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.
If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.”
Ms Clegg for the respondent contended that the applicant’s claim went further than this in that the applicant claimed that the Indian government encouraged fundamentalist people to kill and eradicate low caste people: CB 67.4, 68.5. The Tribunal found that it could find no support in the country information for such a claim: CB 75.2. In another respect the applicant’s submissions ignored the Tribunal’s acknowledgement that there is a Shiv Sena tolerance in Bombay which is supported by the state government there: CB 75.1 and that there is evidence of inter-caste violence: CB 75.3 and that no state can assure completely safety of all citizens: CB 75.4. Further, the applicant’s submissions failed to highlight the independent country information considered by the Tribunal which supported the Tribunal’s findings. For example:
“No information was found in the sources consulted relating to the Indian governments encouraging fundamentalists to ‘kill and eradicate’ people from lower castes.” (CB p.70.2)
“No information was located relating to specific Shiv Sena targeting of the Sindhi community during the riots in the sources consulted.” (CB p.72.1)
“In August 1998, a judicial commission of inquiry criticised the Shiv Sena for its involvement in communal riots. The judicial commission of inquiry blamed the Shiv Sena for organising attacks on Muslims, with the commission’s judge, B N Srikrishna stating that Thackeray commanded the attacks by the Shiv Sena cadres ‘like a veteran military’.” (CB p.72.8)
“In addition, a report by Amnesty International stated that, ‘police in the lower ranks were said to have sided with the Shiv Sena party, which itself was accused of instigation the riots’. However other police were praised for acting impartially.” (CB p.72.9)
“No information was found in the sources consulted relating to the Indian government’s encouragement of killing ‘low caste’ Hindus.” (CB p.73.4)
“Situation of Low Caste Indians” (CB pp.73.5-74.7)
“In the 1990 assembly elections the Shiva Sena for the first time extended its base beyond metropolitan Bombay. Its political base nevertheless remained largely confined to Bombay and its constituency of Maharashtrian intermediate-caste Hindu industrial workers.” (CB p.113.1)
“Government action at the time of the January riots is considered to have been seriously inadequate, although the centre did take strong subsequent measures such as dismissing the Maharashtra Chief Minister for his failure to keep the peace. The Minister of State for Home Rajesh Pilot eventually registered four cases against Thackeray for his inflammatory statements issued in ‘Samna’, and the government later ordered a judicial enquiry into the riots.” (CB 114.4-114.5)
“Our NGO interlocutor is in our view correct in stating that, given the complexities outlined, it is futile to try and give a definite profile of someone who might face a real threat from the Shiv Sena and it was in fact necessary to look at individual circumstances. Such circumstances in his view (and we agree) would be unusual and highly particular.” (CB p.116.2)
“Clause 19(1) of the constitution of India guarantees Indian citizens certain rights and freedoms, including the rights ‘to move freely throughout the territory of India’, ‘to reside and settle in any part of the territory of India’ and ‘to practise any profession, or to carry on any occupation, trade or business”. However, these rights are subject to ‘reasonable restrictions’, as imposed by law ….” (CB p.121.3)
“According to Spellman, at present there are no checks of any kind on a newcomer to any part of India arriving from another part of India, even if the person is a Punjabi Sikh. The local authorities would not report a newcomer to local police, and the local police are not interested in newcomers.” (CB p.121.7)
Counsel for the respondent submitted that it was for the Tribunal to decide what information it takes into account and the weight it attaches to that information: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs per Gray, Tamberlin and Lander JJ at [11]:
“… By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
Ms Clegg drew the Court’s attention to the fact that at the time the Tribunal’s decision was made s.424(1) was not contained in the Act. However, this does not diminish the force of the above statement by the Full Federal Court: see general discussion concerning the “No evidence” as a ground of review in Aronson, Dyer & Groves, Judicial Review of Administrative Action, 3rd Edition at p.239 where the learned authors state: “The no evidence ground cuts out whenever a skerrick of evidence appears”.
To the extent that this Court is being invited to make its own assessment of the truth of the country information that would require the Court to enter into a merits review. A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision that could be made in the circumstances.
A merits review provides a complex rehearsal of all the issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application unfettered by the earlier decision or the reasons of the decision for the earlier decision. A merits review determines the correct preferable decision in all the circumstances: SZECD v Minister for Immigration & Multicultural & Indigenous Affairs. I accept the respondent’s submission that it is for the Tribunal to decide what information, in this case being the country information, that it will take into account in its decision making process. Should there be a factual mistake or wont of logic in the application weighting of that material, it would not lead to a ground for judicial review: Minister for Immigration & Multicultural & Indigenous Affairs v Anthonypillai. The High Court has also held that should the Tribunal make a wrong finding of fact; again this does not lead to a reviewable error: Re Minister for Immigration & Multicultural Affairs; Ex parte Holland.
The applicant submitted that the Tribunal failed to apply the correct test in determining whether violence against low caste people, such as the applicant, was uncontrollable by the authorities. In support of this contention, the applicant relied on four passages in the Tribunal’s decision (CB p.75.5). The applicant submitted the correct test in relation to the issue of state protection is whether the state protection is effective and meaningful. The test of sufficiency of protection is defined in terms of practical realities – whatever the formal position of the state (in this case India), whether there is a de facto failure for protection, grounded in intention, indifference or incapacity. The applicant submitted that in this particular case the Tribunal did not address the issue of whether the state protection was effective or not and whether the state of India had the capacity to provide effective protection if the applicant moved to another state in India. Instead, the Tribunal approached the issue on the basis of whether, given the applicant’s skills, it would be reasonable for the applicant to relocate elsewhere in India. Thus, it was submitted, the Tribunal made an error of law going to jurisdiction.
In the Tribunal’s decision, under the heading “Findings and Reasons”, the Tribunal stated:
“The Tribunal finds the applicant has relocated to Australia for some four and a half years and he holds a bachelor’s degree and an electrician’s diploma indicating that he has skills that are readily transferable to live elsewhere in India. In the light of this, the Tribunal finds it is reasonable for him to relocate to some other area of India where he would be at some distance from the danger he feels in Maharashtra state.” (CB p.75.7)
The applicant relied on the passage from Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (“Randhawa”) per Black CJ at 134 where His Honour quotes with approval from Hathaway: The Law of Refugee Status (Toronto: Butterworths, 1991):
“The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, State accountability for the harm is established and refugee status is appropriately recognised.”
The applicant contended that the Tribunal failed to properly apply itself to considering the issue of reasonableness of the applicant’s relocation and this question entails consideration of whether the Tribunal “simply did not examine at all various aspects of the evidence” and so “did not deal with the essential aspects of the applicant’s case”: Perampalam v Minister for Immigration & Multicultural & Indigenous Affairs per Burchett and Lee JJ at 284 and Moore J at 290.
The respondent contended it was clear the Tribunal applied the proper test for persecution: CB p.65.1-65.5. The respondent acknowledged it was true in Minister for Immigration & Multicultural Affairs v Khawar the High Court rejected the proposition that before an act could constitute persecution in the sense used in Article 1A(2) of the Convention, the act must be officially sanctioned. However, the question for the Tribunal is ultimately whether the government is willing and able to protect the applicant. The Tribunal did address this question and accordingly there is no jurisdictional error. Counsel for the respondent referred the Court to similar arguments that were made by the applicants and rejected by the Full Court in WAHK v Minister for Immigration & Multicultural & Indigenous Affairs per Lee, Tamberlin and R D Nicholson JJ at [22]:
“Therefore, the real question that the RRT had to ask and answer was whether the interim government was willing and able to protect the appellant in Ghazni province from such acts, whether committed by remnants of the Taliban, the Pashtun, or other ethnic groups: see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD at 409 [27]. In stating that it was not aware of any reports of mistreatment of Hazaras by the Northern Alliance or Pashtun in the few months since the overthrow of the Taliban government, the RRT could not be taken to have made a finding that there was no real risk of persecution being suffered by the appellant in the future.”
See also: WAFH v Minister for Immigration & Multicultural & Indigenous Affairs per Lee, Hill and Tamberlin JJ at [20]-[36].
The respondent submitted it was clear there was independent country information before the Tribunal to support its finding that the authorities made attempts to control violence against low caste people.
I accept the respondent’s submission that the Tribunal sets out the proper test in its decision under the heading “Refugees Convention”. The Tribunal then considered a number of independent country reports prepared by various organisations which addressed the situation of low caste minority groups in the state of Maharashtra and in particular within the city of Bombay. The consideration of that material led the Tribunal to the finding that there was no support of the applicant’s contention that the Indian government encouraged fundamentalists to “kill and eradicate low caste people”. In fact, the Tribunal found that the Indian government, through constitutional and legislative provisions, was taking steps to address discrimination experienced by scheduled castes (CB p.75).
As discussed above, it is the Tribunal’s inquisitorial function to examine whatever material it deems appropriate to assist it in its decision making role. The Tribunal clearly sets out the criteria to be used in its deliberations and then refers to the material that it considered in order to reach its decision. The Tribunal obtains its powers to make this determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds: Minister for Immigration & Multicultural Affairs v Eshetu per Gummow J at 145. There were no submissions either made by the applicant or that have become apparent from the reading of the decision that that determination was based on illogical or irrational findings or inferences of fact that may be shown to have no better foundation than an arbitrary decision: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 per McHugh and Gummow JJ at [54]-[59]; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs per Lee, Moore and R D Nicholson JJ at 22; WAHP v Minister for Immigration & Multicultural & Indigenous Affairs per Lee, Carr and Tamberlin JJ at [7]. I accept the respondent’s submissions that the independent country information before the Tribunal supports its finding that the authorities made attempt to control violence against low caste members of the community.
The respondent submitted and I accept that the Tribunal’s finding regarding relocation had been made upon the consideration of independent country material as its foundation. The respondent submitted that the authority of Randhawa as cited by the applicant confirmed that the Tribunal’s finding on relocation was proper and within jurisdiction.
Conclusion
The grounds pleaded on behalf of the applicant cannot be sustained and I have not been able to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 November 2005
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