Syan v Refugee Review Tribunal

[1995] FCA 1053

CATCHWORDS

IMMIGRATION LAW - Refugees - internal flight - proper test to be applied - consideration of internal flight on assumption that other requirements satisfied not an error of law - whether permissible approach.

IMMIGRATION LAW - Refugees - persecution - extortion with violence - advice that extortion common in applicant's country - whether failure to consider whether extortion amounts to persecution in circumstances.

IMMIGRATION LAW - Refugees - well founded fear of persecution - objective element - proper consideration of objective basis at time of decision - relevance of advice that foundation for fear generally abated.

Administrative Appeals Tribunal Act 1975 (Cth)
Convention Relating to the Status of Refugees
Protocol Relating to the Status of Refugees

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Immigration and Naturalisation Service v Cardoza-Fonseca (1987) 480 US 421
R v Secretary of State for the Home Department; Ex parte Sivakumaran [1988] AC 958
Minister for Immigration, Local Government and Ethnic Affairs & Anor v Mok Gek Bouy (1994) 127 ALR 223
Randhawa v Minister for Immigration, Local Government and Ethnics Affairs (1994) 52 FCR 437

RAM KUMAR SYAN v REFUGEE REVIEW TRIBUNAL AND ANOR
No. NG846 of 1994
Beazley J
21 December 1995
Sydney

IN THE FEDERAL COURT OF AUSTRALIA )
  )     No. NG846 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )    
  )
BANKRUPTCY DIVISION              )

RAM KUMAR SYAN
  Applicant

MS HAYWARD, MEMBER, CONSTITUTING

THE REFUGEE REVIEW TRIBUNAL
  First Respondent

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

CORAM:BEAZLEY J

PLACE:    SYDNEY
DATE:     21 December 1995

SHORT MINUTES OF ORDER

The Court orders that:

1. The application be dismissed.

1. The applicant pay the second respondent's costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )     No. NG846 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )    
  )
BANKRUPTCY DIVISION              )

RAM KUMAR SYAN
  Applicant

MS HAYWARD, MEMBER, CONSTITUTING

THE REFUGEE REVIEW TRIBUNAL
  First Respondent

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

CORAM:BEAZLEY J

PLACE:    SYDNEY
DATE:     21 December 1995

REASONS FOR JUDGMENT

BEAZLEY J: This is an application brought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to review the decision of the first respondent that a protection visa cannot be granted to the applicant as he is not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967). I will use the term Convention to refer to both the Convention and the Protocol.

The applicant is a citizen of the Republic of India and is of the Sikh faith.  It is uncertain whether he was born in Goa or in the Indian state of the Punjab, although it is clear that he has, at least, lived most of his life in the Punjab.  He is a carpenter by occupation, having learned that trade from his father.  He worked initially in his father's business and later established his own carpentry business which was reasonably prosperous.  He also worked for other employers during this period.  In 1990 he moved to Bombay where he lived and worked until 1992, when he came to Australia.  In Bombay he earned considerably more than he had earned in the Punjab.  The applicant is married and has four children, aged from 18 years to 13 years.  His wife and children have at all times remained in the Punjab.

The applicant first came to Australia on a visitor's visa on 17 October 1992 and has remained here since.  Upon entry he was granted an Australian entry permit valid for one month.  Prior to the expiration of his entry permit he applied for refugee status.  That application was rejected by the Refugee Review Tribunal (the Tribunal) on 2 November 1994 on the basis that the applicant was able to live safely in India outside the Punjab.  It reached this conclusion without having determined whether the applicant had a well founded fear of persecution based upon a Convention reason.  The notion of safety within another part of one's country has been described in a number of ways, including as the principle of "internal flight".  This was the description used by the Tribunal and is the term I will use in these reasons.

The applicant contends that the Tribunal erred in its determination in three respects.  It was submitted: first,  that the Tribunal adopted a wrong approach in law in dealing with the issue of internal flight without first having determined whether the applicant satisfied the Convention definition of refugee; secondly, that the Tribunal failed to address the correct test as to internal flight; thirdly, that the Tribunal erred in law in its application of the meaning of persecution to the applicant's circumstances; fourthly, that the Tribunal failed to take into account the applicant's subjective fear in determining whether the applicant was a refugee.

Meaning of refugee
Australia has adopted obligations to protect persons who are refugees within the meaning of Article 1A(2) of the Convention.  The Convention defines "refugee" relevantly as:

"A. ...the term 'refugee' shall apply to any person who:

...

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

In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, the High Court held that the phrase "well-founded fear" in the Convention definition of "refugee" had both a subjective and an objective requirement.  Dawson J
stated at 396:

"There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear." 

A fear may be well founded even though persecution is  unlikely to occur.  In Immigration and Naturalisation Service v Cardoza-Fonseca (1987) 480 US 421, the United States Supreme Court stated that an applicant for refugee status may have a well-founded fear of persecution even though there was only a 10% chance that the applicant may be persecuted. A far fetched possibility must be excluded. However, if there is "a real chance" of persecution, the fear should be characterised as "well-founded": Chan per McHugh J at 429.  In undertaking an objective examination of the facts to determine if a subjective fear of persecution is well-founded, the decision-maker is not confined to those facts which induced the applicant's fear: Chan per McHugh J at 429; R v Secretary of State for the Home Department; Ex parte Sivakumaran [1988] AC 958. The time at which it must be determined that there is a well-founded fear of persecution is at the time the determination as to refugee status is made: Chan per Mason CJ at 386-7; Minister for Immigration, Local Government and Ethnic Affairs & Anor v Mok Gek Bouy (1994) 127 ALR 223 at 250 per Shepherd J.

The Convention definition of refugee applies to a person at risk of persecution in the country of that person's nationality.  It does not apply to a person who may have a well founded fear of persecution for a Convention reason within a region or state of that person's country. In dealing with the principle of internal flight, Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnics Affairs (1994) 52 FCR 437 at 440-441 stated:

"Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.  The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country." (emphasis added)

Whether Tribunal erred in law in dealing with the issue of internal flight without having determined the question whether the applicant had a well founded fear of persecution based upon a Convention reason

The applicant concedes that the Tribunal correctly stated the legislative framework and referred to the relevant authorities on the meaning of refugee for the purposes of the Convention. However, counsel for the applicant submitted that the Tribunal erred in law in failing to first determine whether the applicant had a well founded fear of persecution based upon a Convention reason before considering the issue of "internal flight".   By adopting this approach, the Tribunal thereby abrogated its obligation to determine whether the applicant had satisfied the Convention definition of refugee, as discussed and explained in Chan's case.  Further, it was submitted that the Tribunal could not fairly consider the internal flight issue without first having determined whether the applicant had a subjective fear based on reasonable grounds of persecution for a Convention reason. 

Counsel for the respondent submitted that it was open to the Tribunal to deal with the various elements required for an applicant to satisfy the Convention definition in any order it considered appropriate.  The Tribunal could thus consider first the question whether there was a real chance of persecution in the country as a whole.  If it determined that question against the applicant, it was not necessary to consider the other ingredients of the definition. 

The Tribunal explained its approach at 12:

"[A]n important question in [the] case [is] whether or not there has been a failure of state protection, also known as the 'internal flight' issue or alternative, [sic] the 'internal protection principle', doctrine or principle of 'safe haven' and the 'relocation principle.' In [Randhawa] all these expressions were used."

At 14 the Tribunal stated:

"Exactly at what point the 'internal flight' issue needs to be dealt with is an interesting issue in refugee law.  This Tribunal's view is that failure of state protection is part and parcel of the process in determining whether or not a person is a refugee.  It is not something tacked on the end or in addition to, the Convention definition.  The question of 'internal flight' may be legitimately addressed at different points in different decisions.  The facts of each case and the
Tribunal's discretion determine the most appropriate point.  In the instant case, the Tribunal has exercised its discretion to go directly to this matter of internal flight because the facts and the applicant's evidence compelled such an approach."

The Tribunal returned to the issue at 34 stating:

"It is possible for the Tribunal to work assiduously through each of the applicant's grounds - race, religion, political opinion and particular social group and come to findings in respect of each and every one of the claims and then turn to the key issue in this case - internal flight.  For the sake of argument, the Tribunal could make a finding that everything the applicant claimed happened to him in the Punjab is true, but the issue of internal flight must still be addressed.  The Tribunal prefers to go to internal flight at this point.

Counsel for the applicant acknowledged that although the Tribunal's approach in going directly to the internal flight issue would not necessarily result in an unjust or wrong result, it was an error of principle to deal with a matter by asking the wrong question or adopting an approach which was not open on the legislation.  It is not sufficient for the decision maker to come to a conclusion which, on the application of a proper test, might be open.  See Minister for Immigration, Local Government and Ethnic Affairs & Anor v Mok Gek Bouy where Sheppard J stated at 254:

"[the decision-maker's] reasons conclude with the statement, "When the applicant is returned to Cambodia, she will be sent to an area where there is no Khmer Rouge activity.  On that basis, her fear of persecution by the Khmer Rouge is not well-founded".  On the basis of his evidence earlier quoted [the decision-maker] would wish that passage to be read as if it had said that there was no real chance whatever of persecution.  That may have been a
conclusion which was open to him.  But he does not deal with the matter in that way.  There is not to be found in the reasons any statement which suggests that he turned his mind to the right question, namely, was there a real chance of persecution if [the applicant for refugee status] were returned to Cambodia."

The approach of Sheppard J is clearly correct.  However, I am of the opinion that the Tribunal in the present case did not apply a wrong test.  Rather, it approached the matter on the basis of an assumption, namely that the applicant would otherwise satisfy the Convention definition of refugee.  On that assumption, it considered the question of internal flight.  Had it determined that matter in favour of the applicant, it would have been necessary to determine whether the applicant had a well-founded fear of persecution for a Convention reason.  However, having found against the applicant on the question of internal flight, it was not necessary to determine whether the applicant had a well-founded fear of persecution based on a Convention reason.  In my opinion, it was open to the Tribunal to consider the matter in that way. 

Application of wrong test to issue of internal flight
Counsel for the applicant submitted, alternatively, that even if the Tribunal was entitled to deal with the internal flight issue without having first determined whether the applicant otherwise satisfied the Convention definition of refugee, the Tribunal failed to address the correct test as to internal flight, namely, whether it was reasonable to expect a person to relocate.   This question was addressed in Randhawa.  Black CJ stated at 443:

"If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well- founded."

Beaumont J expressed the same notion in these terms at 451:

"...if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution."

Both Black CJ (at 441) and Beaumont J (at 450-451) accepted the statement by Professor Hathaway:  The Law of Refugee Status, Toronto, Butterworths, 991 at 134 that:

"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 to 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 recognized." (emphasis added)

The Tribunal's findings on internal flight were as follows (at 34):

"The applicant is a citizen of India - not the Punjab state.  He left the Punjab in 1990 and his sworn evidence is that he could and did support himself, secured accommodation, made friends, borrowed money, wore the accoutrements of his faith on and off as he pleased, travelled extensively on his holidays including a return trip to the Punjab, obtained a national passport and so forth.  The Tribunal is well satisfied that this applicant demonstrably is able to live safely outside the Punjab and in fact did so for many years.  The purported arrest warrant, even if accepted as authentic for arguments sake, is only applicable within the Punjab state itself.  There are no practical obstacles to the applicant living elsewhere in India.  He has done it before and he can do it again.  He therefore cannot be regarded as a refugee.  Refugee status is reserved for those cases where national safety is not possible or if the problem is regionalised, moving elsewhere within India is not viable.  The Tribunal is also aware that...many differently constituted  Tribunals have also found that people who are demonstrably able to live outside the Punjab without incident are not refugees...This line of reasoning now occurs so often in refugee applications from Punjabi Sikhs for it to be considered commonplace."

Counsel for the applicant submitted that the latter part of this passage indicated that the Tribunal took an overriding view that Sikhs could live elsewhere without regard to the individual circumstances of the applicant.  However, that interpretation is dispelled when the latter portion is read in context of the passage as a whole.  The applicant's personal circumstances were considered in some detail.  They revealed that the applicant had lived in Bombay for a period of time, was able to be open about his religion and had been in employment there.  Other material available to the Tribunal indicated that Sikhs in other parts of India were able to openly manifest their religious status and were in employment, including in positions of authority. Those circumstances, as the Tribunal stated, demonstrated that the applicant had lived securely and without being subjected to any activity which might amount to persecution.  The applicant had given no reasons for leaving Bombay.  Thus, there was no evidence available to the Tribunal to indicate that internal flight was not a practicable option for the applicant.  The evidence was to the contrary.  In my opinion, there is nothing in the Tribunal's reasons which indicate that it applied the wrong test when considering internal flight.  Its reference to the findings in other cases involving Sikhs did not involve any error.  The Tribunal only referred to those cases after having considered the applicant's case and having come to a conclusion in that regard.  In referring to other cases, the Tribunal was doing no more than looking at cases involving similar claims to support its conclusion.  Had it relied on those cases in any substantial way, there may have been some basis for the applicant's complaint on this ground.

Whether Tribunal erred in its application of test of persecution in relation to the applicant's extortion claim

The applicant had based his claim of a well-founded fear of persecution upon the circumstance that he had been the subject of an extortion claim in his home region, during which the index finger on his left hand had been badly sliced and the second finger on the left hand had been cut.  He said he had suffered these physical injuries on the second occasion that an extortion claim had been made.  He said he had been subjected to an earlier extortion claim when a group of people had come to his home and demanded money.  He said they were armed with knives and guns and had their faces covered.  He said that on the first occasion, they did not harm him.  About a month or two later, they returned and inflicted the injuries which he had described.  He said he did not know who the people were as they had their faces covered.  He believed this happened to him because he was a Sikh and had been seen at Sikh meetings.  He said he believed that these people were people who hated Sikhs.

In Chan, McHugh J dealt with the meaning of "persecution" for the purposes of the Convention, stating at 429:

"The term "persecuted" is not defined by the Convention or the Protocol.  But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes "being persecuted".  The notion of persecution involves selective harassment.  It is not necessary, however, that the conduct complained of should be directed against a person as an individual...to constitute "persecution" the harm threatened need not be that of loss of life or liberty.  Other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol.  Measures "in disregard" of human dignity may, in appropriate cases, constitute persecution ... persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination."

The Tribunal referred to the basis of the applicant's claim that he had been persecuted at 17 as follows:

"The applicant in this case said he had been attacked in his home and subject to an extortion
demand.  [The Department of Foreign Affairs and Trade's] view...is that "there is strong evidence that extortion remains a widespread problem in Punjab and that it is not confined to any one particular section of society.   The South Asian Human Rights Documentation Centre (SAHRDC) a reputable human rights NGO [non-government organisation] used by a number of western embassies to provide both general and case assessments [of refugee claims] advise that they never considered extortion cases because the practice was rampant - 'a way of life in the Punjab'.  The SAHRDC preferred to consider cases which threatened human rights not simply an applicant's financial well-being".

Counsel for the applicant submitted that this approach to the claim for extortion was wrong in law.  She submitted that in approaching the matter in this way, the Tribunal forgot that there was violence associated with the extortion demand in the case of the applicant.  Alternatively, she submitted that the Tribunal's approach in considering that extortion involving violence, if commonplace, was not capable of amounting to persecution in the Convention sense, was wrong.

I do not consider that the Tribunal erred in law as alleged for the simple reason that the Tribunal did not, and did not purport to, reach any conclusion in relation to persecution.  Rather, it determined the issue of internal flight first.  Having found that issue against the applicant, it did not proceed to determine whether the applicant otherwise satisfied the Convention definition of refugee.  This is so notwithstanding that it had set out in great detail the material which related to the various issues in the claim before coming to its determination on internal flight.  I should state, however, that had the Tribunal gone on to determine whether the conduct to which the applicant had been subjected amounted to persecution and made its determination on the basis of the passage about which complaint is made, I am of the opinion that it would not have correctly applied the meaning of persecution as stated by McHugh J in Chan.  It would also have erred in failing to deal with the particular circumstances of the applicant's claim.

Even if there was such determination, it was a determination made only in respect of persecution in the Punjab.  Because of the finding I have made in respect of the internal flight issue, any error of law in respect of the issue of persecution would have made no difference to the outcome of this case and would not have caused me to allow the application.

Improper exercise of power
Finally, counsel for the applicant submitted that the Tribunal failed to take into account a relevant consideration, that being the applicant's subjective fear of persecution.  In my opinion, this ground must fail for the same reason as the previous ground - namely, that the Tribunal did not make any final determination on the issue.  Even if I am wrong in that regard, there was no error of law in the Tribunal's approach.

The Tribunal accepted that there had been a history of violence towards and by members of the Sikh community in the Punjab.  It stated (at 14) that "the authorities in the Punjab 'engaged in a pattern of gross violations of human rights and humanitarian laws'...".  However, it was of the view that this level of violence had died away.  It noted information from the Department of Foreign Affairs and Trade of January 1994 that according to its advice:

"unless an individual had some established history of terrorist associations or an established profile as a human rights advocate the chances of he/she facing convention related difficulties on return would be remote".

The Tribunal then noted that the applicant did not meet "the two qualifications contained in this opinion".

Counsel for the applicant submitted that in dealing with the matter in this way, the Tribunal had failed to take into account whether the applicant had a subjective fear of persecution based on reasonable grounds and that it imposed a new test upon the applicant of satisfying the Tribunal that the applicant had these "qualifications". 

In any event, I do not agree that the Tribunal's reasons should be read as counsel submits.  I have referred above to the principle that the question of well-founded fear of persecution is to be determined at the time the decision is made.  In my opinion, the Tribunal took into account the applicant's subjective fear of persecution.  There would have been no point in considering the history of "gross human rights violations in the Punjab" if it had not considered the applicant's subjective fear.  However, the law is clear that the Tribunal was entitled to have regard to information in its possession as to the current position within the applicant's country of nationality to determine whether, notwithstanding an applicant's subjective fears of persecution, there was, at the time of the Tribunal's determination, reasonable grounds for the fear of persecution:  see Chan.  In my opinion, in referring to the matters of which it was advised by DFAT, the Tribunal was doing no more than specifying the reasons why it did not consider that there was an objective basis for the applicant's claims, having regard to the current position in the Punjab.

Conclusion
It follows from what I have said that the application should be dismissed. 

I certify that this and the preceding 15 pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.

Associate:

Dated:    21 December 1995

APPEARANCES

Counsel for the Applicant:            Ms L. McCallum

Solicitors for the Applicant:          Messrs Ramrakha Jenkins

Counsel for the Respondent:            Ms R.M. Henderson

Solicitors for the Respondents:        Australian Government Solicitor

Dates of hearing:  24 October 1995