SZDCZ v Minister for Immigration
[2006] FMCA 405
•31 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCZ v MINISTER FOR IMMIGRATION | [2006] FMCA 405 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to consider whether the applicant would be persecuted – whether Tribunal erred in interpreting and applying s.91R of the Migration Act – whether Tribunal took irrelevant considerations into account – whether no evidence or unreasonableness. |
| Migration Act 1958, s.91R |
| S395 of 2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142 S1891 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1069 Minister for Immigration & Multicultural Affairs v Ibrahim [2001] HCA 55 Abebe v The Commonwealth (1999) 197 CLR 510 Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1713 SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857 VBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 212 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZDCZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG891 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Ms K. Morgan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG891 of 2004
| SZDCZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 March 2004 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a citizen of India who arrived in Australia in June 2003. He lodged an application for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing and gave oral evidence.
The applicant claimed to fear persecution because of his religion as a Sikh and because of his political affiliation to the Bharatiya Janata Party (the BJP). In his protection visa application he claimed to have joined the BJP while studying and to have done a lot of work for the party and also the Sikh community. He claimed that the youth wing of the BJP (to which he belonged) had developed an enmity with the youth wing of the Congress Party. He claimed that he was attacked and beaten at the election office of the youth wing of the BJP during 1998/99 elections by extremist Congress Party supporters and sustained serious injuries and that his formal complaint about this incident had not been acted upon by the police. According to the applicant, after the election the Congress Party (which succeeded at the election) had put him on its black list and tried to implicate him with the group involved in the killing of Mrs Indira Gandhi due to his Sikh religion. He claimed that he had received threats to his life from members of the Congress Party, that his family in India had been asked about his whereabouts by Congress Party youth wing members and that dire consequences have been threatened if his whereabouts were discovered. He claimed that he did not believe the authorities were willing or able to provide him with effective protection and that the extremist groups could find him anywhere in India.
At the Tribunal hearing the applicant elaborated on his claims. The applicant claimed to have joined the BJP in 1994 while a student and to have become more active after he completed his studies, particularly in 1997/1998. He claimed that he operated a transport business and assisted the BJP with transport, provision of food and anything else he was asked to do by Party officials and that he would inform people about the BJP in crowds attending political rallies or meetings.
The applicant claimed that he had been approached by youth members of the Congress Party who wanted him to join their party, but he did not do so as the Congress Party had been heavily involved in encouraging the anti-Sikh riots in India in 1984. He claimed that after he refused, the Congress Party members started to threaten him over the phone with property damage. He claimed that the telephone threats commenced during the 1998 election period and that after the election they continued to threaten him when he encountered them. He received phone calls sometimes two or three times a week, generally when organising rallies for elections and other activities. He claimed that he first received a death threat after the 1998 election when he refused to join the Congress Party.
He explained that during the 1998 election he was beaten up by members of the youth wing of the Congress Party in his office, that he was injured, received first aid and reported the matter to the local police station. The police wrote a report but did not take any action. The people who attacked him were never caught and he claimed that they kept threatening him over the phone. He did not experience any further physical attacks. He claimed that this was because each time the Congress Party youth wing members approached him he was in the company of others. He also claimed that on five or six occasions youth wing members had thrown stones at the windows of his house and at buses he operated in his transport business. In the course of the Tribunal hearing the applicant confirmed that the primary basis for his fear was that he would be pursued by the Congress Party, and particularly its youth wing members, should he return to India.
Tribunal decision
In its reasons for decision the Tribunal accepted that the applicant may have performed some activities on behalf of the BJP as claimed, such as provision of transport and food and that he may have been approached by the Congress Party youth wing which sought to recruit him. It accepted that he refused to change political allegiances and was subsequently harassed by youth wing members and that he may have been attacked by youth wing members in 1998. The Tribunal accepted that the police did not locate the applicant’s assailants after the attack and that this may have been because they were sympathetic to Congress Party members in an area in which the Congress Party held political power. The Tribunal had regard to the fact that in his written protection visa application the applicant had claimed that he was beaten severely and sustained serious injuries, but at the Tribunal hearing the applicant clarified that on the same day, after receiving medical treatment, he had been able to travel to a local police station to report the incident. While the Tribunal doubted whether the applicant sustained serious injuries as claimed as he was able to report to the local police station on the day of the attack, it found, for reasons given, that such doubts were not critical to the outcome of the case.
The Tribunal also accepted that on five or six occasions Congress Party youth wing members had thrown stones at the windows of the applicant’s house or at buses he operated in his transport business. It had regard to the fact that although the applicant claimed he had continued to receive threatening phone calls after the 1998 attack (generally during elections or when assisting at rallies) he had not been physically attacked again. He claimed this was because whenever approached he was in the company of local members of the BJP. However the Tribunal found that, given that the applicant publicly conducted a transport business in his home area, if he was of any continuing interest to the youth wing members he could have been readily targeted for further physical harm. It had regard to country information about the activities of Congress Party youth wing members and was satisfied that the Congress Party youth wing members could have acted towards the applicant in an arbitrary and violent manner if he had been of any real continuing interest to them. It also had regard to the fact that the applicant did not depart India until June 2003 and claimed that he remained politically active until his departure from India, including speaking with other persons in crowds attending meetings and rallies. In light of these matters it was not satisfied that the applicant had a prospectively well-founded fear of being subject to physical harm for reasons of his BJP activities should he return to India.
The Tribunal considered whether the applicant had a well-founded fear of being subject to other forms of harm constituting persecution, including psychological harm. It noted that although the applicant agreed he had a “low political profile” in his home area, he nonetheless continued to receive some threatening phone calls after the 1998 attack on him (although generally during elections or otherwise when he was assisting at rallies) and that he claimed his parents in India had advised him that Congress Party people had made inquiries of them and of some of his friends as to his whereabouts. It reiterated that it accepted that, as claimed, on five or six occasions between 1998 and the applicant’s June 2003 departure from India, Congress Party youth wing members may have thrown stones at the windows of his house or bus and that this may have invoked anxiety in him. However it was not satisfied that such harm, given its nature and frequency, was sufficiently serious for it to constitute persecution for the purposes of the Refugees Convention. Given the nature and frequency of such harm and the applicant’s apparent intention to maintain a “low political profile at best” on return to India the Tribunal was not satisfied that he had more than a remote chance of being subject to any harm amounting to persecution on return for reasons of his alleged past or future political activities.
The Tribunal continued:
“Finally, and with respect to my above finding the applicant intended to maintain a ‘low political profile at best’ should he return to India, I note the following. At hearing the applicant claimed his parents had ‘told’ him not to continue with his political activities. When asked whether he would continue with his political activities in India he confirmed his parents ‘would not want him to’. He claimed ‘not to know’ whether he would continue with his political activities or not on return to India, however, although he was not sure, he did not think he would ‘disobey [his] parents’. Where a person has sufficiently strong political convictions, the mere disregard of same, eg for fear of being subject to harm amounting to persecution for that applicant. That is I accept that in appropriate cases, the mere ‘fearful’ suppression by a person of their eg, political convictions may invoke protection obligations in Australia. However, I am not satisfied that the applicant [being a 34 year old male in a paternal culture, tertiary educated and operating his own business], would be apparently so prepared to resile from his alleged political convictions if by so doing he would be subjecting himself to persecution on return. Accordingly, I am satisfied the applicant either intends not to continue his political activities, or only, to maintain a low political profile, should he return to India.
The Tribunal also considered the applicant’s claims in relation to religion, but found that country information did not appear to indicate that merely because a person was Sikh he or she would have a well-founded fear of persecution for that reason in India. It also had regard to the fact that since the anti-Sikh riots in 1984 there appeared to be little if any violence against Sikhs in India, particularly in the location in which the applicant claimed to have lived. It noted that the applicant had agreed that this was the case and confirmed that his primary fear was that he would be pursued by Congress Party, particularly its youth wing members. It was satisfied that the applicant would not have a well-founded fear of persecution merely arising from his status as a Sikh in India. Nor was it satisfied that he would have a well-founded fear of persecution for reasons of his BJP activities and his Sikh religion on a cumulative basis.
The Tribunal then made findings in relation to relocation, albeit stating that it was not necessary to do so because of its earlier findings. It had regard to the applicant’s claim that the Congress Party was a national party and he would be located “wherever he settled” in India and that he did not believe he could safely relocate even to a state in which the BJP held political power. It referred to independent country information indicating that the BJP held power nationally and in various states in India and that the information did not indicate that the mere fact of being a low profile supporter, activist or member of the BJP in those states would give rise to a well-founded fear of persecution. It found that the chance of youth wing members in rival political parties acting in an arbitrary manner was more apparent in those states in which the political party they represented was in power. It was not satisfied, based on this information, that there was a real chance that the applicant would be targeted for persecution by Congress Party youth wing members in those states in which the BJP held power or where it was the dominant power in a coalition. Hence it was not satisfied that the applicant’s subjective fear of persecution by Congress Party youth wing members was objectively well founded or that the applicant had a prospectively well-founded fear of being subject to persecution by Congress Party youth wing members should he safely relocate to a state in which the BJP was the dominant political power.
Hence the Tribunal considered whether it was reasonable to expect the applicant to safely relocate within India. It had regard to the evidence that the applicant had received tertiary education in India and that he owned and operated a transport business. It found that he apparently had the capacity to operate a successful business and that there was no reason to assume he could not utilise these skills to secure commensurate work in an alternative area within India. It also had regard to his claim to speak at least three different languages, the fact that he had access to the financial resources to travel to Australia and the capacity to reside in Australia in a culture significantly different from his own home area and also different from other areas within India to which he might safely relocate. It found nothing in his claims to lead it to conclude that he could not reasonably be expected to relocate within India and avoid any well-founded fear for a Convention reason. It noted that there was no evidence to suggest concerns with respect to infirmity, health services, education or employment and found that the country information did not satisfy it that relocation would be unreasonable for the applicant. Accordingly the Tribunal was satisfied that the applicant could reasonably be expected to relocate within India and by so doing avoid any well-founded fear of persecution for a Convention reason.
The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason in India as a whole and that he was not a person to whom Australia had protection obligations.
This application
The applicant sought review by application filed in this Court. He relies on a further amended application filed in Court containing four grounds of review.
Whether the Tribunal erred in addressing the future
The first ground of review is that the Tribunal made a jurisdictional error in that it failed to consider whether the applicant would be persecuted if he engaged in politics if he returned to India. The particulars of this ground are as follows:
The applicant has told the Tribunal that he is not sure whether he would be involving himself in politics as he has done in the past. The Tribunal dealt with the applicant’s claims on the basis that he will not involve himself in politics. However since there was equally the possibility that he will involve himself in politics the Tribunal should have considered whether he will be persecuted if he does so.
In oral submissions it was clarified that there were two aspects to this ground. The first was a contention that the Tribunal failed to consider whether the applicant would be persecuted if he engaged in politics and the other was that there was said to be a breach of the principle enunciated in S395 of 2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 in the sense that it was submitted that the Tribunal impliedly found that the applicant could avoid harm by not engaging in politics.
The applicant relied on the following exchange in the Tribunal hearing:
TRIBUNAL: So if you went back to India would you continue – would you continue in your political activities?”
APPLICANT: I don’t know. If I go back my parents might not allow me and if they say no, I don’t know, I don’t think I’ll dissent with them or I won’t be dissent to them but I’m not sure what I’ll do and if Australia – but I know I’m not safe there because Australia government give me a chance I can do something and I can at least study and go back and do something when the things are a bit better there.
TRIBUNAL: Okay.
It was contended that in this exchange the applicant did not state one way or the other whether he would intend or would not intend to get involved in politics, so that it was incumbent upon the Tribunal to consider both situations.
However no jurisdictional error is established on either basis contended for by the applicant. First, reading the Tribunal reasons for decision fairly and as a whole it is clear that it did not simply deal with the applicant’s claims on the basis that he would not involve himself in politics. It outlined the claims of physical harm he had experienced and noted that he did not claim to have been physically harmed since the elections of 1998 even though he claimed he remained politically active until his departure from India in 2003. On this basis the Tribunal was not satisfied that the applicant had a “prospectively” well-founded fear of being subject to physical harm for reasons of his BJP activities should he return to India.
It also considered the possibility that harm other than physical harm sufficiently serious to constitute persecution may be relevant. In that context it had regard to the applicant’s concession that he had a “low political profile” in his home area (as well as the fact that he continued to receive some threatening phone calls after the 1998 attack on him and that there had been five or six occasions of stone throwing). It was not satisfied that such harm was sufficiently serious to constitute persecution for the purposes of the Refugees Convention.
The Tribunal then went on to address specifically the question of what was likely to happen to the applicant on account of his political activities if he returned to India. It found that given the nature and frequency of what it described as “the immediately above-mentioned harm” and the applicant’s “apparent intention to maintain a low political profile at best” on return to India, it was not satisfied that he had more than a remote chance of being subject to any harm amounting to persecution on return to India for reason of his alleged past or his future political activities. In making this finding the Tribunal took into account not only the applicant’s claims of past harm and as to his past level of involvement in politics, but also the likelihood of future political involvement. It had regard to a number of factors in concluding that it was satisfied that the applicant “either intends not to continue his political activities or only to maintain a low political profile, should he return to India”. It referred to his claims about what his parents had told him and would want him to do, that he claimed that he did not know whether he would continue with his political activities and that although he was not sure he did not think that he would disobey his parents. In light of this evidence it considered the principle that where a person had sufficiently strong political convictions the mere disregard of same for fear of being subject to harm amounting to persecution may of itself amount to persecution for that applicant. It found that this was not the case for this applicant. It was not satisfied that the applicant, as a 34 year old male in a paternal culture, who was tertiary educated and operated his own business, would be “apparently so prepared to resile from” his alleged political convictions if by so doing he would be subjecting himself to persecution on return.
The Tribunal did not simply deal with the applicant’s claims on the basis that he would not involve himself in politics on his return as appears to be contended for the applicant, but rather found that he either intended not to continue political activities or to maintain a low political profile. It addressed both possibilities. In so doing the Tribunal had regard to its finding that the harm it accepted that the applicant had suffered in the past (while maintaining a low political profile) was not serious harm amounting to persecution.
Further, contrary to the applicant’s contention the Tribunal did not suggest that the adverse consequences of persecution could be avoided by the applicant either not continuing any political activities or by maintaining a low profile (cf S395 of 2002 per Gummow and Hayne JJ at [80] and McHugh and Kirby JJ at [40]). Rather it made a finding of fact in relation to this applicant, that he would either not continue political activities or that if he did he would maintain a low political profile. The Tribunal did not divert from inquiry about whether the fears which the applicant had were well-founded and did not ask, as the Tribunal had done in S395 of 2002, whether he could avoid persecution. Rather it asked what may happen to him if he returned to India, consistent with what was stated in Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142 at [168] per Hayne and Heydon JJ and also see Gleeson CJ at [11]). In other words, based on the material before it, including the applicant’s evidence about himself, his past political practices and what he would do on return to India, the Tribunal concluded that were the applicant to engage in politics in the way he chose to do (that is either not at all or by maintaining a low political profile) there was not a real risk of his being subject to harm amounting to persecution and that hence he did not have a well-founded fear of persecution. No jurisdictional error is established on either basis contended for in ground 1.
Serious harm issue
Ground two in the further amended application is that the Tribunal made a jurisdictional error in interpreting and applying s.91R of the Migration Act 1958 (C’th) (the Act) when it categorised the harm suffered by the applicant after 1998 as not “serious harm”.
The particulars are as follows:
The Tribunal’s mistake if four-fold. It did not consider whether the conduct the applicant endured would constitute serious harassment amounting to persecution. Secondly the Tribunal did not consider whether the threat to life would constitute serious mental harm. Thirdly it did not look at the harm the applicant was subjected to cumulatively in order to decide it was persecution. Fourthly it failed to consider that well-founded fear would include possibility well below the 50%.
In support of this contention it was pointed out that in addition to being beaten up in 1998, the applicant had experienced the five or six occasions on which youth wing members had thrown stones at the windows of his home or at one of the buses he operated in his transport business and that he had continued to receive some threatening phone calls after the 1998 attacks on him. The transcript of the Tribunal hearing revealed that he claimed that he would receive threatening phone calls sometimes two or three times a week particularly when organising rallies for the elections and during the election times and that sometimes ‘they’ would threaten to kill him. The applicant had also claimed that the Congress Party had put him on their blacklist, tried to implicate him with the group involved in the killing of Mrs Indira Gandhi and that since his departure he had been told by members of his family in India that his whereabouts were being sought by the Congress Party youth wing and that he had been threatened with dire consequences if his whereabouts were discovered.
It was contended that the Tribunal failed to consider whether, in light of all the harm he claimed to have suffered, the applicant was living in a condition of insecurity resulting from politically-based harassment constituting an affront to human dignity which he could not be expected to tolerate and return to and that the Tribunal failed to appreciate what aspects of human dignity were protected by the Refugees Convention (which was said to include the right to live in a secure home environment where houses and vehicles are not stoned and people are not threatened). It was submitted that it was the duty of the Tribunal to decide whether such harassment transgressed the human rights standards reflected in the Refugees Convention and that in the absence of adequate discussion of this issue by the Tribunal, it did not “appreciate” the law correctly. (see S1891 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1069 at [31] and [34] per Smith FM).
In oral submissions Mr Silva contended for the applicant that the Tribunal should have sought further details of the nature of the threats the applicant had received and should then have assessed the nature of the threat and whether all of the accidents the applicant had experienced would constitute serious harassment such that the applicant’s human rights were violated so that the applicant would take flight. (See Minister for Immigration & Multicultural Affairs v Ibrahim [2001] HCA 55 at [55] per McHugh J). It was submitted that the Tribunal erred in failing to evaluate the extent of the threat to the applicant’s life and to inquire, as required under s.91R of the Act, whether that would constitute serious harm as a threat to the person’s life or liberty.
No error is established in the manner contended. First, it was suggested that the Tribunal was under an obligation to make further inquiries about the claimed threats to the applicant. However the transcript of the Tribunal hearing indicates that the Tribunal questioned the applicant on a number of occasions about details of his claims such as how often he was threatened, when the threats began, how often he would receive phone calls, whether this was mainly during elections and rallies, what happened outside those times, when he received death threats and also sought details of his claim that stones were thrown at the windows of his home and buses.
It is notable that when the Tribunal member asked how often the applicant would receive threatening phone calls when there were no elections and rallies, the applicant replied:
“Not too often because I was also looking after my business, I have to earn my money, I have to live a life so I was busy with my business and BJP and that life is separate and this was my own life, looking after my business”.
The Tribunal persisted, asking when the applicant received death threats, about what time. The applicant’s response was:
APPLICANT: Well those youth wing people are like that they are like hooligan type of people, whenever they want, whenever they like they threaten people.
TRIBUNAL: Okay but when, when did you first receive a death threat just approximately?
APPLICANT: When I was – during the election when I was … 1998.
TRIBUNAL: So you first received a death threat during the 1998 elections is that correct?
APPLICANT: After the election because the Congress – Congress won the elections but apart from that, still in spite of winning the elections they’re still forcing me to join them because they said I was – because of the fact I was very active in my party. I was a hard working person, that is why whenever I refuse that’s the time they threaten to kill me.
In the context of asking why he had come to Australia in June 2003, the Tribunal asked the applicant to confirm that he had not been subject to harm, except for the property damage, since 1998. The applicant claimed that he continued to receive threats after 1998. The Tribunal member went to some pains to clarify the extent of these claimed threats and how long the threats went on. The applicant stated that he kept receiving threats until 2001. He explained that these threats were made over the phone and that he had not been physically attacked (which he attributed to the fact that when approached by members of the youth wing he was always in the company of local members of the BJP).
It is clear that that applicant was given the opportunity to advance his claims in relation to threats. As Gummow and Hayne JJ stated in Abebe v The Commonwealth (1999) 197 CLR 510 at [187]:
“It is for the applicant to advance whatever evidence or argument she wishes to advance whatever evidence or argument [he] wishes to advance in support of [his] contentions that [he] has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
This is not a case where the Tribunal undertook to make inquiries or the circumstances were such that it could be said that the Tribunal was under a duty to make its own inquiries. The applicant was given the opportunity to put all that he wished to put before the Tribunal (see Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1713 at [95] per Hely J). No jurisdictional error is established on this basis.
The essence of this ground is a contention that the Tribunal erred in the manner considered by Wilcox J in SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857. In that case the applicant had claimed that there had been a threat to her life (among other things). The Tribunal had concluded that looked at individually or in totality the mistreatment suffered by the applicant in the past was not any more than low level harassment and was not of sufficient severity to amount to serious harm. Wilcox J referred with approval to what was stated by Crennan J in VBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 212 at [19]:
Whilst it is clear from the dictionary definitions relied on by the applicant, the common meaning of the word “threat” can include a declaration of intention or determination to cause harm or take some hostile action, common sense dictates that there is a distinction to be made between a real or genuine threat to cause harm or a hollow threat to do so. There is also a distinction to be made between a threat to kill intended to be acted upon, and a threat to kill intended to intimidate, but not to be acted upon.
Her Honour added at [28]:
Given the construction of s.91R(2)(a) as a reference to “threat” in the sense of “danger” or “risk”, it follows that when a Tribunal finds such threats have been made, that does not foreclose further inquiry to determine whether such threats amount to “serious harm” within the meaning of the subsection. Whether such threats are sufficiently serious to amount to persecution within the meaning of Art 1A(2) of the Convention and serious harm within the meaning of s.91R is a question of fact and degree for the Tribunal.
Wilcox J stated at [31] in SZAYT, that on proof that someone had made a threat about an intention to kill the protection visa applicant, the Tribunal must evaluate the threat and determine whether it amounted to serious harm within the meaning of s.91R(2)(a) of the Act. His Honour suggested:
That evaluation needs to take into account all the surrounding circumstances including: the nature of the relationship between the relevant people; the occasion and manner of making the “threat”; any immediate effect of the “threat” upon the threatened person; the opportunity (if any) for the threatener to carry out the threat; and so on. Subsequent events may also be relevant, bearing in mind that the ultimate question for the Tribunal is not what has already happened to the protection visa claimant, but what might happen to that person in the future, if he or she returns to the country of nationality.
In this case the Tribunal did not simply dismiss the past harm claimed by the applicant as low-level harassment or not of sufficient severity. It considered “the seriousness, and likely effect of the threat to kill the applicant” (SZAYT at [36]). It accepted first that the applicant was attacked in 1998. Indeed, while expressing doubt as to the extent of his injuries, it proceeded on the basis that both the attack and the consequences were as claimed. It considered the nature and frequency of the claimed past harm in assessing whether any fear the applicant held was prospectively well-founded. In addition to considering the actual physical harm which the applicant claimed to have experienced in 1998, and the absence of any subsequent physical harm (other than the fact that on five or six occasions youth wing members had thrown stones at the windows of his house or at his buses) it had regard to the threats to his life that the applicant claimed to have experienced insofar as it was able to do so on the evidence put before it by the applicant. It considered the nature and frequency of such threats and the occasion and manner of the threats, including the fact that the applicant told the Tribunal that threats generally occurred during elections or otherwise in the course of his assisting at rallies. It had regard to the effect of the threats (in terms of anxiety). Importantly it also took into account the fact that the applicant had not been physically attacked after 1998 despite the fact that he did not depart India until June 2003 and remained politically active until his departure from India, including transporting people to attend rallies and discussing the policies of the BJP in speaking with others in crowds attending BJP meetings and rallies. In that context the Tribunal was satisfied that, as the applicant publicly conducted a transport business in his home area, if he was of any continuing interest to the Congress Party youth wing members he could have been readily targeted for further physical harm. In other words it addressed the opportunity for the threatener to carry out the threat. It also had regard to country information indicating that Congress Party youth wing members had been reported to act on occasion in an arbitrary and violent manner and was satisfied they could have so done towards the applicant if he had been of any real continuing interest to them.
As McHugh J stated in Ibrahim at [55] the infliction of harm for a Convention reason does not always involve persecution:
Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.
Furthermore, in addition to considering the past physical harm and the threats to the applicant, in the context of determining whether the applicant had a prospectively well-founded fear of being subject to physical harm, the Tribunal considered the possibility that he had a well-founded fear of some other harm, such as psychological harm, sufficiently serious to constitute persecution for the purposes of the Refugees Convention. In that context it considered cumulatively the claimed harassment and threats to the applicant’s life, in particular that the applicant continued to receive some threatening phone calls after the 1998 attack on him, (although generally during elections or in the course of assisting with rallies) and his claims that on five or six occasions youth wing members had thrown stones at windows of his house or his buses between 1998 and 2003. It had regard to the fact this may have invoked anxiety in the applicant. It also took into account his claims that Congress Party people had made inquiries of his family and friends about his whereabouts after his departure. However it was not satisfied that the harm complained of, given its nature and frequency, was sufficiently serious to be defined as persecution for the purposes of the Refugees Convention. In reaching such conclusion the Tribunal had regard to the nature and frequency of the past harm complained of while the applicant had maintained a low political profile as part of determining whether he had a well-founded fear in circumstances where it was satisfied that he intended to maintain no more than a low political profile if he returned to India.
This is not a case in which the Tribunal simply outlined claims and expressed a bare conclusion that the claimed conduct was not of sufficient severity to constitute persecution or constituted no more than low-level harassment. Rather the Tribunal engaged in the necessary evaluation of the conduct complained of, including the threat to the applicant’s life, in all the surrounding circumstances including subsequent events insofar as possible on the material before it. Given that the Tribunal had regard to such circumstances, its conclusion as to whether the harm complained of, including the threat to the applicant’s life, was sufficiently serious to amount to serious harm within the meaning of s.91R of the Act was “a question of fact and degree for the Tribunal” (Crennan J in VBAS at [28] and Wilcox J in SZAYT at [32]).
Moreover, contrary to the contentions in the applicant’s written submissions, the Tribunal considered not only the individual acts of past harm complained of, but also all the harm suffered by the applicant, in determining whether it was sufficiently serious to be defined as persecution for the purposes of the Refugees Convention. This is not a case in which the Tribunal applied a “simplistic test of sufficient severity” in deciding whether the applicant had suffered persecution as was considered by Smith FM in S1891 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1069. In that case the Tribunal accepted claims an applicant made about what she had suffered in the past but found, briefly, that that harassment was not of sufficient severity to constitute persecution. In contrast, in this case the Tribunal discussed and assessed the claims made by the applicant as to what had occurred in the past and evaluated such claims in determining whether or not the conduct complained of amounted to persecution or was such as to satisfy it that the applicant had a prospectively well-founded of harm.
Further, contrary to the applicant’s contentions, there is nothing in the decision to suggest that the Tribunal failed to consider that a well-founded fear would extend to a possibility of harm well below 50%. It correctly stated the law in this respect. It was not satisfied that the applicant had more than a remote chance of being subject to any harm amounting to persecution on return to India for reasons of his alleged past or future political activities. No jurisdictional error is established on the basis contended for in ground two.
Whether Tribunal took irrelevant considerations into account
The third ground in the further amended application is that the Tribunal made a jurisdictional error as it took irrelevant considerations into account in making a critical finding which affected the ultimate decision that the applicant was not a refugee. The particulars of this ground are as follows:
At CB 71.60 the Tribunal found that:
That is I accept that in appropriate cases, the mere “fearful” suppression by a person of their eg political convictions may invoke protection obligations in Australia. However, I am not satisfied that the applicant (being a 34 year old male in a paternal culture, tertiary educated and operating his own business), would be apparently so prepared to resile from his alleged political convictions if by so doing he would be subjecting himself to persecution on return.
In the above finding the Tribunal took irrelevant matters such as age, paternal culture, tertiary education and ownership of a business.
It was acknowledged that the factors the Tribunal was bound to take into account were determined by the construction of the Migration Act 1958 (Cth) (the Act) and, if not stated, such factors were to be determined by implication from the subject matter, scope and purpose of the Act (see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 – 40 per Mason J). It was contended, however, that there was no basis for suggesting that any of the factors referred to would have anything to do with the applicant’s commitment not to resile from his political convictions because that would result in harm and hence that the Tribunal took into account irrelevant considerations in the sense considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].
It has not been established that the Tribunal erred in taking into account irrelevant considerations in the sense considered in Yusuf. Rather, having found that the applicant agreed that he had a low political profile in his home area in India, the Tribunal considered the evidence before it, including the applicant’s oral evidence in relation to whether he would continue his political activities in India and the attitude of his parents, in considering whether he would do more than maintain a low political profile on return to India. In that context it addressed the issue of whether he had sufficiently strong political convictions so that the mere disregard of them for fear of being subject to harm would amount to persecution. In other words it considered the likelihood that he held strong convictions that he would suppress out of fear of being subject to harm. However, having regard to the evidence before it, which included evidence as to the personal situation of the applicant, his age, education and business experience as well as his parent’s views and his own wish to pursue his business interests, the Tribunal in effect rejected the notion that a person with the characteristics of the applicant would indicate that he was not sure, did not know and may abide by his parents’ wishes that he give up his political activities, if such convictions were sufficiently strongly held. This is clear from its finding that it was not satisfied that he would be ‘so prepared’ to resile from his alleged political convictions if by so doing he would be subjecting himself to persecution on return.
It was open to the Tribunal to have regard to the evidence of the applicant and his personal circumstances in considering whether or not he was someone who had strongly held political convictions which he would give up only because of fear of harm and in finding that the applicant either did not intend to continue his political activities or that if he did he would maintain a low political profile. No jurisdictional error is established on this basis.
Whether no evidence or unreasonableness
Ground four of the further amended application was added at the time of the hearing. It is that the Tribunal made a jurisdictional error as it made a finding without evidence or because it was unreasonable to make such a finding. The particulars are that the Tribunal found that the applicant intended to maintain a ‘low profile’ at best should he return to India.
Mr Silva submitted that based on the limited discussion of such matters in the Tribunal hearing this finding was made without evidence or was unreasonable. It was contended that the only discussion about whether the applicant would continue with his political activities was as follows:
TRIBUNAL: So if you went back to India would you continue – would you continue in your political activities?
APPLICANT: I don’t know. If I go back my parents might not allow me and if they say no, I don’t know, I don’t think I’ll dissent with them or I won’t be dissent to them but I’m not sure what I’ll do and if Australia – but I know I’m not safe there because Australia government give me a chance I can do something and I can at least study and go back and do something when the things are a bit better there.
It was suggested that while the Tribunal accurately summarised what occurred in its description of the evidence given in the hearing, when it came to the findings and reasons part of its decision it recorded the evidence in a sequence which was inaccurate and which affected the meaning of what had been said by the applicant. The relevant part of the findings and reasons in this respect is as follows:
He claimed “not to know” whether he would continue with his political activities or not on return to India, however, although he was not sure, he did not think he would “disobey [his] parents”.
In other words it was submitted that the emphasis in the Tribunal hearing was that the applicant said he was ‘not sure’, whereas the Tribunal recorded that although he was not sure he did not think he would disobey his parents. This was said to be a difference in the manner in which the evidence was recorded. In these circumstances it was contended that there was no basis for the Tribunal to make a finding that the applicant intended not to get involved in political activities when he went back to India because there was no evidence to support such a finding.
However the extract set out above from the Tribunal hearing was not the only occasion on which the Tribunal member discussed with the applicant whether he would continue with his political activities or the only part of the evidence relevant to a consideration of that issue. Earlier in the hearing, when asked about the fact that he had not been subjected to harm since 1998 except for property damage and why he had come to Australia in June 2003, the applicant referred to things ‘cooling down’ after the Congress Party came into power. He stated that he wanted to expand his business and his parents were saying that he should leave politics and concentrate on his business. When asked when his parents told him to stop his political activities and concentrate on his business, the applicant indicated that they had never liked it, they did not want their children to get involved in such dirty politics but rather to do something good if involved in politics. When he continued to receive threats after 1998 his parents told him to stop his political activities. At that time he started to focus more on his business. He reiterated that his parents told him that politics was a dirty game and not to get involved. He also told the Tribunal that he was looking after his business at that time, that he also continued to take part in politics, that time went by and he kept receiving threats until 2001. He stressed his involvement in his business as a separate activity: “this was my own life, looking after my business.” Further, the applicant did not dispute the Tribunal’s suggestion to him that it appeared he had had a ‘low political profile’ in India.
In light of all the evidence before it, it cannot be said that either there was no evidence for the Tribunal finding or that it was unreasonable for it to find that the applicant intended either not to continue his political activities or to maintain a low profile at best should he return to India. Rather this finding was based on the applicant’s his past evidence about his actual involvement in politics, his concession that he had had a low political profile in India, his evidence about what his parents told him and wanted and his past and future wishes to pursue his business interests, as well as the fact that he said that he did not know whether he would continue with his political activities.
The fact that the Tribunal summarised his comments in a sequence which does not reflect precisely the order in which the comments were given is not, taken in the context of the decision as whole and all that occurred in the Tribunal hearing, such as to indicate that the Tribunal finding was unreasonable or based on no evidence in a manner constituting jurisdictional error. There was evidence before the Tribunal on which it could make the finding that it was satisfied that the applicant either intended not to continue his political activities or only to maintain his low political profile should he return to India. No jurisdictional error has been established by the applicant. Hence the application should be dismissed.
Relocation
Each of the parties addressed in submissions the issue of relocation on the basis that if there was a jurisdictional error it would be necessary to consider whether the Tribunal had made its decision on an alternative basis of relocation which was sufficient to uphold the validity of the decision. Mr Silva contended that the Tribunal had not made its decision based on relocation but only mentioned it as a side issue. However he submitted that if it was considered that there were findings on relocation sufficient to uphold the validity of the decision, then there was an issue as to whether there was a jurisdictional error in such findings.
In addressing relocation the Tribunal did state that it was not necessary to provide findings and reasons given its findings on the other matters in issue. Nonetheless the Tribunal then stated that it intended to provide its findings and reasons with respect to relocation. It did so. The Tribunal consideration of relocation proceeded on the basis that the applicant may have a well-founded fear of persecution at his place of residence in his home country (although it was said not to be necessary to determine this conclusively). Relocation was not dealt with simply as a ‘side issue’. If no error is apparent in the Tribunal’s consideration of relocation it would provide an independent basis for the decision.
As clarified in oral submissions, it emerged that Mr Silva’s contention was that the Tribunal had failed to follow the principles discussed by the Full Court of the Federal Court in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 in its consideration of relocation, in that it had failed to consider whether in all the circumstances it was reasonable for the applicant to relocate. It was contended that the Tribunal had failed to take into account the fact that the applicant had a history of violence being perpetrated against him. It was suggested that the fact that there was country information suggesting that violence was more current in states where the political parties the youth wings represented were in power did not mean that the Tribunal could rule out the possibility that the youth wings also perpetrated violence in states where the other party was in power.
This contention does not establish jurisdictional error in the manner in which the Tribunal dealt with relocation. The Tribunal properly set out the law. In considering the case before it, it proceeded on the basis that the applicant may have a well-founded fear of persecution at his place of residence. In other words it proceeded on the basis that the applicant had experienced the harm complained of in his home state. It addressed the applicant’s claims in relation to his situation and the possibility of relocation and had regard to the country information which had been put to the applicant in the hearing (in particular as to the activities of youth wing members and the fact that the country information did not indicate the mere fact of being a low profile supporter, activist and/or member of the BJP in those States where the BJP held power would give rise to a well-founded fear of persecution for such persons). It is notable that the applicant did not dispute that he had been such a low profile participant.
Further, the Tribunal did not ‘rule out the possibility’ of Congress Party youth wing violence in BJP dominated States as submitted. It proceeded on the basis of accepting the applicant’s claims of past violence against him in an area in which the Congress Party was in power. It had independent country information before it not only about the BJP holding power nationally and in various States, but also indicating that the chance of youth wing members of rival parties acting in an arbitrary manner was more apparent in States in which the political party they represented was in power. It considered the position where the BJP was in a coalition and found that the BJP was still the dominant political power in such States. It had regard to the fact that the country information did not indicate that the ‘mere fact’ of being a low profile supporter, activist and/or member of the BJP (in a context in which the applicant had agreed he had a low political profile) would give rise to a well-founded fear of persecution in those States where the BJP held power. On this basis it was not satisfied that there was a real chance the applicant would be targeted for persecution by Congress Party Youth Wing members in those States where the BJP held power and it found on the basis of this information that the applicant’s subjective fear of Congress Party youth wing members was not objectively well founded.
In this way the Tribunal addressed, but rejected, the applicant’s claims to fear that he may be subject to persecution in a State in which the BJP was in power or in a coalition. Having found that it was not satisfied the applicant had a prospectively well-founded fear of being subject to persecution by Congress Party youth wing members should he safely relocate to a state in which the BJP was the dominant political power, the Tribunal considered whether it was reasonable to expect the applicant to safely relocate within India. It considered the information before it in relation to the circumstances of the applicant and no error is established in the manner in which it did so.
The Tribunal findings on relocation provide an independent basis for the decision which has not been shown to be affected by jurisdictional error. As indicated above, the application should be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 31 March 2006.
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