SZHUD v Minister for Immigration

[2007] FMCA 202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHUD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 202

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X and 476

A v Minister for Immigration Affairs (1999) 53 ALD 545
Horvath v The Secretary of State for the Home Department [2000] 3 WLR 379
Htun v Minister for Immigration (2001) 194 ALR 244
Minister for Immigration v Guo & Anor (1997) 144 ALR 567
Minister for Immigration v Praphapan (1998) 156 ALR 672
Minister for Immigration v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration v Tas [2000] FCA 1657
Minister for Immigration v Thiyagarajah (1997) 151 ALR 685
NAGU & Anor of 2002 v Minister for Immigration [2005] HCA 6
Paramanayagam v Minister for Immigration [2000] FCA 1744
Sarabjit Singh v Minister for Immigration [2002] FCA 37
Sowrimuthu v Minister for Immigration [2001] FCA 300
Svecs v Minister for Immigration [1999] FCA 1507
SZDWR v Minister for Immigration [2006] FCAFC 36

Applicant: SZHUD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3621 of 2005

Judgment of: Lloyd-Jones FM

Hearing date: 2 November 2006

Delivered at: Sydney

Delivered on: 2 March 2007

REPRESENTATION

Counsel for the Applicant: Mr A B Slattery

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Mr J Wright of Sparke Helmore

ORDERS

1. The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2. The application filed on 9 December 2005 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3621 of 2005

SZHUD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 December 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 27 October 2005 and handed down on 17 November 2005, affirming a decision of the delegate of the first respondent made on 13 May 1997, refusing to grant the applicant a protection (class XA) visa. The applicant was advised of the decision on 14 June 2005. The applicant seeks relief against the decision of the Tribunal.

2. A Court Book (“CB”) prepared by the respondent’s solicitors was filed in these proceedings on 31 January 2006.  I have marked it as Exhibit “A” and it has been read into evidence.

3. The applicant filed an affidavit affirmed on 7 December 2005.(“applicant’s affidavit”)  Annexed to the affidavit is a copy of the Tribunal decision, reference N05/51627.

4. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHUD”.

Background

1. I rely on the written submissions of Mr Lloyd, which sets out the relevant background material in this matter and I adopt paragraphs 2 to 15 of  those submissions:

   2. The applicant is a citizen of Bangladesh.  He arrived in Australian on 3 March 1997, on an Indian passport issued in the name of [SZHUD].

   3. On 2 April 1997, the applicant lodged an application for a protection visa.  At this point the applicant claimed to fear the “Muslim community” who it was said had acted against him with the cooperation of the law enforcement agencies.

   4.On 13 May 1997, a delegate of the Minister refused his application.

   5. On 18 June 1997, the applicant applied to the Tribunal for review of the delegate’s decision.

   6.On 9 September 1997, the Tribunal handed down its decision, finding that it did not have jurisdiction to view the delegate's decision because the application review had been made out of time.

   7. On 30 October 2003, he was detained when found working illegally.

   8. On 18 July 2004, he was assessed at the Villawood Detention Centre by Ms Paula Farrugia, an Educational and Developmental Psychologist.  Ms Farrugia subsequently prepared a report, dated 24 July 2004, in which she diagnosed the applicant as suffering from “a major depressive illness sub threshold post traumatic stress disorder symptomology.”

   9. In June 2005, the Department determined that it had not properly notified the applicant of the delegate's original decision.

   10.On 2 June 2005, it released him from detention and on 14 June 2005 it renotified him of the delegate's decision.

   11.On 1 July 2005, the applicant applied to the Tribunal for review of the delegate's decision.

   12.On 1 September 2005, the Tribunal invited the applicant to attend a hearing on 13 October 2005 and to send to the Tribunal any documents or written agreements he wanted it to consider.  The applicant accepted the invitation, and on 19 September 2005 he supplied the Tribunal with a document setting out the background to his application for a protection visa and attached a large volume of supporting material, including the reported prepared by Ms Farrugia and extracts from international media and other sources about the political situation in Bangladesh.

   13. The applicant gave oral evidence at the hearing before the Tribunal, and following the hearing he provided further written material to the Tribunal, on its offering him the opportunity to do so.

   14. On 17 November 2005, the Tribunal handed down its decision affirming the decision of the Minister's delegate.  The Tribunal was not satisfied that the applicant had demonstrated a well-founded fear that he would be subjected to circumstances amounting to persecution in Bangladesh by either Muslims, the authorities or the government, for reasons of religion or any other Convention reason.  While it accepted that Hindus had been discriminated against in Bangladesh, the Tribunal was not satisfied that the discrimination was of such nature or extent as to constitute persecution.  Nor did the Tribunal accept that the information provided by the applicant supported his claim that Hindus in Bangladesh were commonly at risk of suffering persecution by the Muslim majority or denied protection by the State, solely because they were Hindus.

   15.In relation to the applicant's individual circumstances, the Tribunal found that his fear of harm in the future related “mostly to the harm he suffered almost ten years ago when he was kidnapped, assaulted, and molested by a group of Muslim men.”  While the applicant claimed he was targeted because he was a Hindu, the Tribunal understood his evidence at the hearing as indicating that the primary motivation for the attack was to extort money and property from the applicant's mother.  The Tribunal continued:

   The Tribunal accepts the applicant's claims that he was tortured by kidnappers and he suffers depression and other psychological difficulties as a result of attack.  It also accepts his claim that he is extremely afraid to return to Bangladesh because he anticipates similar harm in the future.  However, although the Tribunal sympathises with the applicant's predicament, it finds that his fear is not well-founded.  The Tribunal has formed the view that the attacks he suffered in 1996 was confined to a particular place and time.  It is satisfied that the circumstances which led to the attack in 1996 no longer exist and will not be replicated in the foreseeable future.  The Tribunal is also satisfied that it is neither necessary nor desirable for the applicant to return to the place where he lived previously.  His evidence indicates that he severed all ties with that community in 1996 and he had not expressed an interest in returning there.  The Tribunal is satisfied that the applicant can relocate within Bangladesh (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437). It is satisfied that he has the skills, knowledge and ability to relocate and it is reasonable for him to do so.

Application for review of the Tribunal’s decision

1. On 9 December, 2005, the applicant filed an application review under s.39B of the Judiciary Act.  At the hearing Mr Slattery sought leave to file in Court a further amended application.  As no objection was raised leave was granted.  The further amended application contains the following ground:

   1.Constructive failure of jurisdiction:  the Tribunal did not decide the real question in the case, as it had no rational basis upon which to answer the question of the effectiveness of protection and in so doing failed to properly assess whether there was a real chance of persecution in the future.

   Particulars:

   (a)   The applicant a Hindu fears persecution from non-state agents, Muslims.

   (b) The applicant fears that he will not be protected by the State from the non-state agents if he returns to Bangladesh.

   (c)   The Tribunal found that the applicant's fear was not well-founded because he as a Hindu he has access to the same level of protection as other citizens and will not be denied access to protection or differential treatment because he is a Hindu.

   (d)   The Tribunal failed to decide whether Bangladesh has effective judicial law enforcement agencies.

   (e)   The Tribunal failed to decide whether Bangladesh authorities were reasonably willing and able to provide state protection.

   (f)    The Tribunal failed to decide whether the protection afforded was sufficient to remove a real chance of protection.

Submissions and reasons

1. Mr Slattery indicated to the Court that it is the applicant's case that the only basis the application has on which to succeed in his claim is that as a Hindu he would be subject to persecution per se.   However, the Tribunal found that that basis fails because the applicant would be subject to the same level of protection as other Bangladeshi citizens and would receive non-differential treatment of the government and authorities of Bangladesh.  Mr Slattery contends that there are errors in the way that the Tribunal dealt with the issue of persecution of Hindus per se in Bangladesh. 

2. Mr Slattery contends that the three errors or reasons all show a lack of consideration with regard to the elements that the Tribunal was required to address.  In the first instance, the Tribunal made no finding in relation to the effectiveness of State protection.  That was demonstrated by the Tribunal making no reference to the instrumentalities of the State, such as whether it is subject to the rule of law, or has an impartial judiciary, or effective police force.

3. The second issue is there is no finding in relation to the reasonable willingness and ability of the government and the authorities to provide protection.  Thirdly, the level of protection is insufficient because it does not actually address what are the international standards of protection that the applicant is entitled to receive.

4. In support of these contentions, Mr Slattery relies upon the decisions in Paramanayagam v Minister for Immigration [2000] FCA 1744 per Merkel J at [8] cited in Sowrimuthu v Minister for Immigration [2001] FCA 300 (“Sowrimuthu”) per Lindgren J at [52] where His Honour states:

   …it [is] necessary that the decision maker form a conclusion about the effectiveness of the relevant State protection and do so on material presented by the claimant or on material otherwise available to the decision maker".

   In Svecs v Minister for Immigration [1999] FCA 1507 (“SVECS”) per Hely J at [26] where his Honour states:

   I am unable to detect any error in the approach which RRT adopted to the second basis on which the applicants claimed refugee status. The issue is not whether the authorities can guarantee that the applicants will not suffer harm for a Convention reason, but whether, in the language of the Full Court in A, B & C v Minister for Immigration & Multicultural Affairs [1999] FCA 116 at par 42, Latvia has "effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort said to be feared" by the applicants. RRT found against the applicants on this issue. Its finding is one of fact, which cannot be impeached except in the circumstances referred to in s 476 of the Act.

   In Sowrimuthu at [50]:

   …the Court rejected the presumption which had been recognised in Ward that nations are capable of protecting their own citizens…

5. Mr Slattery submits that given the Tribunal has not made findings in regard to, nor shown consideration of, material that demonstrates Bangladesh has effective judicial and legal enforcement agencies governed and maintained by the rule of law designed to protect its nationals against harm of a sort said to be feared by the applicant, and there being no presumption in favour of such, the Tribunal has no basis upon which to say that the protection from sectarian violence feared by the applicant that is provided by the government exists, let alone is effective.  Alternatively, following Sowrimuthu per Lindgren J at [50] cited Minister for Immigration v Tas [2000] FCA 1657 per Beaumont J at [55] following Horvath v The Secretary of State for the Home Department [2000] 3 WLR 379, the question posed for the Tribunal is not whether the authorities can:

   …guarantee an adequate level of protection. Yet, as Lord Clyde observed in Horvath, the real question is whether there is a reasonable willingness on the part of the law enforcement agencies and the courts to detect, prosecute and punish offenders.

6. Mr Lloyd submits that Svecs at [24] states that:

   …RRT concluded that these are random incidents perpetrated by individuals who believe they are nationalists. RRT was not satisfied that the authorities condone the incidents in any way, or that they show themselves to be unable or unwilling to protect the Russian-speaking residents.

   That was found to be an adequate approach to the issue.  Here the findings in terms of the authorities have a demonstrated willingness and ability to intervene and protect.  Mr Lloyd submits that in these circumstances the question has not been put in a negative way and therefore shows that it is looking at the right indicia.

7. Mr Slattery submits that the Tribunal has made no finding in regards to the "reasonable willingness" and ability of State authorities to provide protection.  The Tribunal found a mere "demonstrated" willingness and ability.   Therefore, the Tribunal has no basis upon which to say that protection from sectarian violence feared by the applicant is effective.  Alternatively, following Sowrimuthu at [50] cited A v Minister for Immigration Affairs (1999) 53 ALD 545 at [40]:

   It has been suggested that a person claiming refugee status is not ordinarily entitled to rely upon the supposed inadequacy of reasonable state protection available to him or her if it is not inferior to that available to a fellow citizen at risk of serious criminal harm for non-convention reasons - Prathapan v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 41 at 48 (Madgwick J). That however is a proposition which may need to be treated with caution…

8. In Sarabjit Singh v Minister for Immigration [2002] FCA 37 (“Singh”) at [16] per Mansfield J, (citing Minister for Immigration v Praphapan (1998) 156 ALR 672 (“Praphapan”) per Lindgren J at [681] following, Minister for Immigration v Thiyagarajah (1997) 151 ALR 685 (“Thiyagarajah”) per von Doussa J at 707), the question to be asked by the Tribunal is:

   …whether there is a real chance that the government authorities would not extend the applicant:

   "the degree of protection which would be extended to ... nationals [of the relevant country] and would not provide a level of protection sufficient to remove a real chance of persecution ..."

   in the country of nationality from the private group…

9. In Singh at [12], the Tribunal had determined the issue of whether the State could provide adequate protection to the applicant upon by asking itself:

   …whether the Government of the country of nationality will extend to the applicant the same degree of protection as that accorded to any of its other nationals and whether it will provide the applicant with a level of protection sufficient to remove a real chance of persecution in the country in question by the private group concerned…

10. Mr Slattery submits that the Tribunal fell into error by considering the first limb of the proposition but conceded that the second limb was correct:  Singh at [12]. His Honour Mansfield J continued at [15] :

    It is contended that the Tribunal should have asked whether that government is unable to offer meaningful or adequate or effective protection. In my view the Tribunal has asked that question in any event. It has done so in the second part of the composite question in the passage set out in [12] above, by addressing whether the Indian government will provide the applicant with a level of protection sufficient to remove a real chance of persecution in India by the private group concerned…

    Then further at [17] His Honour states:

    …It is sufficient to observe that, in my judgment, the Tribunal did not err in considering the question whether the Indian government would extend to the applicant that degree of protection accorded to its other nationals, and upon an affirmative answer to that question to then address whether that level of protection was or is "adequate or effective or meaningful". As I have observed, the way in which the second limb of the composite question formulated by the Tribunal has been approached is consistent with the approach of the Full Courts both in Thiyagarajah and in Prathapan…

11. Mr Slattery submits that the Tribunal has fallen into error by only addressing the first limb of the proposition put forward by the Tribunal in Singh.  That Muslims and other citizens receive the same level of protection as Hindus from religious persecution is a relevant consideration, but is not conclusive of the question of the sufficiency of State protection.  Hindus may be prone to a greater level of religious persecution than Muslims. Hindus, therefore, may be in need of a greater level of protection than to which other citizens receive.  As such, without also considering whether the level of protection will also "provide a level of protection sufficient to remove a real chance of persecution" the Tribunal has no basis for determining whether or not the applicant will be afforded protection as meant under the Convention.

12. M Lloyd drew the Court’s attention to Singh in which the applicant lost because there was a separate basis for the decision unaffected by the effective protection findings that were challenged. His Honour Mansfield J at [13] states:

    In my judgment the contention of legal error must fail. In the first place, I consider that it must fail because the applicant has not sought to challenge, on this application, the conclusion of the Tribunal that his fear that he will be arrested by local police acting "privately" for the purpose of extracting money from him "does not bear the requisite connection with one of the five Convention reasons". The Tribunal's subsequent consideration whether the Indian government is unable to offer adequate protection in respect of that behaviour is an additional, but independent, reason for rejecting that part of the applicant's claim.

    In Singh at [10] there is a summary of the Tribunal’s reasons. At the end of that paragraph the Tribunal considered that even if that conduct was undertaken by local authorities, in effect acting as private extortionists, it was encouraged or condoned by the Indian government, or that the Indian government was unwilling or unable to protect the applicant from such conduct. So the language of willingness and ability is the approach that the Tribunal took which was upheld.

1. I also note that Mr Slattery referred to Prathapan which was based upon what His Honour von Doussa J had said in the Full Federal Court in Thiyagarajah.  The discussion in Thiyagarajah was of effective protection in third countries and was the inception of a second concept of effective protection.  The concept was that you could obtain effective protection in a safe third country and thereby not be entitled to refugee status in Australia.  The High Court in NAGU & Anor of 2002 v Minister for Immigration [2005] HCA 6 effectively rejected and overturned the Full Court decision in Thiyagarajah on that question.

2. Mr Slattery contends that the question before the Tribunal was whether or not it could be satisfied that the level of protection provided by the State would be adequate to account for the religious violence it was aware of.  The Tribunal's satisfaction as to the matter was premised upon the question of adequacy or equality of protection.  The relevant consideration of equal protection to displace the primary consideration of law that the Tribunal was bound to address. The Tribunal, therefore, by determining whether or not persecution will occur, by asking whether or not the State offered the same level of protection to that person as it does to other citizens, does not decide the real question in the case (Minister for Immigration v Guo & Anor (1997) 144 ALR 567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, and Gummow JJ at 580 to 582 ) as it had no rational basis upon which the answer of effectiveness of protection (Minister for Immigration v Guo & Anor at 579.5). In so doing, failed to properly assess whether there was a real chance of persecution (Htun v Minister for Immigration (2001) 194 ALR 244 per Spender J at [1] and Allsop J at [43]) in the future, the consequence of which is a constructive failure of jurisdiction.

3. Mr Lloyd, for the respondent, submits that the applicant advanced his claim in the Tribunal initially on two bases.  Firstly, that he feared persecution as a Hindu in the sense that all Hindus are at risk of harm.  Secondly, he made the particular claim at having suffered persecution in the past from Muslim extremists.  This second claim was accepted and the Tribunal dealt with that at CB 394.  This is not challenged.  This second claim was premised in part on extortion and a desire to get the applicant's property.  The Tribunal did not accept that there was any fear of persecution arising out of or relating to that incident or from those particular people.  During the hearing, the applicant acknowledged that he understands that not all Hindus are in danger in Bangladesh.  Rather, he focuses on the issue that he personally had been badly tortured in the past and, in effect, had not received protection at that time. Mr Lloyd submits that although there were periods of time when the applicant expressed his claims that all Hindus in Bangladesh faced persecution, this claim however, substantially dropped during the hearing.  The Tribunal, in its consideration of the applicant's claim starts with a comment taken from the publication Refugees International, 2003 Bangladesh: Discrimination and Displacement of Religious Minorities, 8 August, which contains the opening remark:

   Bangladesh has recently taken some steps to protect religious minorities, but discrimination continues, particularly against Hindus.(CB 391)

4. Mr Lloyd also referred the Court to a latter point of the same report and the same passage relied upon by Mr Slattery which states:

   Following the October 2001 elections, the Government of Bangladesh took steps to protect Hindus, especially during periods of Hindu festivals that could have sparked rioting between Hindus and Muslims.  In 2002, at the time of the Hindu-Muslim violence in the Indian state of Gujarat, the Government of Bangladesh was able to prevent any kind of backlash against the Hindu minority in the country.  Efforts by the Government of Bangladesh have been acknowledged in various quarters, and in the 2003 Report of the US Commission on Religious Freedom, Bangladesh is not listed as a country of concern where religious persecution against minorities is taking place.(CB 392-393)

5. Contrary to the interpretation placed on this passage by Mr Slattery,

   
   

   Mr Lloyd submits that Bangladesh is not a country of concern.  A country of concern being countries where religious persecution against minorities are taking place.  Mr Lloyd submits in that context when it comes to the Tribunal's findings and reasons, the applicant is essentially accepted as a credible witness in relation to his claims.  However, the Tribunal does not accept that from the information provided from independent sources, it is shown that Hindus are at risk of suffering persecution.  The Tribunal accepts that the applicant has suffered discrimination but that the discrimination does not amount to constituting persecution.

6. Mr Lloyd referred me to country information contained in the US State Department report on Bangladesh 2000 supplied by the applicant, where under the heading of ‘Religious Minorities’, there is a discussion about attacks on Ahmadiyas and not Hindus.  It sets out a number of attacks by Muslims on Ahmadiyas Mosques.  The report then goes on to say:

   Religious minorities are disadvantaged in practice in such areas as access to government jobs and political office.(CB 250)

7. Mr Lloyd submits that that would fall within the realm of the discrimination that the Tribunal accepted.  The report then discusses religious minorities being Hindus and focuses upon the difficulties in relation to recovering land holdings.  At the end of that discussion the report states:

   At year's end, the draft was awaiting cabinet approval.(CB 250)

8. In past years there have been cases of violence directed against religious minority communities that have also resulted in the loss of property.  The last such major incident occurred in 1992, although there was also some minor incidents of this type during the period surrounding the 1996 elections.(CB 250.8)  This is about the time that the applicant suffered his personal harm. 

9. Mr Lloyd contends that in the Tribunal's ‘Findings and Reasons’ it finds that Hindus are not commonly at risk or not as a whole at risk, other than discrimination and this does not constitute persecution.(CB 393)  It notes that there are tensions but that these are rare.  Mr Lloyd submits that the Tribunal has considered information from external sources provided by the applicant regarding present conditions in Bangladesh, and finds the government authorities have demonstrated a willingness and ability to intervene and protect the Hindu community at times when inter-communal violence seems possible.

10. Mr Lloyd suggests that Mr Slattery put some emphasis on "at times" as if that meant the government were only sporadically willing and able to intervene.  Mr Lloyd argues that within the context of the Tribunal's findings, the government was willing and able whenever it seemed possible to the authorities that there was an issue.  This would suggest that the authorities were willing and able to intervene at all times.  The Tribunal goes on and makes its finding about the non differential treatment by the government or the authorities in relation to Hindus and makes the finding:

    …the applicant's fear that he will be subjected to circumstances amounting to persecution in Bangladesh, by either Muslims, the authorities, or the government, for reasons of religion or any other Convention reason, is not well-founded.(CB395.2)

11. Mr Lloyd submits that a fair reading of the Tribunal's reasons indicates that Hindus per se do not have a well-founded fear of persecution in Bangladesh.  It is clear from the Tribunal's findings that there is no acceptance that the Bangladesh authorities are the cause of any persecution, which then leaves the possibility of harm from non State agents.  It is submitted that the Tribunal's findings about willingness and ability together with the non-differential treatment by the government or authority is more than adequate to meet the test for effective protection.

12. Mr Lloyd acknowledges that there was a line of authority to the effect that in order for effective protection to be effective it had to be so that you did not have a real chance of harm.  Mr Lloyd indicated that this had been rejected by the High Court in Minister for Immigration v Respondents S152/2003 (2004) 222 CLR 1. That case was summarised in SZDWR v Minister for Immigration [2006] FCAFC 36 at [18] – [20] in the following manner:

    18.The Australian jurisprudence on the issues of persecution and State protection do not support the notion of a third category of persecution. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 (referred to with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] 205 ALR 487; HCA 18 at [19] ("S152/2003"), Brennan CJ said that the definition of refugee must be speaking of a fear of "persecution that is official, or officially tolerated or uncontrollable by the authorities or the Courts of the Refugee’s nationality". It follows that where the conduct of police, not acting as agents of the State, is said to amount to persecution, the question which arises is whether the State and its agencies are able and willing to deal with it. The standard of protection referred to in the cases is that of a reasonably effective police force and a reasonably impartial system of justice: see S152/2003 at [28]. It is not complete efficacy and it does not require the State to act immediately. We respectfully agree with Sir Murray Stewart-Smith’s view that these requirements would raise the standard to one of a guarantee of safety. S152/2003 confirms that no country can be taken to offer such a guarantee (at [26]).

    19.In S152/2003 the majority pointed out that the context of a putative refugee is that of a person who is outside their country of nationality. That person’s unwillingness to avail themselves of the protection of their country must be owed to their fear of persecution. That unwillingness must however be justified, not merely asserted (at [19]). Their Honours referred with approval to the views of Hale LJ in the Court of Appeal in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 497 ("Horvath"), that if the willingness and ability of the State to offer protection against the acts of non-state agents is sufficient, a person’s fear of persecution will not be "well founded"; if it is insufficient it may turn the acts of others into persecution for a Convention reason; if it is insufficient it may be the reason why the applicant is unable or, if it amounts to persecution, unwilling, to avail himself or herself of the protection of their home State.

    20.In the view of the majority in S152/2003 the fact that the authorities may not be able to provide an assurance of safety, does not justify an unwillingness to seek their protection. Once the Tribunal in that case rejected the allegations that the State was complicit or encouraged harm, and that attacks were random and uncoordinated, its finding that the government had the ability to protect meant that the information before the Tribunal did not justify the conclusion that the government could not provide protection to international standards. That being so, the applicant in that case was not a victim of persecution and he could not justify his unwillingness to seek the protection of his country (at [28]- [29]).

13. Mr Lloyd submits that in the Tribunal decision there is a finding of a demonstrated willingness and ability to intervene and protect Hindus.  It is submitted that this is more than adequate to indicate that the Tribunal has turned its mind to the relevant statutory questions and also made the finding about non-differential treatment, which is part of the requirement.

14. I accept and agree with Mr Lloyd's submissions that the Tribunal's finding that the authorities were willing and able to protect the Hindu community and provide such protection in a non-discriminatory fashion was sufficient to meet the test stated by the High Court in Minister for Immigration v Respondents S152/2003, had it been necessary for the Tribunal to address that question.  I am satisfied that the Tribunal asked and answered the correct questions on the evidence before it.

Conclusion

1. I am of the view that none of the arguments of alleged jurisdictional error on the part of the decision maker can be sustained, consequently the application should be dismissed.

2. I am satisfied an order for costs should be made in this matter.  I order that the applicant pay the first respondent's costs and disbursements of and incidental to this application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  1 March 2007